York; some initial thoughts

On 22 April 2020, the Federal Court of Appeal released its decision concerning the dispute between York University and Access Copyright. Two issues were probed by the Court: (i) Were tariffs mandatory? and (ii) Were York’s fair dealing guidelines essentially fair? The outcome resembles a draw, with the university prevailing on the first point (tariffs are not mandatory), and Access Copyright emerging victorious on the second as the Court of Appeals could not provide a stamp of approval to York’s guidelines.

The decision has generated much commentary from advocates of both sides of this debate (i.e., Michael Geist, The Writers’ Union of Canada, Lisa Di Valentino, The Association of Canadian Publishers, Adrian Sheppard, Access Copyright). A potential next step is an appeal to the Supreme Court of Canada; Michal Jaworski and David Bowden of Clark Wilson have written, “Given the interests at stake on both sides, there is a reasonably high likelihood that one or both parties will be seriously exploring leave to appeal (or cross-appeal) to the Supreme Court of Canada.”

Writing for the Court, Justice Pelletier tended to the tariff issue first. After detailing the events which led to the appeal, he writes: “In my view these textual arguments are best dealt with in the legislative context in which they arose (para 47).” Distilling the appeal to a central question—whether the relationship between a user and copyright-owner changes with the involvement of the Copyright Board—Pelletier further writes, “This is a question with a long history, which is best understood through the laborious process of a step by step historical review (para 56).”

Integral to Pelletier’s analysis is a Supreme Court case, Vigneux v. Canadian Performing Right Society Ltd., [1943]. At that time, then-Chief Justice Duff had traced historical details relating to the development of collective licensing in Canada:

… the legislature evidently became aware of the necessity of regulating the exercise of the power acquired by such societies (I shall refer to them as dealers in performing rights) to control the public performance of such musical and dramatico-musical works. […]  … it is evident that the legislature realized in 1931 that this business in which the dealers were engaged is a business affected with a public interest (para 57).

Pelletier continues: “It can thus be seen that the mischief which Parliament sought to correct was the quasi-monopoly which performing rights societies had achieved by acquiring performing rights from the original owners of the copyright (para 58).” He describes in detail the criteria Parliament stipulated as necessary conditions to be met by the performing rights societies (including “mandatory filing of a statement of the works in a society’s repertoire”.)

As befitting a commitment to historical exploration, multiple Canadian copyright statutes are examined in order to trace the evolution (or not) of relevant provisions regarding collective licensing. A systematic unearthing of facts leads to a decisive conclusion: “A final tariff would not be enforceable against York because tariffs do not bind non-licensees. If a final tariff would not be binding, the conclusion can hardly be different for an interim tariff (para 204).”

But when reading the examination of the second issue, the analysis of fair dealing, I could not help but be struck by the difference in the judicial treatment of the two sections. The absence of historical reflection with respect to fair dealing in Canada left an aura of mystery—as if the decision had been crafted by two different parties.

Readers may wish to pay particular attention to an acknowledgement from Pelletier: “Both York and these interveners cite an article by Professor Ariel Katz, “Spectre: Canadian Copyright and the Mandatory Tariff – Part I”, (2015) 27 IPJ 151, that I found very useful in addressing the question of the enforceability of tariffs (para 32).” Such restraint is perhaps the norm among the judiciary; I hope it is not taken as disrespect to the FCA, if I point out that the laborious step by step historical review was wrought in large part by Ariel Katz. He explored every aspect related to Access Copyright’s claim that tariffs were mandatory; more specifically, he probed both caselaw and revisions of the Copyright Act, over the span of the twentieth century.

Ariel’s work is well worth reading in its entirety. He reminds us that Duff’s salient words reflected the sentiment of the Parker (Royal) Commission of 1935, “whose recommendations formed the basis for statutory amendments in 1936.” That in fact Parliament sought to address, as Ariel writes, “the mischief“ occurring as control over musical repertoire had become concentrated in one society’s hands, with no protection to the public interest. He quotes Judge Parker at length; abbreviated here:

… Competition no longer exists. A monopoly, or super-monopoly, has arisen. No one quarrels with the author, composer and publisher pooling their rights and placing them in a central bureau for the purpose of collecting a fair fee for the same and of preventing infringement thereof. It is an inevitable monopoly existing for the convenience of the owner and the user; but it should not be exercised arbitrarily and without restraint (180).

For readers interested in further details about the Parker Commission, Louis J. D’Alton’s MA Thesis, The Copyright Board and Tribunals Process: Users in the Balance (2016), adds to our understanding of present events. He emphasizes the dysfunction of the time; i.e., “Complaints about the [society’s] activities by music users had been raised in the Canadian House of Commons, where vivid debate characterized the [society] as ‘evil and that some form of control was needed to ‘put an end to price fixing and extortion (p.43).’” The Commission report itself is here.

From a close examination of Duff’s language, Ariel identifies the Canadian Parliament’s response as refining the process of collective licensing along two dimensions.

i. “regulating the exercise of power” by CMOs, i.e., the opposite of enhancing their power,

ii. [ensuring that] participation in a collective “qualified” copyright owners’ rights, i.e., the opposite of expanding them. Copyright holders’ discretion was replaced with “a statutory license vested in everybody who pays or tenders to the dealer [the CMO] fee, charge or royalty which has been fixed by the Copyright Appeal Board” …

As is evident from Ariel’s work, these axes remained consistent throughout subsequent evolution of the Copyright Act, to the conclusion that: “The ‘mandatory tariff’ theory is based on dubious legal foundations. Established case law debunks it, standard principles of statutory interpretation contradict it, and the legislative history discredits it (p.210).” A sentiment echoed by Pelletier: “While there have been modifications in the statutory language used between 1936 and 2012, the continous references to licensing schemes and the retention of the key elements of the 1936 Act leave little doubt that tariffs are not mandatory (para 202).”

