the free market…

Last week’s dual topics both deserve closer attention; deciding where to focus this week was a challenge. Then a few lines from one of my daughter’s favourite books came to me:

The free market must always be completely free.
The free market must be controlled in certain cases.
The free market must be free enough to control its freedom in certain cases.
The free market must have enough control to free itself in certain cases.

[p.170 of The Mysterious Benedict Society by Trenton Lee Stewart (New York: Little Brown & Company, 2007).]

Within last week’s decision concerning the K-12 tariff on photocopies of copyrighted material at Canadian schools, the Federal Court of Appeal (FCA) addressed the question: “was the dealing fair?” From paragraph 25:

The Board also examined the effect of the dealing on the work. It cited uncontradicted evidence that textbook sales have shrunk over 30 percent in 20 years. Though it admitted it could not define the exact reason for the decline in sales, it nevertheless concluded that photocopying had had an unfair effect (Decision at paragraph 112).

So, turning now to the earlier Copyright Board decision, paragraphs 110-111 give the fuller story:

The uncontradicted evidence from textbook publishers shows that textbook sales have shrunk by more than 30 per cent in 20 years. Several factors contributed to this decline, including the adoption of semester teaching, decrease in registrations, longer lifespan of textbooks, use of the Internet and other electronic tools, resource based learning and use of class sets. We are not able to determine precisely to what extent each factor contributed to this decline.

Despite being unable to determine precisely how these other factors contributed, the Copyright Board decided that there was sufficient impact to make the dealing unfair. (Keep in mind that this was one factor of analysis of the entire decision.)

While I understand that no precise determination can be made, I would like to know to what extent the factors were investigated at all? At the very least, school boards will track enrollment figures; lower enrollment could go a long way to explaining fewer text book purchases. One can only hope that teachers are using the Internet as they see appropriate to support a lesson. I’m not sure what “resource based learning” is but it still warrants explanation. And, judging by the dog-eared, broken-spined textbooks that D. lugs home periodically, I can attest to the “longer lifespan of textbooks”. Mercifully, good teachers can be effective without the glamour of new textbooks. It will be ironic if school boards choose to operate with thrift, only to be held financially accountable for affecting a market. Whatever happened to the market catering to its customers? (I forgot: the market must be controlled in certain cases…)

It’s probably heretical to say this, but could publishers allow that their books may not be useful? That school boards may no longer choose to waste taxpayer dollars on textbooks that claim to support a year’s worth of learning but don’t deliver? The Copyright Board considered the issue of substitution – and decided that in lieu of photocopying, school boards could have purchased the books instead (para.118). This assumes that the books actually meet schools’ needs. I have enough friends who are teachers that I can comfortably question this assumption

Here’s a counterfactual experiment set on the premise that photocopier technology does not exist. Consider this: the books are no longer useful to their intended market at the prices set by the publishers. School districts realize that their labour force include capable teachers whose time in the classroom makes them the best judge of what is helpful to students. Schools stop buying books and encourage teachers to use their own knowledge. And, handily enough, while the photocopier was never invented, digital technology and world-wide networks arrived on cue.

Okay, this is not entirely speculation. Ashlee Vance, of the New York Times, writes about the rise of open-source textbooks. A slow growing trend, but even “the traditional textbook publishers agree that the days of tweaking a few pages in a book just to sell a new edition are coming to an end.”

Twice the fun

Two events to report on this week … one domestic and one international (sort of).

The U.S. Librarian of Congress relaxed some of the prohibitions upon circumventing technological protection measures (TPMs) as found in the United States Digital Millennium Copyright Act (DMCA). Included was a measure that directly benefits educational uses of copyrighted materials. When done in good faith, for the purposes of criticism and review, college and university professors are permitted to extract clips from movies encrypted on DVDs. This expands a previous allowance which was offered only to film and media studies’ professors. (I presume this measure can be enjoyed by all teaching professionals at post-secondary institutions, including those of sessional ilk.) Also mentioned by name as eligible for the provision are film and media studies students. And the provision applies to creation of documentary films and noncommercial videos, again when conducted in good faith and for the purposes of criticism and review.

Other measures will assist consumers; you can read about them here. What I find interesting is the timing and the process. The United States continues to move away from the position of absolute deference to TPMs while Canada stands ready to embrace it. Bill C-32 does not permit the circumvention of TPMs for legitimate fair dealing uses. As far as the process goes, it was refreshing to discover that the Librarian is required to periodically review the activities constrained by TPMs with a very specific purpose:

As I have noted at the conclusion of past proceedings, it is important to understand the purposes of this rulemaking, as stated in the law, and the role I have in it. This is not a broad evaluation of the successes or failures of the DMCA. The purpose of the proceeding is to determine whether current technologies that control access to copyrighted works are diminishing the ability of individuals to use works in lawful, noninfringing ways.

The review process is open; all interested parties can submit written comments on the topic. This was the fourth such review.

Now to the home front.
The Federal Court of Appeal (FCA) released its decision concerning the charges on photocopied material used in schools from Kindergarten through to Grade 12. (Cited as 2010 FCA 198, and dated to 23 July 2010, the online text is not yet available.) My thanks to FC for providing me with a copy.

The FCA reminds Canadians that in decisions of fair dealing, the category of applicable use is merely the beginning. To make a complete assessment of fair dealing, the multi-facetted inquiry set by the Supreme Court in CCH Canadian must be followed. The FCA did exactly that, via existing fair dealing categories of private study, research, criticism and review, and ruled that the majority of photocopying taking place in schools will remain as subject to compensation. This decision is significant; it recognizes that educational activity is already represented through fair dealing and simultaneously reinforces the fact that a category by itself is insufficient to claim fair dealing. Hopefully this will quell the misconception that Bill C-32’s inclusion of education within fair dealing is “expropriation”.

Update: Here’s the CanLII link for 2010 FCA 198