for Canadian writers, wise words from Aaron Sorkin to Charlotte Gray

Part 1 – Prologue

A summertime conversation with a Canadian writer haunts me. The topic of compensation for educational uses of literary compositions had come up; I politely offered to explain how such use is handled in postsecondary institutions and she equally politely thanked me for the offer. But it ended there. Later I wished I had said more, especially when The Writers’ Union of Canada (TWUC) posted a statement, “[Library Federation] Statement Contains Damaging Inaccuracies.” Among the Union’s remarks:

It is unfortunate that a national library federation would choose to disrespect and malign the closest partners of the library system in Canada.

In no way do current subscription, transactional, and access fees paid by libraries offset or excuse the massive amounts of unlicensed copying that happen every year elsewhere in Canadian education because of the misinterpretation that fair dealing permits such copying. Such use requires a license, and that license is currently not being paid.

Collective copyright licenses represent a bargain to students and their educational institutions, and are calculated from the testing of actual use beyond fair dealing. License payments are for copying, either physical or digital, and no one pays twice for the same use.

To respond by saying that the Union’s portrayal of current matters goes beyond inaccurate would likely be denounced as an unseemly attack on Canadian writers. Afterall, we are told that they are the glue holding this country together.

Through nineteen years of research, I have read volumes of Parliamentary transcripts wherein Members of Parliament fall all over themselves in the rush to declare their loyalty to Canadian creators. I remember one Minister of Canadian Heritage openly suggesting that a single stakeholder prepare the legislation for amending the Copyright Act. I remember a later Minister (of the same Department) denouncing as “extremists” those who saw merit in a balanced statute. I remember an entire committee of MPs taking the position that Canadian writers were as much a disadvantaged group as persons with disabilities. I remember that, instead of being regarded as allies of writers, libraries and educational institutions were more likely to be depicted as adversaries.[1]

Then I remembered Aaron Sorkin.

The dispute over fair dealing, as fostered by TWUC, Access Copyright, and the Department of Canadian Heritage, brings to mind a scene from The American President (1995). (Fictional) President Andrew Shepherd, speaking to the press, says: “Senator Rumson is not the least bit interested in your problems. He is only interested in two things: Making you afraid of something and telling you who’s to blame for it. Because that, ladies and gentlemen, is how you win elections.”

Fair Dealing is a legitimate exception to copyright but has been portrayed as an affront to the rights of writers. It has been shouted to the rooftops that postsecondary institutions, aided and abetted by libraries, misuse fair dealing to the detriment of struggling Canadian writers. The words of the Supreme Court have been twisted beyond recognition. All this to rally Canadian writers, and their supporters, to a cause.

The pity of it all is that the cause is not writers’ wellbeing. It never was.

What follows over the next week is a long letter for any Canadian writer willing to suspend judgement, examine the facts that brought us to this moment, and then draw their own conclusions.

Part Two, uncovering the problem, will be posted tomorrow.

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[1] The exception to this history was the conduct of the Standing Committee for Industry, Science, and Technology during the last comprehensive review of the Copyright Act (2017-2019). From the Chair’s Foreword of their report:

As Chair, my main concern was to make sure that the review would be informed by as many different perspectives as possible. Committee members were encouraged to ask all manner of questions to better understand the impact copyright law has on Canada’s modern economy and Canadian creators, even though such questions often led to difficult discussions. We did not presume what the outcome of this lengthy and complex undertaking would bring (xiii).

Their recommendations were left untouched by the Canadian government. However, that report is still worth reading in its entirety; not only for the purpose of learning about copyright in Canada, but also to witness the courtesy extended to all participants. As I wrote last year, it is the gold standard for what public consultation should be in Canada.

Image by Sima Ghaffarzadeh from Pixabay.

setting aside a library exception

When specific institutional exceptions entered into the Copyright Act in 1997, the ensuing challenge was to decode an array of conditions, spread over the distinctions between Educational Institutions, Libraries, Archives and Museums, the kinds of machines installed in these institutions, and such permutations and combinations thereof. The effort to determine where legitimate copying began or ended was not for the faint of heart.

Receiving Royal Assent in the Second Session of the 35th Parliament 1996-1997 (through a bill named C-32), the exception for libraries concerning interlibrary loan (ILL) was less than generous. It was restricted by genre to scientific, technical or scholarly works — fiction or poetry was strictly disallowed — with newspapers only eligible if more than a year old, and restricted by purpose to only research or private study. It also mandated that copies could not be in digital form.

The construction of the exception was intended to facilitate productive unauthorized uses of copyrighted material, but then was called upon to placate copyright owners who opposed exceptions of any kind. At the time, economist Michael Rushton observed that “[the exceptions] were heavily amended at committee stage, generally in favour of creators’ groups (p. 327).

Moving ahead to our current Act (as shaped by amendments assented to in 2012, ushered in by another Bill C-32 and finished by Bill C-11) the exception has seemingly improved. Digital copies are permitted, but under conditions. Paraphrasing from Section 30.2 (5.02), when a patron requests a resource via ILL, if that request is filled with a digital copy, the providing library must take “measures” to prevent the requestor from:

• making further copies (other than printing one paper copy for his/her needs),
• communicating the digital copy to anyone else,
• using the digital copy for more than five days following first access.

