how Canadian education really hurts creators

Last week, this tweet made the rounds:

Discussing at the Frankfurt Book Fair how education copying policies hurting creators & publishers https://t.co/WQB3yzMoai #CreativeCanada

— Access Copyright (@AccessCopyright) October 13, 2017

The article referenced insists, yet again, that Canada’s 2012 copyright amendments are the reason for declining fortunes among Canadian publishers and creators.

Such a lopsided assessment of Canada and copyright is nothing new. While it is important that members of the education community continue to press Members of Parliament to engage in a comprehensive exploration of this matter, it is as important to turn our gaze inwards and redress the real failure of Canadian education with respect to nurturing creators and creative activity.

The creators I speak of are not those who belong to any union or collective society; most of these creators are still under-age.

Two weeks ago, a mother said to me, “My daughter is terrified of using anything off the Internet.” The daughter is of middle-school-age, and the source of that terror: dire edicts driven in at school. Thou shalt not steal from the internet for the purpose of schoolwork.

Judicial pronouncements notwithstanding, this is not an isolated misconception.

If generations of Canadian students are instilled with the view that education and creativity are contingent on permission from others; that every scrap of content (even when employed for something as innocuous as homework) must be paid for, Canada’s future looks bleak.

The irony of the current situation is that too many Canadian creators are deemed to have been ruined by virtue of our inclusion of “education” into fair dealing, while the fact is that too many Canadian educators are unaware of fair dealing to begin with. Fair dealing would certainly protect a student who wants to use a published picture, a video-clip, or a quotation of text, towards fulfilling an assignment, regardless of the provenance of that content.

Moreover, in addition to fair dealing, the Copyright Act offers many avenues by which a student’s copying in aid of learning finds legitimacy. But are educators aware of these measures?

For instance, are they aware of the importance of S29.21? Hailed by Ruth Okediji as a mark of integrity by Canada, that we as a nation support the type of copying that is the very foundation of creative effort, S29.21 is quite capable of also sheltering a school project. Northrop Frye’s immortal words bear repetition; poetry can only be made out of other poems…

Are Canadian educators aware of the very structure and language of the grant of copyright? S3.1 clearly indicates taking an insubstantial amount of work would not raise a question of infringement.

Continuing along the lines of first principles, do Canadian educators understand the existence of the public domain? That not every artifact (whether in print or digital) is protected by copyright. Facts and ideas are never protected material; copyright is only gained by creation of original expression. A grant of copyright will expire; from that time forward, anyone may use the creation for any purpose. And the exercise of a statutory exception renders protected-material, in that instant, as public domain.

Returning to the situation at hand, what about the long-sought-after Internet exception S30.04? Its language is clumsy, but given that Canadian education fought for this exception, to see it lying by the wayside is frustrating. Granted, the exception is framed in the language of “institution,” but it is only logical that a student attending an institution could rely on the same protection. Given the forceful language surrounding plagiarism in all educational institutions, it is safe to say that the attribution requirement will be met. (Further conditions limit the exception to some degree, but in the context of a student working on an assignment, those conditions will likely also be met.)

But, for simplicity, fair dealing is all that needs be said about an individual student engaged in learning. S.29 states: “Fair dealing for the purpose of research, private study, education, parody or satire, does not infringe copyright.” There are no fixed conditions; multiple Supreme Court decisions emphasize the contextual nature of fair dealing and provide guidance on determining fairness. The typical uses put forward by students (for a picture here, a quotation there) would easily stand up under such an analysis.

Children, teenagers and post-secondary students should not have to take on the task of learning all about copyright before they can comfortably do their homework. That responsibility falls squarely on Canadian educators. While it is undoubtedly easier to simply adopt a no-copying regime, it will not place Canada on any strong footing in a global economy where success is determined by a country’s capacity to think broadly, to be creative, and to develop knowledge-based industries.

Ideally, the word copyright would never need to be uttered to one under the age of 21. But as life is less than ideal, the best we can do for students is to reassure them that their constructive use of broad shoulders of the past to stand on, is not unlawful.

