Meera Nair

Posts Tagged ‘Access Copyright’

with due respect to PricewaterhouseCoopers

In Posts on August 3, 2015 at 7:20 pm

Howard Knopf (a prominent intellectual property lawyer and longstanding advocate for maintaining the limits upon copyright as prescribed by law) has drawn our attention to a new study commissioned by Access Copyright and carried out by PricewaterhouseCoopers (PwC). The study concludes that the end is nigh for educational publishing in Canada. Which in turn shall impose great hardships upon Canadian authors and illustrators, and ultimately mark the end of Canadian culture. The root cause of these troubles, according to PwC’s assessment, is the advent of fair dealing upon the Canadian educational landscape. Because fair dealing is actually practiced now (with guidance from the Association of Universities and Colleges Canada (AUCC) and Colleges and Institutes Canada (CIC)), the publishing industry is denied its time-honoured income gained through blanket-licensing of written materials for education in Canada.

There was a time when I would direct students to PwC reports as exemplars of informed and dispassionate analysis. I am not sure I would do so today. With due respect to PwC, their knowledge of copyright in general (and fair dealing in particular) is scant. But even setting aside any lack of understanding of copyright, the spectacle of being a paid messenger to a biased cause does little credit to PwC.

And the message is this: Canadian educational publishers can maintain their industry only by returning to the level of payments received from schools and post-secondary institutions in the past. Educational institutions must continue spending as before, regardless of: (1) the position of the law, (2) the general decline of funding to education, (3) availability of alternative resources, or (4) better fiscal management on the part of educators and administrators. All of this is set upon a lament about the perils of coping with new technology.

Incidentally, that lament has been heard with every past introduction of a new medium. The script remains unchanged: that existing industries are threatened, they are endeavoring to cope with a strange new world, and if their demands are not met then culture and attendant jobs will go the way of the dodo bird. A modest historical exploration would confirm that the printing press did not end the creation of literature (or the art of calligraphy), musical composition did not stop because of the player piano, the film industry did not collapse with the arrival of the VCR (indeed, studios found new markets in the form of the home-movie-collection), and digital technology has strengthened the music industry today.

Returning to the report, its premise is voiced as a complaint. In describing their mandate, PwC refers to the fair dealing guidelines framed by AUCC and CIC: “which, we understand, were developed without the input of the writing and publishing industry, claim to authorize educational institutions to make copies of portions of published works without permission from, or payment to, the copyright holder (p.13).”

PwC is clearly aware of CCH Canadian (2004) but makes selective use of it. A complete reading of the decision would have alerted PwC that the current guidelines are structured along the terms of the Access Policy of the Great Library which allowed for copying of modest amounts of work (one case, one article etc.) with requests for greater copying to be further examined (2004 SCC 13, para 61.) In declaring such a system as fair dealing, our Supreme Court gave the blueprint for the fair dealing policies now followed across Canada. Moreover, further words from the Supreme Court established the viability of sheltering legitimately, unauthorized copying in educational institutions, as fair dealing (Education v Access, 2012 SCC 37).

It is disappointing to hear that Canadians (individuals or institutions) need to solicit input from others, before choosing to act under the law as it is sanctioned by our highest court.

Of course, Access Copyright may use this report as they see fit; Knopf muses that the report will be presented to the Copyright Board when the Board moves on Access Copyright’s requests for tariffs linked to educational copying. Knopf also reiterates his observation that the Board is taking a more inquisitorial role in its hearings.

For instance, the Board might place close attention to this passage from the executive summary: “With less content purchased for the [K-12] classroom, teachers are increasingly required to fill the void by copying and repurposing published content (p.4).”

No citation is given; there is no effort to indicate how much content is involved or how often these actions occur. In the early pages of a 95-page report, it sets a tone of rampant piracy. The term “fair dealing” is entirely absent. Granted, it is the interpretation of fair dealing that is being taken to task, but to refrain from even a cursory acknowledgement that Section 29 of the Copyright Act may very well shelter these actions (depending on the facts of each situation) is, at best, an error on the part of PwC. At worst, it is intentionally misleading.

Regarding the thrust of that passage, readers may recall that when a decline of purchasing of educational content in the K-12 sector was brought to the attention of the Supreme Court in 2012, our justices acknowledged:

… as noted by the [educational representatives], there was no evidence that this decline was linked to photocopying done by teachers.  Moreover, [they] noted that there were several other factors that were likely to have contributed to the decline in sales, such as the adoption of semester teaching, a decrease in registrations, the longer lifespan of textbooks, increased use of the Internet and other electronic tools, and more resource-based learning (2012 SCC 37, para.33).

On that same theme, PwC continues:

As the market shifts away from the purchase of traditional paper-bound textbooks to the adoption of digital technology, the revenues of K-12 publishers and related creators have fallen dramatically. Total revenues generated in the K-12 Educational Publishing Market has declined by 40% since 2008 (p.4-5).

It is plausible that the collapse of global economies in 2009 also had some influence here. In any case, the K-12 educational body falls at the bottom of the funding totem pole. Transfers of taxpayer dollars flow from the federal government, through provincial and municipal governments before making their way to school boards and schools. And, unlike post-secondary institutions, tuition dollars are not a reliable component of school budgets. (Interestingly so, PwC observes a much smaller drop in revenues from the post-secondary sector; see p.12). In an era of cost-cutting and belt-tightening, it should come as no surprise that schools are spending less and looking for alternatives with respect to quality educational materials.

