Meera Nair

an ideal tariff

In Posts on March 14, 2019 at 7:15 am

Last month Howard Knopf reminded us that the Copyright Board is nearing completion of its work on the issue of collective licensing in post-secondary educational institutions. Under discussion are Access Copyright’s requests for tariffs on some unauthorized copying of copyright-protected materials. The Board has in fact invited parties to “comment on the feasibility and clarity of the terms of the tariff.”

While the documents pertaining to the proposed tariffs indicate that students are to be considered as “authorized users,” the aim of collective licensing is largely to address instances where teachers choose to distribute portions of copyright-protected works, often described as excerpts, to students.

Ideally, any tariff for a collective license would hew as close as possible to the principle of individual and fair negotiation between two parties for compensable use of content, and be based on a clear understanding, not only of the market, but also of Canadian copyright law. To that end, let us hope that the Copyright Board will engage in a thorough investigation of three hitherto-unchallenged assumptions, namely that:

  1. Unauthorized copying of copyright-protected materials occurs uniformly across institutions.
  2. Such unauthorized copying must always be paid for.
  3. Appropriate payment has not already been made.

1. The Scale of Unauthorized Copying

In the political arena, Access Copyright’s portrayal of unauthorized copying, as copying running amok at campuses, was met with neither question nor criticism. Ideally, the Board would engage in some investigation of this claim. At the very least, the Board should recognize that when a textbook is assigned to students as their principle source of reference, the question of excerpts (or course-packs) becomes moot.

For instance, a cohort of approximately 200 students pursuing the degree of Bachelor of Applied Sciences in Engineering at a reputable Canadian university are routinely assigned textbooks as their sole resource for learning. (Full disclosure: one of the cohort is my daughter. In her case, depending on what she might spend, she bought new books, used books, or on occasion nothing at all, relying instead on the copy held in the Reserves section of her institution’s library.)

An ideal tariff would ensure that institutions may opt-out on behalf of those students for whom their principal learning resource is not an assemblage of excerpts. While this strongly suggests that many students in the STEM fields will be removed from the FTE count, other disciplines may fall within the same framework. For instance, Nick Mount, a professor in the Department of English at University of Toronto writes: “In all my classes, undergraduate and graduate, I assign and expect students to purchase books, including many books by living Canadian writers. I stopped using course-packs years ago: they’re aesthetically ugly, and their digital replacements don’t work well in classrooms. To the best of my knowledge my colleagues follow much the same practice.”

The calculation of the tariff must reflect only those students who actually consume works by excerpt, but only when such excerpts are entitled to payment.

2. Some types of unauthorized copying 

i. OER.

The use of open-educational resources (OER) is becoming more common in Canada. These works, often funded by taxpayers, and developed by credible authorities in various disciplines, are released under open licenses whereby users (be they teacher or student) may adapt, copy, or post content without additional fees. While adoption of such resources is not uniform across the country, the trend is sloping upward.[1] The Board should take particular note of the efforts at Kwantlen Polytechnic University (KPU), the first institution in Canada where entire programs have been designed on the basis of open resources and are now showing escalating enrollment.

An ideal tariff would ensure that institutions may opt-out on behalf of, and thus remove from FTE count, those students participating in programs for which the institution has actively sought to ensure a zero cost for materials, by developing and/or adopting OER content.

ii. Exceptions.

Within the Copyright Act are various measures[2] that permit unauthorized copying of copyright-protected materials; chief among these is Section 29 Fair Dealing. As use of Fair Dealing has been contentious, the Copyright Board might wish to limit its consideration of fair dealing to only that which has been supported by the Supreme Court of Canada. To that end, the famed CCH case of 2004 is instructive—the final decision was one of unanimity and the measures of content reproduced and accepted as fair dealing ranged from a few pages to 21% of an entire textbook.[3]

Naturally, quantity alone is never solely determinative of fair dealing; however, this must raise at least some question as to why Access Copyright is asking that educational institutions pay a fee for distributing content which may well be fair dealing. Particularly as prior to the amendments of 2012, the Supreme Court sanctioned classroom distribution of short excerpts which were supplemental to principal learning resources, under the auspices of the category of “private study,” within fair dealing.[4]

An ideal tariff would ensure that institutions may remove from FTE count, those students enrolled in courses where supplemental excerpts would sit within the threshold of fair dealing as appropriate under the authority of CCH (2004). As the Copyright Board itself noted in 2009, “CCH now is the unavoidable starting point of any analysis of the notion of fair dealing (para. 75).”