Students today are confronting a world not of their making, but are being handed the responsibility to fix it. To be able to rise to this demand, they need to engage fulsomely with the resources around them to further their creative aspirations, to cultivate their capacity to see something that others cannot, and to dream beyond the constraints of contemporary problems. This cannot happen if copyright angst is the manner in which students choose how to learn.

the golden age

Another Labour Day has arrived and a new school year is underway. It seems befitting to continue exploring the often tension-ridden relationship between creators of educational material and users thereof. As I described last week via Policy Options: “the story of an ongoing disaster for writers and publishers—supposedly due to errant Supreme Court justices and negligent government—has played out in the press, at international gatherings and in literary journals.” Attacks on the post-secondary sector have been increasingly brazen this year;* for those who are becoming fatigued by the degree and volume of misinformation, I would like to share two points of good news.

First, this is not new.

There is a long history behind today’s dispute. Since the inception of copyright as a component of statutory law, copyright holders have sought to make copyright as expansive as possible and lessen any obligations that serve public interest as a whole. The Statute of Anne (titled An Act for the Encouragement of Learning…) provided copyright under conditions; as I have written before: “the privilege of the original exclusive right of reproduction came with the requirement that for each book published, nine copies were to be given to various university libraries, printed on nothing less than the best paper.” That requirement was decried, reneged on, and eventually discarded but not before many decades of familiar rhetoric had been unleashed.

When it became vividly evident that the statutory condition of library deposit (some called it the educational deposit) was being ignored, a professor of law protested vehemently. In A Vindication of the Right of the Universities of Great Britain to a copy of every new publication Edward Christian wrote:

When I hear much pity and commiseration expressed for the rights of poor authors, I wish to respect the rights of poor students, a class of men from whom poor authors themselves must derive their origin, and without whose successful labours nothing valuable in literature is ever likely to have existence. … By every honourable author [the deposit] would be paid with alacrity, as a debt of justice and gratitude, for the benefit which he must or might have derived from these common foundations of science.

Christian was not unaware of the objections raised to the requirement of deposit; he continued:

… It is sometimes observed, that besides the loss of the copy…, the author or proprietor will suffer considerably by the diminution in the sale of the work, when the members of the University have an opportunity of perusing it gratuitously. But that seems to be a fallacious and sophistical argument; for if the University thinks it worth purchasing, then the sale of one copy does precisely the same mischief to the author’s interest as the donation of that copy.

Christian’s words bring to mind those who insist that a librarian practicing fair dealing on behalf of students is unacceptable, despite the fact that the law (see Copyright Act, 30.2(1)) has long since allowed such practice. Moreover, our Supreme Court has repeatedly emphasized that fair dealing is effectively transferable—in 2004, librarians were permitted to act on behalf of their patrons; in 2012, an ISP and teachers could stand in the fair dealing shoes of subscribers and students respectively.

In any event, the early 19^th century is an intriguing period of history. Ronan Deazley writes: “When one thinks of notable debates … in nineteenth century Britain one thinks of … the parliamentary wrangles surrounding the Copyright Amendment Act 1842,” but he brings readers’  attention to events related to a proposed 1808 amendment, titled:

Bill for the further encouragement of Learning in the United Kingdom of Great Britain and Ireland, by securing to the Libraries of the Universities, and other public libraries, copies of all newly-printed books, and books reprinted with additions, and by further securing the copies and copyright of printed Books to the authors of such books, or their assigns, for a time to be limited.

Copyright holders protested; in the decades that followed, the familiar trope of starving authors reappeared. With Romanticism in full bloom, William Wordsworth penned these lines:

… For ‘Books’!” Yes, heartless Ones, or be it proved
That ’tis a fault in Us to have lived and loved
Like others, with like temporal hopes to die
No public harm that Genius from her course
Be turned; and streams of truth dried up, even at their source!

After three hundred years, a change of dialogue would be much appreciated. Which leads me to my second point; such dialogue can exist.

In May of this year, I attended Congress 2017 at Ryerson University, taking the rare opportunity to explore my interest in all things related to books. During one session, a representative from Canadian Publishing made the remark that he did not see himself in the debate about copyright/fair dealing, or authors/readers. That the labour expended by homegrown Canadian presses remains unseen and unaccounted for. As we ran out of official time, he and his colleague stood with me in the hallway so that conversation could continue. To their credit, when I mentioned the millions of dollars that Canadian universities spend on content,** they were surprised, and wishful. If only a fraction of those funds came to them, their situation would be different.

Allied to the challenges of securing income for small presses is the challenge of securing writers. The next day I listened to a publishers’ panel and was struck by one remark in particular: they nurture young talent but when an author “finally writes something with the potential to make money,” that opportunity is given to a larger, weightier press. All publishers present agreed on one thing: that it was essential to sell beyond Canadian borders. The Canadian market is simply not large enough to sustain them. This is, and has always been, the problem.