It is regrettable that York and its legal team failed to make better use of Ariel’s work at the outset of this dispute.

Some commentary on the fair dealing aspect remains necessary — that will follow another day. For now, the dual personalities of the FCA decision is no longer so mysterious.

an ideal tariff

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.

wrapping copyright in the maple leaf

On Friday, The Globe and Mail published “Kids will suffer if Canada’s copyright legislation doesn’t change” by Kate Taylor. I usually enjoy reading Taylor’s work; her capacity to grasp the heart of an issue by delving into underlying facts is often impressive. Unfortunately, on this occasion, her exploration is incomplete and emotion is presented as analysis.

While amendment of the Copyright Act is a year away, there should be no doubt that lobbying has begun. As per the time-honoured script, the essential step is to wrap copyright in the maple leaf. The very fabric of Canada is under assault, and only strengthening copyright can save us all. The script makes for good drama, but is short on evidence.

Taylor, like John Degen last month and Heather Menzies earlier this year, places the challenges of Canada’s educational publishing industry at the feet of the 2012 statutory expansion of fair dealing. (Such a selective invocation of Canadian copyright-related history conveniently omits any mention of the role played by Access Copyright in bringing about the decline of collective licensing.) The claim that reduced revenue from textbook sales is due to unauthorized copying is not new. But when put to the Supreme Court, after consideration of all the facts, a majority of the judges felt that the conclusion did not logically follow:

Access Copyright pointed out that textbook sales had shrunk over 30 percent in 20 years.  … [but] there was no evidence that this decline was linked to photocopying done by teachers … several other factors [are] 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).

But the rising use of Internet-based materials does not placate those who have taken it upon themselves to protect our children. Taylor writes: “ … teachers increasingly turn to free online materials, using fewer Canadian sources in the classroom and fewer materials directly tied to the provincial curriculum. [Advocates] are concerned there is no quality control of free material.” It is entirely plausible that the causality runs the other way: teachers are finding quality materials online, materials which also happen to be free. (The Khan Academy comes to mind.) But in the hands of those opposing any dilution of the traditional publishing industry, “free” and “online” are invoked with a dismissive air at best, or a pejorative connotation at worst.

Setting aside the prospects for alternative publishing models (for now), let us assume that Taylor’s, Degen’s and Menzies’ analyses are correct.  Let us assume that all the ills of the educational publishing sector are solely the fault of fair dealing. What then? Have any of them considered that years of expanding the scope of copyright has only meant that even more Canadian dollars flow out of the country than stay in? Since before Confederation, the market north of the 49^th parallel has been dominated by foreign copyright holders. First British, then American. Copyright is a blunt instrument; any discussion of remedy via copyright should not ignore the trade imbalance. Applying copyright with broad brushstrokes through blanket licensing means fewer Canadian dollars are left to focus exclusively on Canadian creators.

Copyright governs much more than educational publishing, but even if it was confined to educational publishing, an important question has been left unanswered: Do Canadian sources make up the majority of all materials in all subjects taught in primary, secondary and tertiary education in Canada? If the answer is Yes, please provide evidence. If the answer is No, it is astounding that in the name of Canada, taxpayers, students and families are being chivied to provide more of our hard-earned dollars to predominantly benefit non-Canadian entities.

The effort spent railing about fair dealing could be better spent seeking measures that will target support directly to Canadian creators. Given the renewed spirit of federal-municipal relations, why not lobby for dedicated funding for school boards to support creation of open-education resources (OER) specifically to fill the need for Canadian content? Canadian history, geography, and politics could be addressed by local writers and illustrators, in collaboration with teachers, librarians, and archivists. How about seeking some manner of matched funds, to encourage every municipality to sponsor a writer-in-residence? What about expanding the existing Public Lending Right program to address nonfiction educational materials? A little imagination could bring about surprising dividends.

A Made-In-Canada approach to education is not a new concept. Law professor Myra Tawfik describes early 19th century efforts in Lower Canada to secure appropriate learning materials for children:

Lower Canadian teachers began to write or compile their own teaching manuals and schoolbooks. Preferring these to British or American imports and wanting to print multiple copies for use in their schools, they quickly discovered that the cost of printing their manuscripts was well beyond their means. Consequently, they began to petition the House of Assembly asking that it either assume the cost of printing or grant a sum of money to defray the costs (p.81).

Notably, when the House of Assembly delivered the requested support, it came with conditions regarding price and distribution.

As Canada approaches its 150th birthday, with a nod to the spirit that prompted the Massey Commission, the creation of the Canada Arts Council, and the emphasis upon Canadian Studies’ programs, it is time to focus on Canadian creators in a meaningful way.

 

with due respect to PricewaterhouseCoopers

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 statutory explanation of 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 funding priorities. 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 7.1.1.1 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

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

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 2012, 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

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 20^th 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 …

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

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

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.