the fifth recommendation

Earlier this week, the Standing Committee on Industry, Science and Technology released the concluding report of the Copyright Review. In a world where political partisanship can often be described as toxic, the report is encouraging by its display of Members of Parliament of differing parties working together. While I have no doubt some political theatrics occurred behind the scenes, Members appear to have collectively taken on the challenge to probe a seemingly impenetrable area of law that touches Canadian lives on a daily basis, and reconcile  competing interests expressed by a multitude of voices.

The Official Opposition and the New Democratic Party each attached a dissenting report, as is their prerogative to do so.  Yet their combined discomfort was in relation to only two matters: (i) artists’ resale rights; and (ii) Crown copyright – that its repeal was preferable to the stated recommendation of open licensing for government-created content.

As noted by Creative Commons:

The Canadian report offers a glimmer of hope that copyright policy can be furthered in such a way to promote creativity and innovation, while at the same time protecting crucial user rights. This is contrasted with the final outcome of the European copyright directive, which reflects a disturbing path toward increasing control of the web to benefit only powerful rights holders at the expense of the rights of users and the public interest.

The report in its entirety is here, with encouraging language in its front-matter:

Reproduction of the proceedings of the House of Commons and its Committees, in whole or in part and in any medium, is hereby permitted provided that the reproduction is accurate and is not presented as official. This permission does not extend to reproduction, distribution or use for commercial purpose of financial gain. …

But before we delve into the report and reflect broadly on the thoughts and recommendations provided, one issue ought to take priority. In the letter guiding the Committee’s work, the presiding ministers invited Members to “pay special attention to the needs and interests of Canada’s Indigenous peoples as part of Canada’s cross-cutting efforts at reconciliation.” It is telling that, after dealing with matters of procedure and preparing the ground for future information-gathering and analysis, the first recommendation pertaining to current challenges is:

Recommendation 5
That the Government of Canada consult with Indigenous groups, experts, and other stakeholders on the protection of traditional arts and cultural expressions in the context of Reconciliation, and that this consultation address the following matters, among others:

• The recognition and effective protection of traditional arts and cultural expressions in Canadian law, within and beyond copyright legislation;

• The participation of Indigenous groups in the development of national and international intellectual property law;

• The development of institutional, regulatory, and technological means to protect traditional arts and cultural expressions, including but not limited to:

• Creating an Indigenous Art Registry;
• Establishing an organization dedicated to protecting and advocating for the interests of Indigenous creators;
• and Granting Indigenous peoples the authority to manage traditional arts and cultural expressions, notably through the insertion of a non-derogation clause in the Copyright Act.

In a submission offered by the Association of Canadian Publishers,  Sa’ke’j Henderson (Research Fellow Miyasiwewin Mikiwahp Native Law Centre of Canada College of Law, University of Saskatchewan) had written: “The purpose of the non-derogation clause is to clarify that these Aboriginal knowledges and cultural expressions are protected and promoted under Sections 52(1) and 35 of the Constitution Act, 1982 and Section 25 of the Charter.”

In his brief, Henderson had also reminded us that “Canada has endorsed the United Nations Declaration on the Rights of Indigenous Peoples (2007).”  Unfortunately, at best, Canada could be described as having a chequered past with respect to the UNDRIP.

Meaningful attention to Indigenous issues requires deliberate effort to harmonize all federal law with the UNDRIP. So it is disappointing to read that, this week, the Conservative members of the Senate used “procedural tactics to cancel committee meetings on Bill C-262.” This private member’s bill, brought forward by NDP MP Romeo Saganash, was passed by the House  of Commons in May 2018, and aims to ensure that federal laws comport with the UN Declaration of the Rights of Indigenous Peoples.

Returning to Recommendation Five, through my remarks to the Committee and brief, I said: “Indigenous paradigms about creative endeavor and property are implicit to the system of copyright as we practice it today,” and that finding commonality may help alleviate the challenges experienced by Indigenous communities with respect to appropriate protection and use of traditional knowledge and art.

While passage of C-262 looks less and less likely, we may hope that  Members of the Opposition will ensure that Recommendation Five is acted on.

excerpts

Last week marked the end of submissions to the committees of Industry and Heritage. It now falls to analysts to sift through data and testimony, and assist Members of Parliament as they consider the next steps for Canada and copyright.

The most disturbing aspect of this review to-date, has been observing the predominantly uncritical response to two fabrications: (1) that Canadian Literature is in peril; and (2) that a collective license via Access Copyright is the seeming solution to the seeming problem.