Perhaps one of the most startling aspects of PwC’s report is the disdain for efforts among educational communities to develop and circulate materials of their own. Section Emerging models for K-12 materials (p. 49-51) describes some of these initiatives; notably characterized as “disruptive business models” as they shift money away from the past structures of the Educational Publishing sector. The efforts by provincial governments to promote collaboration among stakeholders in the pursuit of less-expensive, suitable material for K-12 students are mentioned without praise, even though taxpayers might see such steps as productive. The report also indicates that schools are: “… increasing use of content sources from the Internet; and making more use of open-source educational content …  [content that can be copied and shared for free] (p.51).” Again, this is laudable but not to PwC:

Open Educational Resources (OER) are a threat to traditional publishers as they provide textbook and course materials for free. Some school boards have access to digital content developed by the Ministry and/or teachers free of charge. … For now, exchanges of content between provinces remain limited however this is expected to increase in the future (p.51)”

In PwC’s hands, good educational content has very narrow boundaries; such content is deemed as only those materials that are legitimate to use via a paid license fee to a member of Canada’s “Educational Publishing Industry.” But even when speaking of the decline of licensing fees in Canada, the emphasis is upon the decline of blanket license fees, meaning a set fee per student, for all students, paid to Access Copyright. (PwC seems oblivious to its patron’s own role in this decline.)

PwC acknowledges that some institutions are dealing directly with publishers for transactional licenses but observes (albeit upon incomplete data) that the transactional licensing income does not match the decline of the revenue received via Access Copyright (p.62). However, PwC neglects to point out that some publishers did not wish to do business with educational institutions. Writing in September 2013, Stephen Toope (then president of UBC) gave details of the $25 million spent at UBC in direct transactions with copyright holders and indicated that, in connection to coursepacks, some publishers/authors refused to enter into contract for a transactional license to use works.

It has come to our attention over the last year or two that some publishers and authors have decided not to grant any transactional clearances. This is unfortunate, as this restricts faculty and students from utilizing the materials produced by the affected publishers and authors and, it would seem, unnecessarily cuts-off a source of revenue for them. Nonetheless, this is the right of publishers and authors and, if they are not prepared to grant a transactional clearance, the material will not be used.

It should be noted that, perhaps in some effort to show neutrality, PwC offers its lens of assessment as clarifying its scope:

[We have] considered this issue in light of the economic theory of copyright protection and its counterbalance, the fair dealing exception… The theory is that, without proper regulation, prospective users could consume certain goods without paying for them (in other words, they could “free ride”), resulting in “market failure”. This failure is signified by a reduction in the economic incentives to develop new creative content (p.6).

However, this invocation of loaded vocabulary invites two comments. First, the pejorative emphasis upon free ride and market failure conceals the reality that good public policy will aid and abet free-riders, because it is better for society as a whole. (Health care, education and public parks all come to mind—each of these is sustained through taxpayers, with varying degrees of contributions, including the option of a zero contribution.) And second, PwC seems unaware that markets themselves are of variety and will not necessarily transact in dollars and cents. Exceptions to copyright have existed for as long as copyright itself. The “market” in which creativity thrives is one which acknowledges that some goods/services will be transacted, without awareness, and without conventional payment. This is not a failure of the market; quite the reverse. Payment is in kind. Creators of today were users of yesterday, and pay their debt to the future.

PwC has lent its voice to Access Copyright’s ongoing complaint that educational institutions now may enjoy for free, the modest discretionary copying that they once paid a license for. However, the real grievance for Canadian students, teachers and parents is that until now, educational institutions endorsed a system whereby fair dealing, a right given to Canadians by Parliament, was treated as a consumer item to be bought and paid for.

To PwC’s credit, it is upfront in stating the limitations of the report; that PwC does not verify the accuracy of the information provided to them. Readers may wish to pay close attention to the sources from which the report was compiled (p.96); there is a distinct lack of diversity in perspective.

If this report is offered to the Copyright Board, it will be of interest to hear the Board’s impressions.

a lesson from the Copyright Board

In Posts on May 31, 2015 at 7:35 am

On 22 May 2015 the Copyright Board released its decision concerning tariff rates for copying carried out in provincial and territorial governments (excluding that of the Province of Quebec). The rates set by the Board fell far short of what Access Copyright had requested; some commentaries indicate that the returns would not cover the costs of the tariff proceedings.

The Board came to its decision via a number of factors, including: (i) scrutinizing Access Copyright’s claim of the extent of both its repertoire and business relations; (ii) deferring appropriately to fair dealing, given the integral nature of the exception within the system of copyright; and (iii) being mindful that copyright only applies when a substantial part of a work has been reproduced.

For commentary, see Michael Geist (here and here), Howard Knopf (here and here), Bob Tarantino (here) and Bobby Glushko (here). To which I add my own. The decision underlines that institutional systems of fair dealing, which includes assessment of substantiality (the threshold of copyright), remain contextual affairs. This lesson is not transparently evident, but it is there.

Copyright owners receive their rights through Section 3.1 of the Copyright Act: “For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever … .” Thus, if the reproduction is insubstantial then copyright does not arise.  This was explicitly stated in CCH Canadian (2004); as Tarantino writes : “… the Supreme Court of Canada [indicates] in its discussion of fair dealing, that where “the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement.”

But as Tarantino (and the Copyright Board) remind us, the Supreme Court has also indicated, via Robinson v Cinar (2013), that substantiality is “a flexible notion … a matter of fact and degree”, to be decided “by its quality rather than its quantity.”

