fair dealing week 2019

Fair Dealing week begins tomorrow with seminars, workshops, and discussion spanning the country. It speaks well of the efforts of post-secondary communities to raise understanding of its importance. Many fair dealing stories will circulate this week; I have one of my own to add. Fair dealing is personal.

My parents emigrated from India to Canada in the 1960s. As to why they chose Canada, my mother later explained the decision as a process of elimination. Both had grown up through the country’s Independence struggle and lived the life of noncooperation, whatever hardship it may have entailed. So Britain never made the list. The United States was given some consideration; but, in my mother’s words: “We had all wept over Uncle Tom’s Cabin.” And so “No” to a society that was still struggling to provide civil rights to all its citizens. Canada? It seemed nice, inoffensive. Years later my mother gave me these memorable words: “I didn’t realize we had left one colonized nation, only to join another.”

That the undercurrent of being a colonized nation still seemed to permeate Canada in the twentieth century hints at how close to the surface that current was in the years immediately following Confederation. Canadian industry was particularly affected, including the publishing sector. I cover some of this history in “The Geopolitics of Nineteenth-Century Canadian Copyright, as seen by some British Authors, in the recently published Canada 150 Special Issue of the Papers of the Bibliographical Society. This paper complements an earlier work of mine, “The Copyright Act of 1889—A Declaration of Independence,” published by the Canadian Historical Review, which examined the same events, from documents compiled by the British Government. Taken together, it is a reminder that copyright policy cannot be enacted in a vacuum–the effect of change is conditioned by history.

Returning to the theme in hand, prior to leaving India, my mother was a Lecturer in Mathematics and a freelance writer of some repute. In Canada, while my brother and I were young, she stayed home with us but would occasionally return to writing. However, multiculturalism was not yet a gleam in anyone’s eye, and diversity in publishing nonexistent. The views of a visible minority woman, no matter how educated, no matter how capable with her pen, were of little interest to the editors of the day. (No amount of copyright could change this.) And without the approval of the gatekeepers, there was no means to reach an audience.

My mother’s assays in writing were infrequent as it was a period of coming to grips with total responsibility for housekeeping and child rearing amid the inescapable isolation of immigrants, not to speak of the deflation of rejections. But one rejection will always stand out in my mind, because the work was praised by the editor (from Macleans no less) but still declined as it had been forestalled in timeliness. The cause of the delay? A well-meaning intermediary had insisted that my mother’s quoting of one sentence from Subject India, by H.N. Brailsford, required copyright clearance.

Because of that inept advice, my mother had dutifully written to the book’s publisher, who had then contacted Brailsford’s widow, who sent back a charming letter saying how happy she was that her husband’s work was still being read. But this provision of consent took time to reach Canada; in the meantime, Macleans had already chosen their content.

Fair Dealing matters. Individual writers, musicians and artists should not need to be well-versed in the intricacies of copyright law, to benefit by exceptions to copyright defined in the law. It falls to teachers, administrators, and distributors to have the confidence of knowing that unauthorized use may be lawful.

Note: Subject India is now available through the Internet Archive.

course packs at home and abroad

As I caught up on my reading, I discovered that course packs continue to make headlines. The September 17^th issue of Outlook India featured “Copy This” by Gautam Bhatia; a few days later, The Varsity (University of Toronto’s student newspaper) published “After Access Copyright” by Iris Robin. Both articles speak to the continued need to probe the use of course packs with nuance.

Bhatia expertly takes readers through an ongoing dispute whereby in 2012 Oxford University Press, Cambridge University Press and Taylor & Francis, instigated a lawsuit against a copy shop operating at Delhi University. The alleged crime was copyright infringement in the production of course packs. (I had previously written about the suit here.) Further coverage from Spicy IP indicates that many of the excerpts reproduced fell within the quantitative measure of 10% (see here and here) that is considered fair use by American courts in the context of education. The guidance of 10% is also followed by many Canadian educational institutions.

Bhatia indicates that Indian educational institutions are being pressed to adopt blanket-licenses with respect to provision of course packs. Aware of the culture of licensing and market-superiority that was once the predominant atmosphere of copyright in North America, particularly in the United States, Bhatia writes:

Even in Canada, a country immensely richer than India, the problem has been noticed. Canadian universities initially agreed to a licensing arrangement that was pegged at a reasonable price. Once they opted in, however, the price steadily increased, until it became unsustainable.

Canadian courts have been far more sympathetic to the predicament of universities and students than their American counterparts. In two important cases, they eschewed the economic approach, identified [fair dealing] as a “user’s right”, and imposed the burden of proving direct financial damage upon the publishing houses. The publishing houses were unable to meet this challenge.

On reflection, that is hardly surprising. If students are not allowed to copy, it is not the case that they will spend ten times the money upon the original textbook. In most instances, they will simply be unable to do so. They will not buy the book at all. And if that is true in a country as rich as Canada, it is certainly true—in a much stronger sense—for one as poor as India.

Turning to The Varsity article; Robin writes that course pack fees have increased since the university moved away from its Access Copyright blanket license. On cue, representatives from writers’ organizations provided comments of the I-told-you-so variety. Whereas Lisa di Valentino considers the larger question of why and suggests: “More likely, this is an issue with communication, specifically between the library and the instructors.” Noting Robin’s coverage – that the University of Toronto  is engaging in outreach to acquaint teachers with a better understanding of copyright and case law, as well as the myriad of possibilities to reduce costs to students – di Valentino concludes with:

UofT (and other AC-less institutions) is going through a transition phase. Procedures and protocols are changing in ways that directly affect how instructors do their jobs. Copyright is not just for lawyers and librarians anymore. Copyright literacy is fast becoming a necessary element of faculty members’ toolkits.

As publishers, teachers, and students wrestle with the seeming problem of piracy (with its seeming solution of licensing), it is important to remember that copyright only applies to “substantial” reproductions of work. An insubstantial portion of a work does not qualify for protection (see Section 3.1 of Canada’s Copyright Act, or Section 14 of the Indian Copyright Act). We only need to rely on exceptions such as fair dealing when the amount reproduced exceeds the insubstantial, and is not already legitimate use by other means (i.e., library-subscriptions, open-access, publicly availablility, or Creative Commons).

Fair dealing should never be summarily reduced to a measure of quantity – fair dealing can amply support reproducing 100% of a work, depending on the circumstances. However, from an administrative perspective, using a guide of 10% is prudent; the amount is not only cautious but it may not even cross the threshold of substantial. As long as teachers are aware that 10% is not the ceiling, and that fuller scrutiny via the framework offered in CCH Canadian  facilitates a legitimate decision to copy, the flexibility possible within the system of copyright will be preserved.

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.