(Note: In a recent column, Kate Taylor conveys this happy news: “Canada’s literary culture is healthy: Writers keep writing and Canadian-owned publishers are publishing as many titles as ever, while independent bookstores are also stable.”)

Left under-articulated is the very real risk that Canada will remain on the sidelines in a world governed by knowledge economies. This is not merely about the unfairness of holding students captive to a market that is no longer relevant, it is about the regressive attitudes to creative activity that students are subjected to.

And so, I hastened to submit one more brief, this time to the Standing Committee on Canadian Heritage, before the deadline. What follows are some excerpts.

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I commend this department’s interest in supporting Canadian artists across the spectrum of creative endeavor. However, I ask that you expand your scope of inquiry to include not only the artists we have today, but those to come tomorrow. Given the tenor of dialogue so far, students are particularly vulnerable to assume costs that are irrelevant to their studies, and irreconcilable to their means. Moreover, our youth are not being afforded the fullest opportunity to further their creative instincts through measures already available under the law. Copyright chill and abuse are real.

I reminded the Committee of our past history with the system of copyright, that it was designed to the advantage of other nations. The stunning success of Canadian Literature, with both writers and publishers deserving praise, is due to efforts outside the arena of copyright. Nick Mount, Canada’s leading authority on the subject, has been unequivocal on this point. (See also his submission to the copyright review.)

I then sought to clarify the misconception that the decline in educational collective licensing was principally due to the 2012 amendments; that in fact,

The catalyst for the exodus from collective licensing occurred two years prior. In 2010, Access Copyright sought a 1300% fee increase. Granted, the earlier fee was out of date; an increase commensurate with inflation would not have attracted much attention. But given the extent of the increase, coupled with not only heightened requirements of reporting (which raised concerns of privacy) but also an effort to redefine the very nature of copyright (something only Parliament may do), many institutions began to give serious consideration to the viability of managing their operations internally.

Drawing from a talk I gave in 2011 (based on academic literature and the publicly released Friedland report), I emphasized that Access Copyright’s operation had been challenged from the very start. It sought to serve two masters (writers and publishers); but as publishers held most of the cards,

Access Copyright bolstered payments [to writers], regardless of whether works were used in educational institutions. Unfortunately, that set the stage for an unsustainable operation. Despite some evolution, it continues today. The payments provided by Access Copyright to its creator affiliates through its Payback system, rely on creation of work, rather than the use thereof. As Access Copyright’s creator affiliates grow in number, one should expect that fees will escalate just to keep pace with distribution payments.

Yet, today, many parties have called for compulsory collective licensing of educational copying.

This is particularly disturbing given the volume of evidence that detail the rise in direct licensing between educational institutions and third-party publishers, licenses that include both journals and books, and allow for both access and reproduction. Furthermore, Canadian institutions are increasing their selection of open educational resources as primary textbooks. Taken together, we see not only the present, but a future where Access Copyright’s services are relied on less and less, but would cost more and more.

Let there be no mistake: compulsory collective licensing would place an unnecessary and unfair burden on students. When too many students are financing their education through debt, it is more than cavalier to dismiss the cost as merely that of a case of beer. Governments and educational institutions have an ethical obligation not to impose waste on students’ meagre resources.

Further to students’ disadvantage are ongoing misunderstandings about legitimate, unauthorized use of protected material. Some of the instances of copyright chill and abuse that have been brought to my attention:

1. A parent informed me that her twelve-year-old had come home “scared to death,” all because of a strident lecture at school. A teacher had forbidden the students from engaging with content found via the Internet, a prohibition expounded in the name of copyright. 
2. A parent informed me that her daughter’s creative efforts, posted to YouTube, had been removed. This budding filmmaker said to her mother: “I didn’t know it was wrong.” To be clear, she did nothing wrong. YouTube’s overzealous content-identification system had resulted in the take-down of her lawful creation.
3. A group of worried students showed me a notice from a copyright-owner, threatening them with serious consequences if they had the temerity to quote from his father’s work, without first seeking his permission and making payment.
4. A parent sent me a Use of Technology agreement required at the local high-school. Parents were asked to give consent such that the school may search a student’s smartphone if the school “feels” that a rule has been broken. Among the rules listed: “honour copyright.” This may be due to the misplaced fear that schools could be liable for the activity of students; it speaks to the reality that administrations prefer to play it safe and discourage young people from lawful uses of copyright-protected materials.