In its discussion about substantiality, the Board concluded that: “… without the benefit of a qualitative analysis and without even knowing which portions of a work were copied, … 1 to 2 pages of a work [to a maximum of 2.5% of the entire work] are a reasonable approximation in establishing non-substantiality (para. 204).” This measure has been greeted with enthusiasm but it is imperative that educational institutions not sleep walk into creating a de facto ceiling to insubstantiality. It bears emphasizing that the Board has contextualized its own remarks; this measure is appropriate when little or no information is available about the copying.

In terms of institutional practices–where post-secondary communities have endeavoured to develop resources and engage personnel, all to assist faculty in their understanding of appropriate uses of copyrighted material–it is viable to apply a qualitative assessment and allow for the possibility of copying more.

In Intellectual Property (2011), David Vaver makes a valuable point in connection to assessment of substantiality: “One should first screen out what cannot in law be a substantial part. ‘Part’ means ‘portion’ not ‘particle.’ … Copying ten such particles is as inoffensive as copying one (p.182-183).” As is often quoted, but appears not to receive sufficient consideration, facts are not eligible for copyright. Furthermore, processes are unlikely to meet the threshold of originality to be granted copyright. (Arguably, it is ill-advised to be creative when teaching students a process.) It is then likely that in fields of natural science, life science, mathematics and computer science, the threshold of substantiality may be higher. Even in fields typically considered to be more creative, it remains possible that a taking of more than 2.5% will not contravene substantiality when the qualitative analysis is undertaken.

The Copyright Board’s statement should be read in the same spirit as the Fair Dealing Guidelines developed by the Association of Universities and Colleges Canada (AUCC) and Colleges and Institutes Canada (CIC). Those instructions are baselines supporting legitimate unauthorized copying and more copying is always a possibility when individuals are suitably informed, or have access to informed support. It is the combination of baseline rules and discretionary support that constitute an institutional practice of fair dealing.

The Board takes note of the Supreme Court’s measured approach to unauthorized copying in institutional settings:

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).

It was the lack of a robust practice on the part of the provincial and territorial governments involved in the tariff negotiations that resulted in the Board’s scrupulous attention to every incident of copying in the evidentiary sample collected in agreement with Access Copyright and the governments (paras. 223-225).

Generally speaking, post-secondary educational practices in Canada are closely modeled upon the Great Library Access Policy that was at issue in CCH Canadian. Meaning, the policy prescribes minimums, with copying beyond the minimum contingent upon informed discussion. But informed discussion itself can unwittingly be curtailed. Fortunately, the Board reminds institutions to avoid slavish attention to rules to the extent of diminishing the contextual nature of fair dealing. As readers likely know, in CCH Canadian, the Supreme Court followed six factors with which to explore the fair dealing issue at hand; the Board emphasizes that these factors themselves must not become rigid: “… the list of factors … is not an exhaustive list, and fairness is a matter of impression.” The Board continues with a quotation from the work of Giuseppina D’Agostino:

[p]arties pleading fair dealing, and courts ultimately deciding those events, should exercise flexibility when interpreting fair dealing: raise factors germane to the case and assess evidence to support them. Whether there are six factors, seven factors, or four factors should not be the driving preoccupation … (para. 267 citing p. 197 of  The Copyright Pentalogy).

A timely reminder as the post-secondary community moves forward with solidifying their institutional systems of fair dealing.

rewriting history

In Posts on March 23, 2014 at 8:22 pm

On 11 March 2014, the Canadian Copyright Institute (CCI) released their policy paper titled A Fair and Better Way Forward, which details the Institute’s interpretation of the last two years’ of fair dealing activity. The Institute calls for dialogue with the educational community, expressly to return to the prior climate of collective licensing in Canada. Obligingly, the Institute has even scripted the dialogue; it begins with the statement “The CMEC/AUCC/ACCC guidelines are unacceptable to Canadian creators and publishers,” and ends with “The final step would be to implement [revised] guidelines through a collective licensing agreement.”

In his blog post of 14 March 2014, Michael Geist expertly discredits CCI’s interpretation of history and points out the emptiness of their not-so-veiled threats against the educational community. Readers who are tired of this subject (as I am) likely hoped that discussion of the paper would end. Regrettably, that did not happen; on 20 March 2014, Quill and Quire gave further support to the paper through an interview with Jaqueline Hushion (chair of CCI). Hushion voiced her disappointment that the paper has not received much attention from educational institutions, that efforts to “make positive, useful contact with any one or more of the three major education [organizations] in order to see if we could open a dialogue” were unsuccessful.

The premise of CCI’s paper, and Hushion’s interview, is that current challenges for the publishing sector of Canada began with the legislative expansion of fair dealing in 2010, and, Education v. Access Copyright (2012) – a Supreme Court decision that confirmed that some copying carried out in schools is fair dealing. (It must be emphasized that this decision was made without reliance upon the expanded ambit of fair dealing). According to CCI, these two factors: “… did not eliminate the need for collective licensing in educational institutions. Nor do they justify copying practices that will have a devastating impact on the market for published materials (p.2).” These two sentences invite exploration.