And while the Board’s discomfort was evident then, their careful adherence to the law paved the way to the Board’s more nuanced understanding of fair dealing as was exemplified in 2015:

In CCH, the Supreme Court of Canada stated that fair dealing can be made out either by demonstrating that there exists a general practice that is based upon an enumerated fair-dealing purpose, and, is in fact, fair, or by demonstrating that a particular copying event … was fair dealing (para. 223, citing para. 63 of CCH Canadian).

3. Fair remuneration for copying

Perhaps Access Copyright is behaving in good faith, and is simply unaware of changing patterns of development and distribution of educational resources. However, members of Canada’s publishing sector cannot pretend to be without guile, as it has come to light that they have chosen to license their wares for use in educational institutions, yet insisted to Canadian MPs that the educational community was not paying its fair share. In a comprehensive post, dated to 23 November 2018, Michael Geist laid bare the claims of some Canadian presses – that they were suffering for the lack of payment from educational institutions – when in fact:

… educational institutions typically purchase both access to the work and a licence for multiple uses and/or inclusion in a CMS. This means that the e-book licence replaces the Access Copyright licence, compensating publishers and authors while providing students and teachers with greater flexibility and value. Moreover, many of the licences are perpetual, meaning that rights holders are paid a higher upfront fee in return for no subsequent royalties or payments.

An ideal tariff issued by the Copyright Board would ensure that institutions do not pay a second time for content already paid for through voluntary market-agreements between parties.

From the profusion of briefs submitted to the Federal Government during last year’s Copyright Review, it is evident that, over the last seven years, consumption of content has evolved in the post-secondary community. Educational institutions have come to rely increasingly on licensed content, where licenses are of both the proprietary and open variety. Unauthorized copying reliant on exceptions to copyright is decreasing. And yet, if Access Copyright has its way, Canadian students will be charged fees to cover the costs assessed against their institution, regardless of whether that fee represents actual compensable transactions of content and use by each student.

 

[1] In October 2018, the Scholarly Publishing and Academic Resources Coalition (SPARC) issued promising news with respect to OER: $1 billion of savings had been realized through global adoption of open educational resources. While the lion’s share of this savings was generated in the United States, Canada is onboard with OER development and adoption. Notably, the province of British Columbia alone achieved over $10 million in savings between 2012-2019.

[2] Section 29, Fair Dealing is principle among them. But also applicable to students’ learning are S29.21 NonCommercial User Generated Content and S30.4 Work available through Internet. Plus, there are a host of exceptions addressing Educational Institutions.  The proposals offered by Access Copyright presume to discard the very existence of exceptions; said another way, the very existence of the Copyright Act.

[3] CCH is predominantly known by the Supreme Court’s final adjudication of the case, but scrutiny of the case at the trial division reveals the amounts copied without authorization; see CCH Canadian Ltd. v. Law Society of Upper Canada. (1999)  Para. 136.  These copies were later accepted as fair dealing by the Supreme Court. CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13

[4] Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37.

fair dealing week 2019

In Posts on February 24, 2019 at 7:36 pm

Fair Dealing week begins tomorrow with seminars, workshops, and discussion spanning the country. It speaks well of the efforts of post-secondary communities to raise understanding of its importance. Many fair dealing stories will circulate this week; I have one of my own to add. Fair dealing is personal.

My parents emigrated from India to Canada in the 1960s. As to why they chose Canada, my mother later explained the decision as a process of elimination. Both had grown up through the country’s Independence struggle and lived the life of noncooperation, whatever hardship it may have entailed. So Britain never made the list. The United States was given some consideration; but, in my mother’s words: “We had all wept over Uncle Tom’s Cabin.” And so “No” to a society that was still struggling to provide civil rights to all its citizens. Canada? It seemed nice, inoffensive. Years later my mother gave me these memorable words: “I didn’t realize we had left one colonized nation, only to join another.”