Such misinformation spread among our nascent creators is not what will place Canada in positions of strength in decades to come:

If we train generations of Canadians into believing that creative effort, scientific inquiry, technological advancement, or a free press, are all predicated on a system of permission-then-payment, Canada’s creative future looks bleak.

This will be all the more painful when we consider that current technology and current modes of engagement offer promise to young creators today. They now enjoy what eluded Canadian creators in the nineteenth century: the capacity to promote themselves at minimal cost. Upcoming creators have the opportunity to find their own audience;^[1] a lack of publisher no longer limits awareness of Canadian talent.

Given that our Prime Minister has particular interest in fostering the next generations, it would be entirely appropriate for the Department of Canadian Heritage to give particular attention to how youth, students, and amateur creators, fare under the system of copyright, as it exists now and how it may change next year.

As Minister of Youth, it’s my job to make sure young people’s voices are counted when we make plans that shape this country’s future. Good meeting with CASA to hear directly from students on what matters to them – and how we can help better equip them for the jobs of the future. pic.twitter.com/ECV0ckYo3S

— Justin Trudeau (@JustinTrudeau) December 11, 2018

I closed with six recommendations. As the Heritage website has not yet been updated, my complete brief is here.

As I write this, my daughter is finishing her third year of engineering studies. The outcome of the copyright review is not likely to have any direct bearing on her remaining time as an undergraduate student, but there are many more like her to come.

 

[1] Canada’s Instagram poet Rupi Kaur comes to mind; her own self-promotion led to a publisher and then 77 weeks on the New York Times’ best-seller list; see Tariro Mzezewa, New York Times. Similarly, 2011 Canada Reads’ winner Terry Fallis began his successful journey via his own podcasts; see Shannon Rupp, The Tyee. Martin Kerr is a much-loved singer/songwriter/musician based in Edmonton; through his own talent and hard work, he has been independently producing music for ten years. Kerr began by singing in markets and festivals; today he sells out the Winspear Centre. One generation earlier that would have been an impossibility. With dreams of making it big, too many musicians were conscripted by record companies and emerged with only debt to show for it.

a guest post from Carys Craig

In connection to the current review of Canada’s Copyright Act, I was recently invited to appear before the Standing Committee on Industry, Science and Technology. Dr. Meera Nair also testified at the televised meeting, and her insightful comments are available here. My remarks to the Committee—which focused on technological neutrality, balance, user rights and the public domain—are posted below, with thanks to Meera.

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Thanks to the Committee. My name is Carys Craig. I’m a professor at Osgoode Hall Law School at York University, and I have been teaching and researching in the copyright field for almost 20 years. I’m a co-signatory of the Canadian IP Scholars Brief, about which you heard last week. The views I’ll express here are my own.

I’m going to begin by speaking to some guiding principles underlying Canada’s copyright system, which I hope might inform the Committee’s thinking about a variety of issues before it, and then I’ll highlight a few key proposals that I believe reflect these principles.

The Committee has heard from certain stakeholders that Canada’s copyright laws have fallen behind the pace of technological development, and that urgent reforms are needed in order to ‘catch up’. I would urge the Committee to be skeptical of such claims, and to resist pleas for technology-specific statutory amendments that will protect market incumbents while hampering the use and development of information technologies.

I have written about the principle of technological neutrality at length.[1] The best way to ‘future proof’ our law is not to regulate the technical minutiae in response to the pleas of industry lobbyists, but to seek to ensure the consistency of the legislation, in its purpose and effect, across time and technologies. This requires steady reliance on guiding principles, functional standards, and core concepts; not narrow, technical, and inaccessible rules that will require constant revisiting.

The task, then, is to keep the policy focus on copyright’s overarching purpose as technologies evolve, maintaining the balance between protection and the public domain that best supports the creation and dissemination of expressive works, and a vibrant cultural sphere.

Indeed, in the 2012 case of Entertainment Software v SOCAN, the Supreme Court of Canada agreed with my statement that technological neutrality requires that “the traditional balance between authors and users should be preserved in the digital environment.”[2]

As Justice Abella wrote in the earlier case of Robertson v Thompson, this means that, when confronting questions about copyright and the internet,  “the public benefits of this digital universe should be kept prominently in view.”[3]

If copyright law is a lever to encourage learning and creative exchange, the Internet and digital technologies have advanced this goal enormously. Unduly curtailing their use in the name of protecting authors typically flies in the face of copyright’s rationale.

