assumptions

As of this writing, in the ongoing review of the Copyright Act, 87 briefs have been posted by the Standing Committee on Industry, Science and Technology. Discussion spans a variety of topics; on the volatile issue of the use of fair dealing in post-secondary institutions, there are many submissions from academic institutions, as well as Canadian writers, publishers, and representatives thereof.

Perhaps lost in that crush are students’ voices. Writing on behalf of students across the country, are two organizations: the Canadian Alliance of Student Associations (CASA) and the Undergraduates of Canadian Research-Intensive Universities. Each submission calls on the Government to leave fair dealing unchanged from its present incarnation and practice. The students are clear in their understanding of the exception—that fair dealing is not a veil for free dealing. They also appreciate that fair dealing has the capacity to reduce some of the costs of post-secondary education.

CASA’s submission reminds all that collective licensing costs attributed to post-secondary institutions will ultimately be borne by students:

Post-secondary students are directly impacted by decisions of the Copyright Board … as it is responsible for setting tariffs on copyrighted educational material. While these tariffs are billed to post-secondary institutions, they are sometimes directly passed on to students through ancillary fees … Other times, the tariff fee is paid through [the institution’s] operating budget, which constrains the institution’s ability to provide other critical resources, including updated infrastructure and quality teaching staff, to post-secondary students.

This aspect has not received as much attention as it deserves. That said, the issue of cost was raised to the Standing Committee, but only to quantify the collective license fee as equivalent to “a case of beer per student.” While this may have been an attempt to reassure the Committee that students can bear this cost, the unspoken assumption was that all students rely on excerpts (thus necessitating a fee).

In terms of how students cope with existing fees, Aran Armutlu, chairperson of the BC Federation of Students, recently had this to say:

2nd: Assume every student is going through financial hardship. Every year that passes we are at new record highs with the costs associated w/ attending post-secondary. If there is other quality options that exist that help alleviate those costs, why wouldn’t you use it? 5/5 #OER

— Aran Armutlu (@AranTheArmenian) October 11, 2018

“Assume every student is going through financial hardship.” As assumptions go, this one is more plausible.

A day later, the Scholarly Publishing and Academic Resources Coalition (SPARC) issued promising news with respect to OER:

We did it! #OER has saved students, schools, and parents $1 billion. #OpenEd18 https://t.co/uxY9wu6yu9

— SPARC (@SPARC_NA) October 12, 2018

(Even though OER was still in its infancy in 2013, SPARC had issued a challenge to the educational community: to save $1 billion by 2018.)

Consider the time frame: 2013-2018. Astute Canadians will notice the overlap with the period of time from the last amendments to the Copyright Act, to the start of the present review. To be more explicit—this is part of the backdrop to the figures proffered to the Committee that illustrated declines in copyright-related income by educational publishers.

As SPARC explains, the goal was to document the savings that accrued when a “traditional textbook” (with traditional representing a proprietary, for-cost textbook) was replaced with an OER book. The regions/levels of savings are:

U.S. & Canada Higher Ed: $921,783,169
U.S. & Canada K-12: $45,051,066
International: $38,500,000
Total: $1,005,334,235

Without further details of the Higher Ed savings, we do not know how much of the nearly $922 million dollars is specific to Canadian students. Yet, a reasonable assumption would be that millions of dollars are being saved. This is relevant to any discussion concerning declines in textbook income, or declines in licensing income from excerpts of textbooks.

Committee members could also reasonably assume that post-secondary institutions are slowly, but steadily, addressing the question posed by Mr. Armutlu: “If there are other quality options that exist that help alleviate those costs, why wouldn’t you use it?” The trend to OER is likely to increase.

Granted, at this time, OER substitution is not prevalent at all levels of study across all disciplines. But, SPARC’s data should provoke at least a modicum of curiosity against the claims that fair dealing alone is responsible for the drop in income of copyright owners, and, whether reliance on excerpts applies to the entirety of the Canadian post-secondary student population.