That the undercurrent of being a colonized nation still seemed to permeate Canada in the twentieth century hints at how close to the surface that current was in the years immediately following Confederation. Canadian industry was particularly affected, including the publishing sector. I cover some of this history in “The Geopolitics of Nineteenth-Century Canadian Copyright, as seen by some British Authors, in the recently published Canada 150 Special Issue of the Papers of the Bibliographical Society. This paper complements an earlier work of mine, “The Copyright Act of 1889—A Declaration of Independence,” published by the Canadian Historical Review, which examined the same events, from documents compiled by the British Government. Taken together, it is a reminder that copyright policy cannot be enacted in a vacuum–the effect of change is conditioned by history.

Returning to the theme in hand, prior to leaving India, my mother was a Lecturer in Mathematics and a freelance writer of some repute. In Canada, while my brother and I were young, she stayed home with us but would occasionally return to writing. However, multiculturalism was not yet a gleam in anyone’s eye, and diversity in publishing nonexistent. The views of a visible minority woman, no matter how educated, no matter how capable with her pen, were of little interest to the editors of the day. (No amount of copyright could change this.) And without the approval of the gatekeepers, there was no means to reach an audience.

My mother’s assays in writing were infrequent as it was a period of coming to grips with total responsibility for housekeeping and child rearing amid the inescapable isolation of immigrants, not to speak of the deflation of rejections. But one rejection will always stand out in my mind, because the work was praised by the editor (from Macleans no less) but still declined as it had been forestalled in timeliness. The cause of the delay? A well-meaning intermediary had insisted that my mother’s quoting of one sentence from Subject India, by H.N. Brailsford, required copyright clearance.

Because of that inept advice, my mother had dutifully written to the book’s publisher, who had then contacted Brailsford’s widow, who sent back a charming letter saying how happy she was that her husband’s work was still being read. But this provision of consent took time to reach Canada; in the meantime, Macleans had already chosen their content.

Fair Dealing matters. Individual writers, musicians and artists should not need to be well-versed in the intricacies of copyright law, to benefit by exceptions to copyright defined in the law. It falls to teachers, administrators, and distributors to have the confidence of knowing that unauthorized use may be lawful.

Note: Subject India is now available through the Internet Archive.

excerpts

In Posts on December 19, 2018 at 5:06 pm

Last week marked the end of submissions to the committees of Industry and Heritage. It now falls to analysts to sift through data and testimony, and assist Members of Parliament as they consider the next steps for Canada and copyright.

The most disturbing aspect of this review to-date, has been observing the predominantly uncritical response to two fabrications: (1) that Canadian Literature is in peril; and (2) that a collective license via Access Copyright is the seeming solution to the seeming problem.

(Note: In a recent column, Kate Taylor conveys this happy news: “Canada’s literary culture is healthy: Writers keep writing and Canadian-owned publishers are publishing as many titles as ever, while independent bookstores are also stable.”)

Left under-articulated is the very real risk that Canada will remain on the sidelines in a world governed by knowledge economies. This is not merely about the unfairness of holding students captive to a market that is no longer relevant, it is about the regressive attitudes to creative activity that students are subjected to.

And so, I hastened to submit one more brief, this time to the Standing Committee on Canadian Heritage, before the deadline. What follows are some excerpts.


I commend this department’s interest in supporting Canadian artists across the spectrum of creative endeavor. However, I ask that you expand your scope of inquiry to include not only the artists we have today, but those to come tomorrow. Given the tenor of dialogue so far, students are particularly vulnerable to assume costs that are irrelevant to their studies, and irreconcilable to their means. Moreover, our youth are not being afforded the fullest opportunity to further their creative instincts through measures already available under the law. Copyright chill and abuse are real.

I reminded the Committee of our past history with the system of copyright, that it was designed to the advantage of other nations. The stunning success of Canadian Literature, with both writers and publishers deserving praise, is due to efforts outside the arena of copyright. Nick Mount, Canada’s leading authority on the subject, has been unequivocal on this point. (See also his submission to the copyright review.)

I then sought to clarify the misconception that the decline in educational collective licensing was principally due to the 2012 amendments; that in fact,

The catalyst for the exodus from collective licensing occurred two years prior. In 2010, Access Copyright sought a 1300% fee increase. Granted, the earlier fee was out of date; an increase commensurate with inflation would not have attracted much attention. But given the extent of the increase, coupled with not only heightened requirements of reporting (which raised concerns of privacy) but also an effort to redefine the very nature of copyright (something only Parliament may do), many institutions began to give serious consideration to the viability of managing their operations internally.

