omitting facts, ignoring logic

Yesterday John Degen (poet, novelist and executive director of The Writers’ Union of Canada) presented his views concerning copyright and education via The Hill Times. The publication is behind a paywall, making it less than easy to acquire, read, or rebut. But if one is trying to lobby Parliament, the venue of publication is appropriate.

Degen is entitled to his opinions, but does readers a disservice by the distortion of history he presented. There might have been reasonable entertainment value from the diatribe, had the issue not involved the intellectual property rights of generations to come. Our parliamentarians could be forgiven for initially thinking that the copyright amendments of 2012 jettisoned the entirety of Section 3.1 (rights of copyright owners), exclusively to the benefit of teachers and students.

But may we assume that any Member of Parliament, in the face of such a hysterical outburst, as opposed to considered judgments from the Supreme Court of Canada, will investigate the rights and wrongs of the matter? That investigation would lead to the following facts:

• Copyright is a system of limited rights, whereby the limits ensure balance is struck between the rights of copyright owners and rights of copyright users.
• Fair dealing is one means by which limits are exercised; fair dealing is not piracy.
• Fair dealing allows for some unauthorized uses of copyrighted material, subject to a fairness analysis.
• That analysis was shaped by the Supreme Court of Canada in 2004; the justices have since walked-the-walk on multiple occasions.
• In 2012, the range of fair dealing was expanded from only the options of private study and research, to include education, parody and satire.
• Every Supreme Court decision supporting fair dealing occurred before the 2012 amendments took effect. Meaning, the inclusion of education was superfluous to establishing balance between owners’ rights and users’ rights.
• Educational institutions make significant payments for purchased or licensed materials; the difference now is that such payments tend to flow directly to copyright owners and not to a middle-man collective entity such as Access Copyright.
• Perfunctory announcements of declines in author’s incomes are, no more than perfunctory! One has to look at the larger context of any situation. A favorite report pointed to by The Writers’ Union (and Access Copyright) is a creation by PricewaterhouseCoopers which paints a dire picture of declining income to the educational textbook industry, with the seeming conclusion of an impending loss of quality educational content. However, the analysis within the report omits such basic details as the advent of quality content via open education resources and the global economic mayhem which began in 2008 and ensured individuals/institutions had less dollars to spend for years thereafter. Details are here.
• The process of setting tariffs by the Copyright Board is complex, and educational institutions themselves are puzzled at the lack of involvement by national representatives. But to attribute a spiteful motive to Canadian education as a whole is hardly worthy of anyone who claims to be a standard bearer for the preservation of Canadian culture.

Some weeks ago Degen’s colleague Heather Menzies also presented her interpretation of history with respect to educational uses of copyrighted material; my rebuttal is here. It appears that the Writers’ Union of Canada is eager to wrap copyright in the maple leaf and hope that Canadians will overlook the absence of facts or logic.