Meera Nair

Posts Tagged ‘Heritage Committee’

excerpts

In Posts on December 19, 2018 at 5:06 pm

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.


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.

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.