Drawing from a talk I gave in 2011 (based on academic literature and the publicly released Friedland report), I emphasized that Access Copyright’s operation had been challenged from the very start. It sought to serve two masters (writers and publishers); but as publishers held most of the cards,

Access Copyright bolstered payments [to writers], regardless of whether works were used in educational institutions. Unfortunately, that set the stage for an unsustainable operation. Despite some evolution, it continues today. The payments provided by Access Copyright to its creator affiliates through its Payback system, rely on creation of work, rather than the use thereof. As Access Copyright’s creator affiliates grow in number, one should expect that fees will escalate just to keep pace with distribution payments.

Yet, today, many parties have called for compulsory collective licensing of educational copying.

This is particularly disturbing given the volume of evidence that detail the rise in direct licensing between educational institutions and third-party publishers, licenses that include both journals and books, and allow for both access and reproduction. Furthermore, Canadian institutions are increasing their selection of open educational resources as primary textbooks. Taken together, we see not only the present, but a future where Access Copyright’s services are relied on less and less, but would cost more and more.

Let there be no mistake: compulsory collective licensing would place an unnecessary and unfair burden on students. When too many students are financing their education through debt, it is more than cavalier to dismiss the cost as merely that of a case of beer. Governments and educational institutions have an ethical obligation not to impose waste on students’ meagre resources.

Further to students’ disadvantage are ongoing misunderstandings about legitimate, unauthorized use of protected material. Some of the instances of copyright chill and abuse that have been brought to my attention:

  1. A parent informed me that her twelve-year-old had come home “scared to death,” all because of a strident lecture at school. A teacher had forbidden the students from engaging with content found via the Internet, a prohibition expounded in the name of copyright. 
  2. A parent informed me that her daughter’s creative efforts, posted to YouTube, had been removed. This budding filmmaker said to her mother: “I didn’t know it was wrong.” To be clear, she did nothing wrong. YouTube’s overzealous content-identification system had resulted in the take-down of her lawful creation.
  3. A group of worried students showed me a notice from a copyright-owner, threatening them with serious consequences if they had the temerity to quote from his father’s work, without first seeking his permission and making payment.
  4. A parent sent me a Use of Technology agreement required at the local high-school. Parents were asked to give consent such that the school may search a student’s smartphone if the school “feels” that a rule has been broken. Among the rules listed: “honour copyright.” This may be due to the misplaced fear that schools could be liable for the activity of students; it speaks to the reality that administrations prefer to play it safe and discourage young people from lawful uses of copyright-protected materials.

Such misinformation spread among our nascent creators is not what will place Canada in positions of strength in decades to come:

If we train generations of Canadians into believing that creative effort, scientific inquiry, technological advancement, or a free press, are all predicated on a system of permission-then-payment, Canada’s creative future looks bleak.

This will be all the more painful when we consider that current technology and current modes of engagement offer promise to young creators today. They now enjoy what eluded Canadian creators in the nineteenth century: the capacity to promote themselves at minimal cost. Upcoming creators have the opportunity to find their own audience;[1] a lack of publisher no longer limits awareness of Canadian talent.

Given that our Prime Minister has particular interest in fostering the next generations, it would be entirely appropriate for the Department of Canadian Heritage to give particular attention to how youth, students, and amateur creators, fare under the system of copyright, as it exists now and how it may change next year.

I closed with six recommendations. As the Heritage website has not yet been updated, my complete brief is here.

As I write this, my daughter is finishing her third year of engineering studies. The outcome of the copyright review is not likely to have any direct bearing on her remaining time as an undergraduate student, but there are many more like her to come.

 

[1] Canada’s Instagram poet Rupi Kaur comes to mind; her own self-promotion led to a publisher and then 77 weeks on the New York Times’ best-seller list; see Tariro Mzezewa, New York Times. Similarly, 2011 Canada Reads’ winner Terry Fallis began his successful journey via his own podcasts; see Shannon Rupp, The Tyee. Martin Kerr is a much-loved singer/songwriter/musician based in Edmonton; through his own talent and hard work, he has been independently producing music for ten years. Kerr began by singing in markets and festivals; today he sells out the Winspear Centre. One generation earlier that would have been an impossibility. With dreams of making it big, too many musicians were conscripted by record companies and emerged with only debt to show for it.