As I have written before, today’s challenges are as old as Canada itself; 19th century Canadian publishers were shut out of, not only foreign markets, but their own market. Without government support, the publishing sector could not grow. And the support that Canada wished to give, was denied by the political influence of publishers and copyright holders from both the UK and the US.

It was not until the later 20^th century, amid the demise of Ryerson Press, that explicit government support emerged for Canadian publishers. (A delightful bonus from Congress 2017 was listening to Clive Powell’s presentation regarding the Ryerson Press archives). That support has continued, but, as noted last year by Kate Edwards (executive director of the Association of Canadian Publishers) in The World Needs More Canada, support had remained static for the prior fifteen years. Even so, in that same article, Dan Wells (publisher of Windsor-based Biblioasis) had this to say: “… this really is the golden age of independent publishing in Canada.”

Wells’ enthusiasm aside, it need not mean we are not to try to focus attention on our homegrown publishers and writers. But it is unwise to take that step via copyright and blanket licensing. Efforts to manufacture a market out of legitimate unauthorized uses of copyrighted materials can only backfire. As I pointed out last week, the dual rise of (i) licensing of content directly between publishers and institutions; and (ii) openly licensed educational resources, points to a future where less proprietary information moves unsanctioned through academic corridors. To the extent that Canadian educators rely on educational publishers, that field is dominated by foreign firms. Just as demands for a uniform stamp of copyright in the 19^th century did not serve Canadian publishers well, the call for uniformity through blanket licensing will again disproportionately benefit the competitors of our publishers.

For those who thrive on conflict, continuing to demonize educators and librarians as the enemy of writers and publishers is a desirable state of affairs. But as to whether this approach will benefit the writers and publishers in whose name the conflict is waged, is doubtful for the simple reason that copyright does not care about a Canadian writer, or a Canadian publisher. If we wish to target our own publishing sector and our own writers, we need to find another way.

For instance, provincial governments are taking active interest in developing open educational resources. Could not funds be set aside for grants to educational institutions (whether in the K-12 range or post-secondary) for partnerships with Canadian publishers, writers, artists, archivists, geographers, scientists, botanists and historians to develop Made-In-Canada content? Some educational institutions have their own facilities for printing; others are looking at the viability of establishing print-on-demand. A modest printing fee may well be more lucrative to local creators than the small margins available under a mass-market publishing model. Students and Canadian creators could all benefit.

There can be no easy solution to these problems, but conversation is more productive than acrimony. And so, to those two gentlemen, thank you.

 

Notes:

* The Walrus recently published this missive, “How Universities Manage to Avoid Paying Writers for Their Work,” by Patrick Warner. He writes: “… why should writers, among the lowest-paid skilled workers in Canada—whose average income is less than 50 percent of the median national wage—be asked to subsidize the education system by making early contributions to the public domain?” Warner makes no mention of the millions spent by post-secondary institutions on content; instead he devotes considerable energy to marking librarians as a source of copyright discontent and enablers of unauthorized use: “… librarians had complained for decades that copyright law prevented them from offering better services to their users: desktop delivery of documents and electronic reserves being two services technology could easily allow.” Left unsaid is the prevalence of licensing of library resources; librarians are often operating under campus wide-licenses from content providers, many of whom allow electronic access and distribution.

** For instance, in 2013, then-President Stephen Toope wrote of the $25 million paid by the University of British Columbia alone for content, including $14 million spent directly on books by faculty and students. Last year, the Canadian Association of Research Libraries indicated that their 31 member libraries had collectively spent $293 million for information resources in 2014-2015. If the expenditures of smaller institutions are included, the number will be even higher.

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.

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.

international publishers v. Indian photocopying

InfoJustice.org posted a brief note about a lawsuit underway in India; one which pits international publishers against a photocopy service at Delhi University. The complaint, filed in 2012 and now being heard in the courts, concerns the compilation and distribution of course packs. “This lawsuit sent shock waves across the academic community, leading more than 300 authors and academics including famed Nobel laureate Professor Amartya Sen to protest this copyright aggression in an open letter to publishers.”