If I may begin with the second sentence, strictly speaking, it is irrelevant. It is not incumbent upon the education sector to prop up the publishing sector by making unnecessary payment for materials. As I have written before, this does not mean that educational institutions are not paying for copyrighted material, they are only ensuring that payments are not made in duplicate. Such a propping up would be a reprehensible waste of taxpayers’ money and the tuition dollars scraped together by students and their families. However, for a moment, let us assume that such waste is the correct course of action. CCI does not present credible evidence as to the “devastating impact.” Which is not surprising as this is not the first instance where rights holders have painted a picture of devastation without support. In Education v. Access Copyright (2012), the Supreme Court of Canada was unimpressed by this tactic:

Access Copyright pointed out that textbook sales had shrunk over 30 percent in 20 years. However, as noted by the Coalition, there was no evidence that this decline was linked to photocopying done by teachers. Moreover, it noted there were several other factors that were likely to have contributed to the decline in sales, such as the adoption of semester teaching, a decrease in registrations, the longer lifespan of textbooks, increased use of the Internet and other electronic tools, and more resource-based learning (para. 33).

Returning to the first sentence–regarding the cause of the elimination of collective licensing–I agree. Neither the expansion of fair dealing nor the Supreme Court decision is responsible. That claim to fame, goes primarily to Access Copyright.

It was not that long ago when educational institutions were quite complacent about their licensing agreements with Access Copyright. As I described two years ago, the educational market became reserved for Access Copyright, with no real protest from institutions. A relatively inexpensive and easy-to-administer deal, coupled with seeming assurances of safety, made collective licensing an attractive proposition. And Canadian universities were extremely timid in their approach with fair dealing (as I noted a few weeks ago, even the CCH Canadian decision of 2004 did not bring forward pronounced engagement with fair dealing.) The heightened focus upon fair dealing came only after a startling move by Access Copyright.

Readers may remember the summer of 2010, when Access Copyright proposed a 1300% increase in the royalty rate of the university license agreements. Along with expectation of heightened fees came demands for more rights (including for linking to material – a claim not supported by law and later rejected by the Supreme Court of Canada), no exclusion for fair dealing (despite the presence of such an exclusion in earlier licenses), and invasive surveillance of university activity. (Howard Knopf provided detailed coverage, see here.)

Shortly thereafter, Michael Geist wrote:

  … education must self-assess to determine whether it actually needs these licences or whether individual licences with the authors (or copyright holder) where needed makes more sense.  … How many courses rely heavily on recently published research that is available under open access?  How many courses limit materials primarily to textbooks that are purchased by students and not copied?  How many rely on works found in databases that are licenced separately? …

Three and a half years later, many post-secondary institutions have carried out such self-assessment and are using their resources wisely. Students may receive instruction through licensed material (paid directly to the individual provider), open-access content, publicly available materials, and through use of all exceptions available to Canadians under the Copyright Act of Canada.

CCI’s stated disappointment at the lack of engagement from the educational community is not likely to bring about a thaw in relations. The community has simply run out of patience in the wake of threats, tariff applications, one lawsuit, and incessant attempts to rewrite history.

Just some of last year’s activity on this subject:

April 2013: Access Copyright announces legal action. Michael Geist responds with a detailed analysis of how ill-conceived the action is.

September 2013: Howard Knopf covers Access Copyright’s statement of claim to the Copyright Board for a post-secondary tariff. Through the work of Graham Reynolds, I indicate that the Copyright Board was no longer something Access Copyright should take for granted. (I also took the opportunity to remind the collective’s membership that their administration was gambling with the members’ money.)

Also in September 2013, my take on the object of tension; namely the AUCC guidelines. It spanned two entries; see here and here.

December 2013: Access Copyright announces its disappointment concerning the continued trend to abstain from collective licensing. Michael Geist reminds us that collective licensing is no longer good value. My reminder was that Canadian universities were long overdue in recognizing that copyright is a set of limited rights. (I also took umbrage at the campaign of fear conducted by Access Copyright.)

December 2013: The Association of Canadian Publishers releases a Statement of Principles on Fair Dealing in Education.

February 2014: Howard Knopf provides clarification regarding ACP’s [Mis]Statement of Principles.

February 2014: Michael Geist reports that the Copyright Board has posed challenging questions to Access Copyright with respect to the proposed tariff.  The Board also offered a much-needed reminder; as copyright does not apply to insubstantial amounts of copying, fair dealing addresses substantial copying.

about time

In Posts on December 12, 2013 at 3:12 pm

Yesterday, the universities of Toronto and Western Ontario formally announced their ending of relations with Access Copyright; Michael Geist cannily summed up the proceedings as “confirming the obvious.” Access Copyright’s licensing model is unsuited to the evolving needs of academic institutions. But it would be wrong to conclude that academic institutions want to evade payment for copyrighted works; quite the contrary. It only means institutions are unwilling to pay twice over for works licensed through other means, and are less than willing to pay for reproductions that are available without cost for a variety of reasons including: open access, public availability, and fair dealing. Across Canada, academic institutions are making the best use of resources to the betterment of students, teachers, researchers etc. We should expect nothing less given the predominance of taxpayer funds that support institutions, not to mention the over and above costs passed on to students and their families.

Reviewing the press releases of the three parties involved, while the institutions (Toronto and Western) each courteously state that negotiations were conducted in “good faith by both parties”, Access Copyright is unwilling to be so gracious. Instead, it continues to argue the seeming newness of fair dealing as interpreted by the universities; that it is “untested by law and closely replicates the scope of coverage in the Access Copyright license.”

I beg forgiveness for repeating, yet again, that current practices of fair dealing were shaped expressly by the edicts of the highest court of the land, over a period of ten years. The landmark decisions that speak directly to reproduction of works in educational institutions (CCH Canadian v. Law Society (2004), Access v. Education (2012), SOCAN v. Bell (2012), ESA v. SOCAN (2012)) predate the inclusion of “education” to fair dealing as amended through the Copyright Modernization Act (2012). See Notable Supreme Court Decisions for a summary of the decade.