This hints at the absurdity of much of today’s copyright rhetoric. Consider how strange it is — how facially false it should be — to portray, as the self-interested antagonists of Canadian authors, our public educational institutions, students and the scholarly and research community, librarians, archivists and academics (all the while casting a handful of commercial publishers, collectives, and content industry representatives as the natural allies of Canadian authors and the arts.)

This is the same tired narrative that powerful interests have employed to justify ever-stronger copyright protection for centuries. It’s time to see past it and imagine a better functioning system of incentives and rewards, offering more public benefits and imposing fewer social costs.

The reality is that copyright does a disservice to today’s creators not because of its limits and exceptions, but because of the restrictions that it places on creativity and sharing, the monopolistic interests that it helps to preserve, and its failure to actually attend to the real needs of the artists it is said to serve.

Today, more than ever before, the line between creators and users, between authors and the public, is more rhetorical than it is real. Today’s users are authors and authors are users, authors are students and educators, they are consumers and curators.

The task for lawmakers is not to ‘reprioritize authors’, as some have said, but to recognize the changing nature of authorship and the shifting realities of the information economy.

And so this big picture brings me to my more concrete proposals:

First, this should mean resisting calls to further strengthen owners’ rights and remedies. If the objective is to assist authors, copyright is a blunt tool indeed — and with stronger copyright there is, inevitably, collateral damage to the public domain, to free expression, public education and the functioning of the internet.

Secondly, this must mean recognizing and safeguarding copyright limits and exceptions, and respecting user rights, consistent with the internationally acclaimed jurisprudence of our Supreme Court and the constitutional right of free expression.

This takes a variety of forms.

It supports the move to an open, flexible and general fair use defence that is not limited to particular purposes but capable of evolving to embrace new uses that are consistent with the objectives of the Copyright Act (for example, by adding “such as” to the fair dealing provisions and codifying the Supreme Court’s fairness factors).[4]

It supports shielding fair uses from the chilling effects of potential moral rights liability by clarifying that fair dealing and other exceptions are also defences to moral rights claims.

It means ensuring that neither digital locks[5] nor boilerplate contracts[6] are permitted to override user rights by foreclosing otherwise lawful uses.

It also means protecting and preserving the public domain (in the same sense that one might protect a nature preserve from private appropriation).[7]

This must include finding ways to minimize the harmful impacts of any term extension (for example, by imposing additional formalities or costs on those who would claim protection beyond Berne’s ‘life plus fifty years’).

It also includes finding ways to support the creation of accessible intellectual or knowledge commons (for example, by providing a right of retention for authors to deposit publicly funded research in accessible online repositories,[8] and by opening up government works to the public domain.)

As a final thought, I would note that this government prides itself on its feminist agenda, and should consider what that means in the copyright context.[9] Good copyright policy is concerned not only with providing economic incentives but also with advancing equality; and equality requires access to affordable education, access to knowledge, and supports an ethics of sharing and collaboration.

Leadership in this field cannot mean simply reinforcing 20^th century models of private profit and control; it must mean preparing the copyright system to embrace the potential of the 21^st century while reflecting Canadian values.

With that, I thank you for your attention, and look forward to your questions.

 

[1] E.g., Carys J. Craig, “Technological Neutrality: Recalibrating Copyright in the Information Age” 17.2 Theoretical Inquiries in Law. 601 (2016); Carys J. Craig, “Technological Neutrality: (Pre)Serving the Purposes of Copyright Law” in Geist (ed), The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (2014).

[2] Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada 2012 SCC 34, at para. 8.

[3] Robertson v. Thomson Corp. 2006 SCC 43 at para. 79.

[4] I wrote in support of adopting fair use in Canada in, e.g., Carys J. Craig, “The Changing Face of Fair Dealing in Canadian Copyright Law: A Proposal for Legislative Reform” in Geist (ed.), In the Public Interest: The Future of Canadian Copyright Law (2005).

[5] Footnote 64 of the USMCA’s Article  20.67(1) potentially gives Canada a small window of time to improve its anti-circumvention provisions in this way. We should take this opportunity to ensure that appropriate limits and exceptions are grandfathered from the Treaty’s highly restrictive TPM provisions. I argued against such anti-circumvention measures, and in favour of digital lock exceptions and user protections, in Carys J. Craig, Digital Locks and the Fate of Fair Dealing in Canada: In Pursuit of ‘Prescriptive Parallelism,  13 Journal of World Intellectual Property 503 (2010).)