In “Why students need the right to copy,” published by The Hindu, Shamnad Basheer writes: “What makes the lawsuit particularly egregious is the fact that publishers are effectively seeking an outright ban on all course packs, even those that extract and use no more than 10 per cent of the copyrighted book.” Basheer, a prominent intellectual property scholar, is keenly aware that such use would be considered legitimate in the United States and that Indian law offers even wider latitude for unauthorized uses of copyrighted works for educational needs:

… unlike the U.S., [Indian law] embodies a separate exception, under which it is perfectly legal to reproduce any copyrighted work during the course of educational instruction. These exceptions reflect a clear Parliamentary intention to exempt core aspects of education from the private sphere of copyright infringement. Eviscerating these exceptions at the behest of publishers will strike at the very heart of our constitutional guarantee of a fundamental right to education for all.

Noting that the publishers have dangled the offer of collective licensing to Indian educational institutions, Basheer is emphatic that this is a bad idea. He points to Canadian misfortune in this area; he indicates that the costs and administrative burdens inherent to licensing are unnecessary when a suitable educational exemption is available under the law.

Basheer also comments upon the paucity of material available for the Indian market:

That a majority of educational textbooks are priced above the affordability range of an average Indian student is well known. A recent empirical study done by me along with my students reveals that a vast majority of popular legal and social science titles have no corresponding Indian editions and need to be purchased at rates equivalent to or higher than in the West… (emphasis mine)

The Indian court is aware of the public interest implicated by this case and has permitted a students’ association to be party to the suit. The Association of Students for Equitable Access to Knowledge (ASEAK) expressed their concerns to Oxford University Press, Cambridge University Press and Taylor & Francis, and conveyed the open letter. The displeasure of 309 members from the international academic community, including the 33 authors whose works were allegedly infringed, is plain:

As authors and educators, we would like to place on record our distress at this act of the publishers, as we recognise the fact that in a country like India marked by sharp economic inequalities, it is often not possible for every student to obtain a personal copy of a book. …  In that situation the next best thing would have been for multiple copies of the book to be available in the library so that students are able to access these books without any difculty. But given the constraints that libraries in India work with, they may only have a single copy of a book and in many instances, none at all. The reason we make course packs is to ensure that students have access to the most relevant portions of the book without which we would be seriously compromising their education.

The argument made by publishers for strong copyright enforcement is based on presumed losses caused to them. Given the pricing strategy followed by publishers, we do not believe that students are the primary market for these books and hence it would be disingenuous to presume that every photocopied article or book would be a lost sale.

Moreover, the academic members question the claim that academic publishing will cease without publishers’ investments:

This claim hides the fact that most academics are able to write books because they are supported by public infrastructure and money by virtue of being employed by universities or research centers. Academic writers are paid salaries and make their living from the university system, which in India is still largely government subsidized. … [In effect] the profits of academic publishing houses are under-written by tax-payers’ money.

The students also submitted other letters of concern. Amartya Sen appealed to publishers’ consideration of the importance of education and pragmatically suggested this suit is not in their own long-term interests:

…. In fact, the introduction the students get through these course packs must tend to be favorable to the sale of books in the future when the existence and the quality of arguments presented in particular books become more familiar to the next generation of earning adults…

Perhaps the best argument for throwing out the case is from another plaintiff-without-consent, Raju Ramachandran.  He modestly describes himself as a lawyer (he is a senior advocate with the Supreme Court of India):

 I am of the clear view that photocopying of [my] essay for educational use would be ‘fair use’ and would also fall under the educational exception in our copyright law. I would also like to make my position as an author very clear that nothing can be more fulfilling for me than the fact that the student community would be reading and discussing my views. I would be deeply disappointed if students are not able to access and debate my views only because they are unable to buy the book in which my essay is printed.

The case will continue on May 8, 2013.

Parliament to reconvene on Monday

Members of Parliament are heading back to Ottawa and the Legislative Committee on Bill C-32 will resume discussion on February 1, 2011. The transcripts from their first eight meetings are posted here.

Reading through the transcripts is sobering; the depth of misunderstanding about fair dealing impedes meaningful cooperation. The distrust of education as fair dealing is rooted in a misconception of what fair dealing is and how to handle it. Fair dealing is not free dealing. A decision of fair dealing requires a contextual exploration and must be evaluated from multiple points of consideration. As noted in CCH Canadian (2004) by the Supreme Court of Canada and repeated ad nauseum ever since.

Although the High Court seemed to break new ground in 2004, the reality is that Canadians were given similar instructions a long time ago. 1943 to be exact, in Zamacois v. Douville. See here for details.