The flexibility we enjoy today is not the result of an act of benevolence on the part of governments or courts—it is an acknowledgement that copyright holders were previously allowed to deny Canadians the full benefit of copyright’s system of limited rights and is a corrective to that unfortunate history. Access Copyright, perhaps unwittingly, confirms this with their view that fair dealing today replicates coverage within their previous licenses.

The blanket model licenses used in the past insinuated that fair dealing only existed in the presence of a general license. Educational institutions agreed to Access Copyright’s general prescription of fair dealing as a series of quantified measures, thereby removing any hint that fair dealing is a matter of individual context. Our educational institutions are now reclaiming the individuality of fair dealing on behalf of their communities. To which I must say: it is about time.

Almost two years ago to the day, Ariel Katz posted a compelling essay titled Fair Dealing’s 100 Years of Solitude. He chronicled in detail the treatment of the exception after its 1911 codification into statutory law in the United Kingdom. “Tragically, what was supposed to be an exercise in the codification of a dynamic and evolving common-law principle ended up—with a few notable exceptions—in a hundred years of solitude and stagnation.”

Posted shortly after the Supreme Court of Canada heard the “pentalogy” cases, Katz wrote: “The cases that the Court heard last week will determine whether CCH will be seen as an outlier in copyright jurisprudence or whether it created a necessary correction that brings fair dealing back to play the role it was always supposed to play.” As 2012 would bear out, the Court rose to the occasion and continued the task of bringing fair dealing back to its time-honoured role as a flexible limit upon the rights conferred through copyright.

Returning to the current news, to better understand the 20th century Access Copyright model of blanket licensing of educational materials, it is important to understand the history of Access Copyright itself. Two years ago I gave a brief talk on this matter for the British Columbia Library Association; my notes and references can be found through this post.

Access Copyright will not go quietly into the night. They continue a campaign of fear, targeting the teachers who are learning to navigate the terrain of copyright and fair dealing: “For faculty who are accustomed to operating under Access Copyright licenses, the termination will be accompanied by disruption and uncertainty.  Faculty may be asked to change the way they share materials or assume greater personal responsibility for copyright … .”

While institutions have become much better at providing copyright information, all too often the rationale for a “10%” rule is missing or limited to a citation of CCH Canadian. In yesterday’s announcements, both institutions spoke of educating their communities about copyright; the stories that make up fair dealing’s history, past and present, ought to be the starting point. Regulations and best practices take root more quickly if they are placed in context.

heads I win …

In Posts on September 22, 2013 at 4:14 pm

Last week Howard Knopf alerted us to the latest movement by Access Copyright to impose blanket copyright fees across universities and colleges in Canada, regardless of ongoing work by educational institutions to ensure that legitimate copyright fees are paid and that legitimate fair dealing is not denied. In his post of 17 September 2012 Knopf provides Access Copyright’s statement of case to the Copyright Board of Canada, and draws attention to a number of details including the collective’s position that:

…  the fair dealing policy…  promoted by the Association of Universities and Colleges of Canada and the Association of Canadian Community Colleges and adopted by many Educational Institutions, which purports to characterize as fair dealing amounts of copying essentially identical to that licensed by Access Copyright, is unfair and results in copying that is not fair

The statement of case explains in detail what Access Copyright will do (arguments to be presented, witnesses to be called, evidence to be produced, etc.) when the Copyright Board hears this case on 11 February 2014. The Board will then either signal a shift in thinking on their part, or offer Canadian education yet another opportunity for further strengthening of fair dealing by the Supreme Court of Canada. Unpacking that sentence will take several paragraphs; I ask for patience from readers.

The starting point is the work of law professor Graham Reynolds (previously at Dalhousie University, now at the University of British Columbia). In his chapter “Of Reasonableness, Fairness, and the Public Interest, Judicial Review of the Copyright Board’s Decisions in Canada’s Copyright Pentalogy,” Reynolds illustrates that, when certifying the Access Copyright tariff for educational institutions with respect to photocopies of excerpts in K-12 schools spanning 2005-2009, the Copyright Board applied a very narrow interpretation of the principles enunciated by the Supreme Court of Canada in CCH Canadian v. Law Society of Upper Canada. The Copyright Board’s decision was appealed and finally settled by the Supreme Court (favorable towards fair dealing) in one of the famed pentalogy decisions, Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright). The difference of opinion between the Board and the Court leads, as Reynolds suggests, to the conclusion:

[T]hat fairness (in the context of fair dealing) is not as discretionary a concept as it appears to be. [Alberta(Education) … clarifies] that the purpose of the Copyright Act requires a broad, liberal approach to fairness. By implication then, fairness is not broad and open-ended; rather it is infused with certain expectations with respect to the way in which it is to be applied (namely, in a large and liberal manner).

Reynolds makes plain that the purpose of the Copyright Act is evolving, moving away from an author-centric approach to an instrumental-public interest approach. Reynolds is equally specific that such a move is not an abandonment of owners’ rights; instead, the shift only ensures that limitations upon those rights are upheld as necessary to invigorate and maintain the public domain. In their examination of the K-12 situation of excerpts, the Copyright Board aspired to the earlier approach, even though the Supreme Court had consigned that approach to history.

The evolution of purpose of copyright in Canada illustrates a well-functioning system of laws and courts. Those authorities have made it abundantly clear that legal precepts are not immutable; they evolve in concert with developments in society. Evolution may take time, but is infinitely preferable to revolution.