[6] The UK’s Copyright, Designs and Patents Act, s.30A(2) offers an example that Canada should follow of the statutory protection of fair dealing against contractual override.

[7] I wrote about how to best conceptualize the public domain and its protection in, e.g., Carys J. Craig, “The Canadian Public Domain: What, Where, and to What End?” 7 Canadian Journal of Law and Technology 221 (2010).

[8]  Belgian copyright law offers one example of such a provision (though I would recommend shortening any permitted embargo period).

[9]  I wrote about this in my blog post for Education International: ‘Ready for Real Change? Copyright, Education and the Quest for Equality’ (25-04-18). See also Craig, Turcotte and Coombe, “What is Feminist About Open Access?: A Relational Approach to Copyright in the Academy”  1.1 Feminists@law 1 (2011).

my remarks to the Industry Committee

Last Wednesday I had the pleasure of appearing before the Standing Committee on Industry, Science and Technology, to speak on the subject of the copyright review.  Also participating were Carys Craig (Associate Professor of Law at Osgoode Hall Law School) and Patti-Anne Tarlton (Chief Operating Officer of Ticketmaster, Canada).

Due to internal delays, the meeting was quite late in starting. Unfortunately, Carys and I had flights to catch that evening and so were unable to fully participate in discussion with Members of Parliament.

My remarks drew from the brief I submitted some months ago. In my allotted time I endeavored to place emphasis on the importance of supporting our next generations as they hone their capacity for creative and innovative thought—a capacity that Canada needs. I also reminded the Committee that altering copyright law must be placed in the context of Canada’s particular copyright history–a history where our law was designed to support foreign corporations.

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Good afternoon. My name is Meera Nair, I am the copyright officer for the Northern Alberta Institute of Technology, but I am here in my capacity as an individual. For nearly fifteen years, my research interest has been with systems of copyright, both contemporary and historical.

One of the challenges in dealing with copyright is that people tend to forget that it was designed to regulate industries. Because of an accident of vocabulary, it now includes individuals. People also forget the baggage we have carried for 150 years; that our system was largely designed by other countries, to serve their advantage. To the extent that we have successful writers, musicians, artists and publishers, those gains came despite the system, not because of it.[1]

So, what are we talking about? The system of copyright is composed of two parts; there are rights of control and there are rights of use. Why do we have it? For a very long time, we had no purpose. Copyright was simply one of 29 responsibilities handed to the Federal Government in 1867, with no explanation attached. But if we look at our multicultural roots—the influence of both civil law and common law—we see a shared goal: to protect the process of creativity.[2] While our Supreme Court has operationalized this as seeking a balance between creators and users,[3] it might be helpful to take one step back and simply think about this process; how do we enhance it? How do you assist individuals to maximize their creative potential? And from that, there is reasonable historical data to believe that larger social wellbeing will follow.

I am drawing from the work of B. Zorina Khan, an economist who explored American intellectual property policies at the time of their nation building years. The U.S. deviated from the IP norms of the day, and instead focused on educating its people and creating a framework which encouraged everyone to enter the arena of creativity.[4]

A part of that framework was the theft of other nations’ work—to be clear, I am not recommending that. But we could adopt the best aspect of current American policy: their structure of fair use. It would give leeway for new ideas to take form. It bears remembering that the United States has capitalized on this, with repeated development of billion-dollar industries.[5]

A speaker from an earlier meeting alluded to challenges faced by Americans with respect to fair use; he quoted Lawrence Lessig as saying: “Fair Use was simply the right to hire a lawyer.” Just to put that in context; Lessig wrote those words after losing a pivotal Supreme Court case in the United States. He had led a constitutional challenge, arguing that Congress had overstepped its bounds by lengthening copyright term. The loss was hard to take; while fair use is meaningful, it is no substitute for shorter copyright terms.

Adding to Lessig’s distress was likely the reality that the United States had made a bit of mess of fair use in later 20th century. They are correcting that misstep; but at the time, their courts began treating fair use as simply a response to market failure.

Fortunately, the Canadian judiciary has already ensured that Canada can avoid such a self-defeating approach.[6] Creativity is a cumulative affair; whether we are talking about books, music, software, medicines or a free press, creativity relies on exposure to and use of prior work. Some uses must remain above the cycle of permission and payment, if creativity is to be sustainable.

In 2012 we came up short on fair use.[7] But one pleasant addition stood out: Section 29.21 (known as the YouTube/MashUp exception). I would have called it the Creativity exception. It gives future Canadian creators some reassurance that their government does not wish them to be prosecuted for doing what Canada needs them to do–which is to hone their creative skills.