While rights holders may decry the inclusion of education as a category in fair dealing, it remains that educational institutions offer the best atmosphere for educating Canadians in the practice of fair dealing. Encouraging teachers, students, researchers and staff to better understand the flexibility of the exception invites a better framework for cooperation and better observance of copyright law.

More input invited for Bill C-32

The Legislative Committee on Bill C-32 is soliciting further input from Canadians. In a news release dated to December 6, 2010, Canadians are invited to submit up to 10 pages of thought (if your thinking runs in the 5-10 page range, please include a one page executive summary.) The committee requested that if change is proposed, draft language would be helpful.

I suspect many will offer up suitable language; instead, I take this opportunity to draw attention to the highly toxic atmosphere that emerged in the wake of Bill C-32. Far beyond the text of copyright law itself, what will cripple Canada’s creative prospects is the enmity that sits between copyright representative associations and educational institutions.

In my brief I emphasize some of the points I’ve raised in this blog: the securing of writers’ income from educational uses by the Federal Court of Appeal in July 2010, the campaign of misinformation concerning the inclusion of “education” to fair dealing, the direction taken by Israel in terms of fair use and best practices, and the wisdom of Northrop Frye.

If you wish to contribute to the proceedings, submissions must be made by January 31, 2011 and sent to: CC32@parl.gc.ca

Literature did not end in 1774

A friend sent me the latest Access Copyright e-newsletter for creator affiliates. With the heading of “Canadian creators making their voices heard,” the newsletter describes a recent advertisement published in the Globe and Mail and the Hill Times. The advertisement was supported by the Canadian Authors Association, The Writers Union of Canada, other literary associations, and specifically endorsed by many renowned Canadian writers. In their eyes Bill C-32 places Canada’s digital economy at risk by undermining the work of Canada’s creative community.

To lobby the Canadian government for copyright privileges is the right of any Canadian but to present Bill C-32 as compromising Canada’s creative future is absurd. Left unsaid is any reference to other forms of taxpayer-funded support that are provided to authors. The Canada Council has played a significant role in the development of Canadian literature. Grants from the Social Sciences and Humanities Research Council should also be recognized. And while dedicated arts funding from municipalities and provinces may have declined in recent years, those contributions should not be forgotten. It is disappointing to see Canada’s literary elite taking part in the misrepresentation of the implications of Bill C-32.

But did they have a choice? The lines drawn are ugly; Bill C-32 increasingly sits as an “us or them” proposition. Said another way, it is 1774 again.

This might be a good thing.

Book history and copyright enthusiasts alike will remember 1774 as the year of Donaldson v. Beckett. In that decision the House of Lords decisively ended the custom of perpetual copyright. Publishers fought strenuously to have the decision overturned, claiming that without perpetual copyright there would not be enough time to capture revenue from book sales. They foretold of the end of publishing and with it, the loss of literature.

In The Enlightenment and The Book (2006), Richard B. Sher writes:

[Bookseller-publishers] did what they could to recruit authors to their cause by scaring them with predictions of severe decreases to their copy money if the duration of copyright were restricted by statute; their efforts met with limited success. David Hume permitted his London publishers to use his name publicly, but in private he told one of them that he did not think the elimination of perpetual copyright would be likely to have “any such bad Consequences as you imagine.” (p.25).

Professor Sher’s past, and continuing, research offer compelling evidence that the literary publishing industry did not suffer dramatic change when copyright’s expanse was curtailed in 1774.

Including education as a permissible category of fair dealing will not bring havoc to Canadian writers. Michael Geist posted an FAQ on this matter – it ought to assuage the fears of Canada’s literary community. To suggest that inclusion of education to fair dealing is an unprecedented exception and will undermine Canada’s international obligations, as the advertisement did, is simply incorrect. A colleague dryly asked, “Have they not heard of a little place called the United States?” Codified into American law in 1976, Fair Use permits multiple copies of copyrighted material for classroom use, under the condition of a fairness test. Notably, it is the same fairness test advocated by the Supreme Court of Canada in March 2004, and most recently used by the Federal Court of Appeal in July 2010. The decision of July was favorable to writers and publishers when their works are used in educational settings.