The delay on the part of the Copyright Board can be explained with recourse to its very function; the Board’s mandate begins with:

The Board is an economic regulatory body empowered to establish, either mandatorily or at the request of an interested party, the royalties to be paid for the use of copyrighted works …”

This is not to imply that the Board is solely concerned with setting market prices. Yet it is hardly an accessible venue for discussion of exceptions; the lengthy and expensive process tends to discourage representations of public interest. As Knopf pointed out, even the Association of Universities and Colleges of Canada, in their wisdom, “abruptly withdrew its objections and withdrew from the Copyright Board hearing of April 2012, leaving its member universities unrepresented after having spent about $1.7 million.”

The Board’s past discomfort with endorsing a large and liberal interpretation of fair dealing (in both purpose and fairness) was quite evident; when reviewing the K-12 situation of excerpts, the Board wrote: “CCH now is the unavoidable starting point (para 75).” The connotation of “unavoidable” does not suggest the Board relished the task at hand. However, as Reynolds writes:

The end result is that post-Alberta (Education), the Copyright Board is significantly constrained in its ability to shape Canadian copyright law. Abella J’s reasons for judgment clarify that the Copyright Board does not have unlimited discretion under fairness (and fair dealing more broadly) to implement policy goals or promote values that are inconsistent with the purpose of the Copyright Act, as interpreted by the Supreme Court of Canada.

The difficulty for Canadian educational institutions, and Canadians in general, is that Access Copyright seems happy to play the game of “heads-I-win, tails-we-play-again”. In repeated and continued efforts to roll back the decade-plus evolution of copyright’s purpose — through lobbying, litigation and tariff applications — they display a lack of logic, as well as a questionable use of their members’ resources.

According to Access Copyright’s website, the following portions of the funds collected are withheld before distribution:

An administrative holdback of 20% to cover Access Copyright’s administrative and operational costs.

An allocation of 5% of copyright licensing royalties has been made toward costs for current and future tariff proceedings before the Copyright Board of Canada. These tariff proceedings help us ensure fair compensation for creators and publishers when their works are copied.

An allocation of 1.5% of copyright licensing royalties collected has been made for a cultural fund approved by Access Copyright’s board of directors.

The administrative holdback (20%) is high enough, leading to the question of why a further 5% must be withheld for future days in court. But that is not all; the information for title specific distribution  indicates that an additional 25% of royalties collected through the fee increase covering 2005-2009 has been reserved to “support current and future tariff proceedings held before the Copyright Board of Canada.”

Access Copyright is gambling (with its members’ money) that the Board’s decision will be favourable to copyright holders. But, if the Supreme Court of Canada should be called upon to revisit the issue, Access Copyright would do well to remember that each adjudication of fair dealing at the Court within the last ten years has only raised the profile of fair dealing and strengthened its application.

interrupting Kirtsaeng

In Posts on April 10, 2013 at 4:32 pm

My planned third and final installment of Kirtsaeng must wait a little longer; Access Copyright is once again trying to roll back the interpretation of fair dealing fostered in Canada by both the Supreme Court of Canada and the Government of Canada. This progressive interpretation took shape slowly, with Court decisions spanning 2002-2012  and Government efforts at amendment benefiting from more than ten years of deliberation. Both bodies took measured steps that recognize the importance of maintaining copyright’s limits. Access Copyright is setting its sights on the educational community that took guidance from the government and the Court. Access Copyright states:

Canada’s writers and publishers take a stand against damaging interpretations of fair dealing by the education sector.  Access Copyright is taking legal action—on three fronts. The actions focus on York University, ministries of education, school boards and post‐secondary institutions that copy—and promote the copying—of copyright‐protected materials without a licence.

In the available statement of claim, Access Copyright identifies five members of York University as having:

…  reproduced, in whole or substantial part, and authorized the reproduction by students and third-party copyright-shops, in whole or substantial part, of more than one copyright-protected work within the Repertoire. … Each separate act of reproduction … has been undertaken without the consent or permission of the plaintiff…

(According to the statement of claim, details are available in Schedule B; this schedule is not posted online.)

Access Copyright places the blame for the individuals’ alleged infringement upon York University’s Fair Dealing Guidelines:

The arbitrary and purely mathematical extent and systematic, recurring nature of the reproduction and dealing with copyright-protected works authorized and encouraged by such guidelines is not encompassed within the fair dealing exemption under the Copyright Act.

The Copyright Act does not stipulate precise conditions of fair dealing for the reason that fair dealing must meet the flexibility inherent to the purposes it serves (research, private study, education, parody, satire, criticism/review, and news reporting). York University, like many educational institutions, has a conservative framework of what is an allowable amount and takes pains to explain the fullness of a decision of fair dealing. Drawing from CCH Canadian, York lays out questions to be asked and emphasizes: “The circumstances that qualify within the Fair Dealing Exception may vary from case to case.”

Michael Geist describes Access Copyright’s behaviour for what it is: a “desperate declaration of war against fair dealing”. He reminds us that Access Copyright’s last effort to challenge fair dealing in educational institutions resulted in failure (decided by the Supreme Court in July 2012, commentary available from here). Recycling failed arguments hardly seems like good strategy. But Access Copyright reveals an added objective, surveillance and control of all copying within post-secondary institutions:

In any event, such guidelines, are incapable of any effective, reliable or consistent enforcement by the defendant. All such purported “fair dealing” limits have been and will be regularly exceeded by the acts of reproduction and authorized reproduction by the Educators and the defendant’s students.

