in defense of fair dealing

A response to Heather Menzies and the Globe and Mail.

Last Thursday, the Globe and Mail published an op/ed penned by author Heather Menzies, chair of The Writers’ Union of Canada. Ms. Menzies claims that a provision of law, fair dealing, is responsible for a decline in the income and well-being of Canadian authors. While she is perfectly entitled to her opinion, her argument is based on a number of inaccuracies.

At the outset, it must be noted that the system of copyright, since its inception as statutory law in 1710, was never intended to operate as a grant of absolute control. Rights offered in the name of copyright were limited, for the vital reason that the goals of the system of copyright (creativity and innovation) rely on some degree of unauthorized uses of prior works. The mantra that more control brings about more creativity is no more than political theatre; the age of Shakespeare, the industrial revolution, and even the 20^th century offer enough evidence that creativity has thrived in periods of lesser control. Nevertheless, fair dealing enthusiasts will agree that it is as important to respect the rights afforded to authors, as to respect the use provided to future authors via fair dealing.

Ms. Menzies writes: “Authors have always made copyright legislation work for them, even though it originated in a 16th-century move to restrict the right to copy texts to the Stationers’ Company, a booksellers’ cartel based in London, England, and had nothing to do with writers.” It is true that copyright’s entrance into law was at the behest of booksellers eager to protect their assets, not necessarily their authors. Yet some authors obliged with the trope of the starving author during negotiations. In the three hundred years since, with the same trope, the rights of control in the system of copyright were systematically expanded, while the rights of unauthorized use were inexorably whittled away. Given that, at the present time, copyright is more expansive in breadth and depth than it has ever been, if authors are still starving, perhaps copyright is neither the problem, nor the solution.

As to the role of collective licensing in the management of educational uses of copyrighted material throughout Canada, it is true that Access Copyright facilitated this effort in the past. As to why post-secondary institutions no longer wish to rely on Access Copyright’s services, Ms. Menzies omits to indicate that in 2010 Access Copyright sought a 1300% increase in fees, demanded absurdly intrusive reporting requirements from institutions, and took it upon itself to redefine the very nature of copyright. (A privilege that Parliament, and no other, enjoys.) Yet post-secondary institutions continue to spend millions of dollars in purchasing and licensing fees, and make these payments directly to copyright owners. As to where those funds go after that point, it is not for an institution to say.

Furthermore, even though “education” was added to the allowable purposes of fair dealing through the amendments which came into force in 2012, three Supreme Court decisions upholding fair dealing in teaching and learning, and research, were all based upon the earlier language of fair dealing. That detail is also omitted in Ms. Menzies’ account. Instead, she opts to equate the decline of authors’ incomes with the later expansion of fair dealing and invokes a PricewaterhouseCoopers study to present dire consequences for education in Canada in the years ahead.

That study, commissioned by Access Copyright, was based upon very narrow parameters. (I provide analysis in “With due respect to PricewaterhouseCoopers.”) The study focuses upon revenue streams within the educational publishing industry and finds that revenue has declined over recent years. This observation is correlated to heightened attention paid to fair dealing by educational institutions, arriving at the seeming causality that fair dealing is to blame. Whereas in reality, there are more options for obtaining quality content at lesser or no cost. Teachers may avail themselves of publicly available material from the internet, open-access content, and material expressly developed by other teachers and local communities. As with any market, when more options are available, former monopolies must see their market-share decline. And lurking in the background of recent trends was nothing less than the global economic mayhem that began in 2008, which ensured that, across all walks of life, individuals and institutions had less money to spend. Yet the study’s authors appear unaware, or unconcerned, about larger macroeconomic conditions.

Finally, Ms. Menzies invokes the realm of First Nations’ writings and the importance of protecting their writers. No argument there. Our pantheon of writers is worthy of praise and we all benefit when that roster swells. Yet Ms. Menzies will not acknowledge that of the writers we laud today, many enjoyed their public education before the mania to count the number of words a teacher or librarian might share with their charges became the educational norm. Those writers enjoyed a more open reading environment in their classrooms; times being what they were, it was not necessary to speak of “fair dealing.” But it was fair dealing.

It would be only fair to suggest that such openness contributed to the success of members of The Writers’ Union of Canada. That they should now begrudge future generations of writers that same benefit, is truly disappointing.