So, disappointing as it was to see that list of names, I will focus instead on the pleasure their books have brought. Memorable was the night we listened to Margaret Atwood’s explanation of her first encounter with interest received from her bank – D. almost fell over from laughing. That gem is in Payback: Debt and the Shadow Side of Wealth (of Massey Lecture fame.) My introduction to Charlotte Gray came via her biography of the lives of Susanna Moody and Catherine Parr Trail. These pioneering writers laboured under far more difficult circumstances than anything Canadians endure today. Gray mentions the difficulty of surviving on writing; Parr Trail only received “110 pounds on copyright and no royalties on the sales (p.125)” for The Backwoods of Canada. Even though the book became required reading for those considering emigration to British North America and helped keep “Mr. Charles Knights’ shaky publishing house afloat (p.126).” And Yann Martel’s Man Booker award-winning Life of Pi, beginning as it does in India, spoke to my multiple-cultural-identity-disorder. Can anyone forget the encounter at the seaside among the priest, imam and pandit?

More of my favourites to come another day. And I have every expectation that there will be even more, as of yet unwritten. Literature is much more than copyright.

Second Reading – the day after

Bill C-32 had its second reading yesterday; Michael Geist gives the details. The campaign of misinformation concerning the inclusion of “education” to fair dealing is leaving its mark. This is disappointing, but not surprising given the deficit position fair dealing sat in before Bill C-32 was unveiled. Despite the viability of fair dealing as a measured response to the perennial calls for balance in copyright, and the lessons that can be drawn from the lengthy history of American experiences with fair use (see my chapter in From “Radical Extremism” to “Balanced Copyright”, free download available), the mere mention of education as fair dealing brings out the worst fears of Canadian writers.

Where fear may be understandable is if a change to the status quo introduced greater uncertainty. This is not the case with Bill C-32; the degree of uncertainty remains the same. That is probably not very comforting to some quarters. However, as I have noted earlier, a decision issued by the Federal Court of Appeal this past summer should reassure people that fair dealing is not a thinly disguised vehicle for theft. In that dispute concerning fair dealing and photocopying in the K-12 sector, the majority of photocopying conducted was held as subject to fees. Those in charge of copyright collectives could have alleviated the fears of their members by emphasizing this decision.

Interestingly so, that case proceeded upon the existing categories of fair dealing – confined as they are to private study, research, criticism, review and news reporting. Thus even without “education” the question of educational use as fair dealing can still arise. Which might induce the question: why bother then? If legitimate fair dealing occurs in educational institutions, then defend it under its existing language.

The challenge is that fair dealing is not actively used. And this is to the detriment of Canadian creators. Not merely for the access that fair dealing can support, but for the heightened awareness it imposes for responsible copying. When educational institutions favour stock-license agreements, there is little impetus for individual players to understand the issues at hand.

The merit of including education in fair dealing will ultimately be a better understanding of copyright throughout Canada. The necessary first step is to bring teachers closer to the discussion. That cannot happen when teachers are obliged to sit passively within the arcane strictures of institutional exceptions and the narrow repertoire available through copyright collectives. Whereas if teachers are given greater freedom in their choice of resources, presented with the Supreme Court CCH Canadian framework, and encouraged to probe the decision of fair or unfair, they become conduits of informed copyright decision making.

In the long term this benefits Canadians who aspire to be writers, musicians, artists and want to prosper in the world of the information commodity. Will it be easy? Probably not; achieving anything worthwhile is rarely easy. But encouraging Canadian teachers and students to understand the law – that copyright is a system of rights and duties – facilitates better observance of the law.

No doubt some people (including creators, teachers, students and administrators) will long for a neat-and-tidy, easy-to-follow rule. But creativity is not neat and tidy, and so deliberate thought upon every decision to copy is the duty that civil society demands of its citizens. Moreover, the duty of deliberate thought is not unique to copyright, and our Supreme Court continues to remind us of that.

Two weeks ago, our High Court spoke to the issue of confidentiality within investigative journalism in Globe and Mail v. Canada (Attorney General), 2010 SCC 41. The case is well worth reading; briefly, the judgment made clear that there can be no set rule defining when confidentiality reigns or can be broached. Decisions must proceed on a case-by-case basis. However, writing for the court, Justice LeBel laid out four questions to be addressed before a journalist is compelled to reveal his or her source. As the four questions have their roots in common law (the Wigmore factors), Justice LeBel took care to ensure that the framework is feasible to Canada’s bijural legal regime. The message was clear, that the framework should accommodate disputes as of yet unknown: “It is also sufficiently flexible to take into account the variety of interests that may arise in any particular case.”

The Supreme Court Justices recognize that the non-uniformity of life requires flexibility in law; one can only hope that the Federal Government does the same.