To suggest that students regularly exceed the limits of fair dealing is an odd tactic. The majority of fair dealing’s purposes are tasks implicitly and explicitly carried out every day in the course of educating oneself. And fair dealing is at its strongest in the hands of an individual — far from the modest 10% allowance of a work permitted in the guidelines, entire works are conceivably eligible for reproduction when a student or researcher chooses to delve into a subject. And when operating with supplemental material, the Supreme Court decision of last summer offers teachers strong support for standing in the shoes of their students. Until further details of this case come to light, nothing more can be said about the merits (or lack thereof) of Access Copyright’s claim.

All that is evident now is Access Copyright’s willingness to distort the operation of copyright to give their grievance a greater sense of pathos: “It’s harmful to arbitrarily take materials for free, without permission, without respect or regard for the sustainability of content essential for students and teachers alike.” Fair dealing is precisely the taking of materials for free, without permission. It ensures that copyright does not devolve into an instrument of absolute control, with the concomitant loss of creativity that would follow. And to suggest that fair dealing is responsible for the lack of “sustainability of content essential for students and teachers alike” ignores the behaviour of the publishing sector itself.

Which leads me back to Kirtsaeng. Next time.

Update – April 11: Howard Knopf has all the initial documents, including Schedule B, available at Excess Copyright.  But Schedule B only lists the works copied, no detail is provided as to what role those works played in the learning activity between the teachers and students.  Without more information, it is not possible to judge whether copying the works was infringement or fair dealing.

the elephant in the room

In Posts on October 8, 2012 at 3:56 pm

I thought it time to catch up on Canadian copyright events and turned to Michael Geist. It was a pleasure to read that the Association of Canadian Community Colleges (ACCC) has developed and distributed a well-balanced fair dealing policy.

A trip to the ACCC website further illustrates their proactive effort – workshops on copyright and fair dealing are scheduled for this fall:

On August 30, a fair dealing policy and an opinion letter from legal counsel were distributed to members. ACCC will hold copyright workshops this fall covering implementation of the fair dealing policy, the application of the July Supreme Court of Canada ruling on fair dealing, and the Copyright Modernization Act.  Copyright Law for Education in 2012 workshops will be held in Toronto November 12; Halifax November 14; Ottawa November 26; Calgary November 29; and Vancouver December 6.

My only quibble with ACCC is their suggestion that, “The workshops will be of particular interest to directors of library services, copyright specialists and managers responsible for copyright compliance.” The principal audience should be “faculty.” Issues of copyright or fair dealing arise when materials are chosen and those decisions are made by individual teachers.

But before anyone rushes to evaluate fair dealing, Geist reminds us that universities and colleges have already licensed copious amounts of material for use by students. Add in the profusion of publicly available material via the Internet (which carry an implied license of use) and public domain materials (which are more easily accessible thanks again to the Internet) it could well be that decisions of fair dealing will not be as prevalent as we might believe now. That said, one aspect of instructional material needs a nuanced understanding of fair dealing and copyright.

Further reading of the comments to Geist’s post brings the elephant in the room into sharper focus: course packs. By their nature, course packs are an assemblage of individual copyrighted works where each individual work may well be a candidate for fair dealing. But to immediately decide that the pack as whole is fair dealing is too hasty an action. A reasonable point from where to begin discussion lies, as commentators observed, in consideration of the material – what purpose does it serve? Does it provide a core concept, or it is illustrative to that concept?  Illustrative could mean emphasis of the concept, or setting context, or a rebuttal to the concept itself or … Again, the teacher is the one who will best understand why the material was chosen.

If the material is a core contribution to the course then ask, what was the nature of that work? A divisional line is often textbook v. journal. The journal publication may already be licensed by the institution. Or perhaps is an open-access journal? With textbooks, different questions arise. Is the textbook still on the market? If students could not purchase the work itself, an educational use of some of the work has heightened legitimacy – denying students the material serves no benefit to anyone. If it is currently available on the market, depending on the amount taken, perhaps this is where licensing is necessary. In which case, since textbooks have very visible copyright holders – publishers – negotiations are direct. Whatever fees are paid, they are not diluted by middle-men operations.

It will take a little time to gain some ease with newer business models to manage the distribution of copyrighted works. But balancing fairness to students and legitimate compensation to copyright holders has never been, nor will it ever be, easy.

they’re back

In Posts on April 16, 2012 at 7:56 pm

Access Copyright (AC)  and the Association of Universities and Colleges of Canada (AUCC) announced today an agreement of a model license that will allow for reproduction of copyrighted materials in print and digital format. Details of the agreement are minimal but the price is explicit: “The model licence will see institutions pay Access Copyright a royalty of $26.00 per full-time equivalent student annually. This royalty includes what used to be a separate 10 cents per page royalty for coursepack copying, so there will no longer be a separate royalty for such copying.”

Left unsaid is that the previous arrangement was set upon a much smaller base rate, $3.38 per full-time equivalent student. Also, the prior arrangement included royalty charges only when actual copying occurred. A reasonable condition — a customer pays only when something is actually bought. Now AC is set to receive a yearly windfall, regardless of whether all students’ education requires use of any kind of coursepack, digital or otherwise. It is conceivable that humanities, social sciences, and arts teachers utilize course packs for some courses, but it is inconceivable to assume that all have shunned textbooks for coursepacks. I remain skeptical that mathematics, physics, biology and chemistry have much use for coursepacks at all, particularly for the early years of undergraduate studies.