We need our next generations to be at their best to address the intractable problems that are being left for them to solve. Drawing from the combined wisdom of Julie Cohen and the late Oliver Sachs, it is important for individuals to play with whatever content they are interested in, to cultivate a capacity to see something that others cannot, to build the curiosity and determination that we hope will carry them into ground-breaking intellectual effort across all disciplines.[8] Much is being made of our innovation agenda—we will not get innovation just for the asking, we need to nurture it.

Regardless of whether we have strictly enumerated exceptions, or a more flexible condition of fair use, we cannot gain the fullest potential on either unless we adjust the current language of digital locks.

This Committee has been asked repeatedly to do more to support Canadian writers and Canadian publishers; this is a worthy goal. But I hope proposed solutions will not include billing students for materials already paid for, or worse, billing students for works that are not prescribed at all.

Moreover, if we want to target Canadian operations, copyright is not an effective means. More money will leave the country than will stay in. As I wrote in my brief: “Copyright is a blunt instrument; it cannot distinguish between literary superstars and novice writers, between fostering a homegrown operation and serving an international conglomerate, or, between writing for an audience and writing for financial gain.”

As I mentioned at the start, our Act draws from both our common-law and civil-law ancestry. The Copyright Act has long been recognized as being bi-jural; we cannot help but see two of our Founding Nations in it. However, the third is present. Indigenous paradigms about creative endeavor and property are implicit to the system of copyright as we practice it today.[9]

Acknowledging this will not solve the difficulties encountered by Indigenous communities with respect to protecting their intellectual property. But given the objectives of the Truth and Reconciliation Commission, we ought to recognize that the Copyright Act is tri-jural.

I would like to close by acknowledging that we have gathered on the lands of the Algonquin people.

I look forward to your questions. Thank you.

 

[1] Meera Nair, “History begins with geology (a response to Margaret Atwood),” Fair Duty, 20 September 2016.

[2] “Where social utility meets with natural rights is in the belief that creativity itself is valued. Otherwise, the underlying purpose of copyright in either tradition becomes meaningless, raising the question of why have such laws at all? Therefore, natural rights must apply to everyone, including past, present, and future creators. Likewise, consideration of societal benefit must ensure that future creative processes are not stifled by the system purporting to encourage creative effort;” Meera Nair, “Copyright and Ethics—an Innisian Exploration,” (2009) Global Media Journal (Can. Ed.) Vol. 2, Iss. 1, (23-39) 30, .

[3] “…a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator …;” Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34 at para 30.

[4] Those policies fostered American ascendency from, “an undistinguished developing country with an agricultural economy to world leader in less than one century;” B. Zorina Khan. The Democratization of Invention: Patents and Copyright in American Economic Development, 1790-1920. (Cambridge: Cambridge University Press, 2005) 5.

[5] Meera Nair, “Outdated copyright law hinders innovation and growth,” Edmonton Journal, 12 September 2018. Details here.

[6] Fortunately, Canada has already taken steps to avoid falling down this rabbit hole; “The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copyright. If a copyright owner were allowed to license people to use its work and then point to a person’s decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owner’s monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act’s balance between owner’s rights and user’s interests;” CCH Canadian v. Law Society of Upper Canada, 2004 SCC 13 [CCH] at para 70.

[7] Numerous organizations sought to discredit fair use; “… to each objection raised, a nuanced explanation or rebuttal exists;” see Meera Nair, “Fair Dealing at a Crossroads,” From Radical Extremism to Balanced Copyright—Canadian Copyright and the Digital Agenda, ed. Michael Geist (Toronto: Irwin Law, 2010): 90-120 (103).

[8] “Both copyright law and policy have shown little interest in understanding the processes by which these roles are performed, nor in inquiring what users need to perform their roles in a way that optimizes the performance of the copyright system as a whole (348).” See Julie Cohen,“The Place of the User in Copyright Law,” Fordham Law Review, Vol. 74, (347-374) 348, 2005. “Imitation and mastery of form or skills must come before major creativity;” see Oliver Sacks, “The Creative Self” in The River of Consciousness (2017) 137.

[9] Meera Nair, “Indigenous paradigms,” Fair Duty, 25 June 2018.

assumptions

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

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

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

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

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

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

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

— Aran Armutlu (@AranTheArmenian) October 11, 2018

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

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

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

— SPARC (@SPARC_NA) October 12, 2018

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

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

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

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

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

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

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