My skepticism could be laid to rest if AUCC (or AC) would disclose what the actual use of resource material is at Canadian educational institutions. But neither entity seems to know: “Over the course of the next six months, a survey methodology will be designed jointly to gather reliable bibliographic data and volume of usage trending data to allow Access Copyright to make fair distribution of royalties to its affiliates and to assist in establishing appropriate future licence rates.”

I hope that current and future license rates appropriately exempt open source materials, publicly available websites, journals already licensed for by libraries, and, offer a discount for textbook chapters developed by the professoriate with a healthy contribution of funding courtesy of taxpayers. (And let’s not forget fair dealing.)

While AUCC is to be congratulated for striking a harder bargain than the Universities of Toronto and Western Ontario (their negotiators could only achieve a per full-time equivalent fee of $27.50) it is disappointing that the organization that claims to have “the voice of Canadian universities”  settled on an agreement that is not in the best interests of Canadian university students. AUCC negotiated a fee that does not reflect actual consumption of copyrighted materials for each student, yet the fees will likely be paid for by all students. Paul Davidson, president of AUCC, indicates that the agreement provides “long-term certainty on price.” No doubt AC was happy to accommodate.

Update — April 17, 2012 — Michael Geist’s comments on the agreement.

what happened to January?

In Posts on January 31, 2012 at 9:20 pm

January seems all but a blur  — two new courses to teach are keeping me busy. But I had a glimpse of the outside world, long enough to notice the SOPA/ACTA protests, the growing list of digital lock dissenters, and the implications for Bill C-11. (Thank you, Michael Geist.)

Two other interesting developments occurred in the last few days. On 30 January 2012, Access Copyright issued a statement, describing an agreement reached with the Universities of Toronto and Western Ontario in relation to copying of materials in paper or digital form. The statement does not give too much by way of detail, other than to say a fee was agreed upon ($27.50 per full-time student), the agreement is backdated (how far back we do not know) and that an “indemnity provision increases the university’s legal protection against copyright infringement.”

The last clause is a curious one. It is unclear how precarious either university’s position was in terms of a viable charge of copyright infringement. But it invites the question — how stringent are the terms of the agreement as to have each university feel further protected?

Moreover, applying a set fee to all students, regardless of whether they use course packs or not, suggests a marked increase in funds flowing to Access Copyright. According to the statement, neither the universities nor Access Copyright knows how much copying is happening: “Over the course of the next year, a method will be jointly developed to assess the actual volume of copying of copyright protected materials which will assist in determining the appropriateness of the royalty structure in subsequent years.”

Could not the copying have been assessed first, and then the contract drawn up? In the meantime, as other universities have opted to do, permission and payment for copying could be handled directly with the publishers.  A task that is part of a publisher’s duty.

Howard Knopf has a good post about this matter.

A far more agreeable announcement came from the Association of Research Libraries (ARL). The Code of Best Practices in Fair Use for Academic and Research Libraries is now available. Developed in partnership with the Center for Social Media and the Washington College of Law at American University, the code describes reasonable copying that can be taken under fair use, in the pursuit of academic inquiry and higher education:

This code of best practices identifies eight sets of common current practices in the use of copyrighted materials in and around academic and research libraries, to which the doctrine of fair use can be applied. It articulates principles describing generally how and why fair use applies to each such practice or situation.  Each principle is accompanied by a list of considerations that the library community believes should inform or qualify it, limitations that should be observed to assure that the case for fair use is strong, and enhancements that could further strengthen that case.

Of course, fair use is not fair dealing and the American context differs somewhat from Canadian circumstances. But reading this code is instructive towards recognizing how Canadian practices may already support a healthy practice of fair dealing.

This is not the first such effort by the Center for Social Media, similar codes organized by genre or media practice are available here. And, the Center’s founder, Patricia Aufderheide (American University, Professor of Communication) with Peter Jaszi  (American University, Professor of Law) are the co-authors of Reclaiming Fair Use (2011).  Details are available here.

hanging out with librarians

In Posts on November 4, 2011 at 1:44 pm

Collective licensing is as deserving of a place in modern markets as any other business model, but our current situation is troubling.

Access Copyright describes its purpose as “to protect the value of intellectual property” owned by authors and publishers, “by ensuring fair compensation when their works are copied.” Value is an interesting concept – value can increase by market-demand. Value can also be artificially elevated by restricting the supply. What concerns me is that Access Copyright is able to control both axes.

And that leads to one plaguing question: How did we get into this mess? The situation now is almost surreal. How did a single organization manage to monopolize both their supply chain (the authors and publishers who produce the works) and an entire market (the educational community of English Canada)?* I decided to look for an answer to this question. Understanding how we arrived at this moment doesn’t make the situation better, but there’s comfort in knowledge.

These were my opening remarks from a panel discussion “Out of the Shadows” hosted by the BC Library Association on November 2, 2011. Fellow panelists were Paul Jones (CAUT) and Dan Burnett (Owen Bird Law Corporation). We addressed a variety of issues affecting the post-secondary community including Access Copyright licenses (or lack thereof), Bill C11 (previously Bill C32) and the political atmosphere.

The answer to my question lies in the pre-history of Access Copyright and the years that followed. Aiding my understanding were the works of Martin Friedland, Howard Knopf and Margaret Ann Wilkinson. Material was also drawn from the current annual reports of the Copyright Board of Canada and Access Copyright. My notes are available here.

It was a very enjoyable evening; my thanks to the BCLA for inviting me to participate.

* The province of Quebec operates with a different collective, Copibec, and relations there seem to be less contentious.


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