Taking “measures” allows for some elasticity in application, libraries are shielded to a degree from adopting onerous surveillance practices. But it should be evident that this style of exception is woefully inadequate to the reality of past and current information flows.

A routine need is the sharing of materials among a group. This can take form in a myriad of ways: students working on a group project, researchers or writers collaborating from near and far, professional societies responding to regulatory developments, or civil servants addressing media coverage, just to name a few. Yet under Section 30, each member of a group must submit a request for necessary material, which the supplying library will fill, many times over. And this presupposes that all sources of material are known in advance and that serendipity has no role to play.

While the caveat of Section 30 is inefficient and illogical, disregarding a section of any Act leaves a feeling of unease. Fortunately, libraries need not follow Section 30 piecemeal; instead, libraries are able to rely upon the entirety of fair dealing instead.

Section 29 is concise: “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.” There are no further restrictions upon the purpose, no restrictions upon genre and (as CCH Canadian taught us eleven years ago) no restrictions regarding commerciality (para. 51). Of course, the unwritten  rule since CCH Canadian is that the proposed copying must be evaluated for fairness, via a framework of context-appropriate factors.

Consider the following: A person submits an ILL request and further distributes the material to a group. If all involved in that group are each entitled to make that ILL request, it is difficult to see how a single request on behalf of a group of entitled individuals could be construed as unfair. If anything, that single request should be lauded as it eliminates duplication of effort for both lending and receiving libraries. The fairness analysis then shifts largely to due care when proceeding with the group distribution. Meaning, posting the material to a publicly available website would be frowned upon. Instead, a secure server comes to mind. A library might make that suggestion if it so wishes. Regardless though, CCH Canadian also made it plain that libraries are not responsible for the actions of their members (para. 45).

To those who might argue that libraries must rely on library exceptions, I leave the last words to Chief Justice Beverley McLachlin, again via CCH Canadian:

As an integral part of the scheme of copyright law, the Section 29 fair dealing exception is always available. Simply put, a library can always attempt to prove that its dealings with a copyrighted work are fair under s. 29 of the Copyright Act. It is only if a library were unable to make out the fair dealing exception under s. 29 that it would need to turn to s. 30.2 of the Copyright Act to prove that it qualified for the library exemption (para 49).

librarians and books in WWI

Books in the Trenches – drawn by Edgar Wright

The book is not a history, nor an official report of results accomplished; but, as far as I have been able to make it, a human-interest story of what books and reading have meant to the morale of the army and to the individual soldier and sailor in helping them to win the war and preparing them for their return to civil life (p. viii).

So wrote Theodore Wesley Koch (1871-1941), scholar and librarian (last featured here), in Books in the War – the Romance of Library War Service.

Posted to London in 1917 by the Librarian of Congress, Koch became aware of British efforts to supply their soldiers with books, “in camp, trench and hospital.” By the time Koch returned, the United States had entered the war and Koch was asked to assist in the promotion of Library War Service. His chronicle of the war years was published in 1919; sadly, only a few printed copies remain in circulation. But thanks to the provision of original books from Harvard University, University of California and University of Wisconsin, digital replicas are available for the benefit of all via Internet Archive and HathiTrust Digital Library.

The initiative to provide books to the fighting forces apparently brought out the best in people. The preliminary appeal for funding had been via private subscriptions – a one million dollar goal was quickly exceeded with nearly $2 million raised. Publishing houses joined the effort: “… discounts of from forty-five to fifty percent were not uncommon (p.10).” And some university presses and correspondence schools donated generously from their own inventories.

If there was any doubt of the value of books to soldiers, it was dispelled immediately following the launch of the libraries. Established at training bases, front line units, hospitals, convalescent homes and prisoner-of-war camps, and staffed by librarians (many of whom were volunteers), the libraries were much needed and much loved. Drawing upon original letters, reports and conversations, Koch meticulously described the impact made by the availability of reading material. His research was extensive. British sources included details of library programs for colonial troops and Koch gave the full extent of the reach of library books in World War I.

Outpourings of the soldiers’ gratitude fills many pages of Koch’s work; choosing a favorite thank-you is difficult. But one anecdote remains prominent for me:

‘Please send us some books. We ain’t got no books at all. We are regulars and get just as lonesome as national guards.’ This was the appeal sent by a private from a small camp to a public librarian in the East. Into the first of several shipments the thoughtful-librarian slipped a supply of candy and tobacco. The response was immediate. ‘If you ever done good to a man you done good to me,’ wrote the soldier, ‘but please don’t waste no more space for eats. Just send the books.’ (p.23).

The span of reading material provided to the men was vast. That fiction would be in high demand was expected, but many requests came in for vocational training material as soldiers endeavored to maintain the knowledge and skills necessary for their civilian trades. So too were requests for material that would aid a soldier’s realm of duty. Koch gave the details of a request from a private in the Engineers’ Corps of Camp Devon:

[He] asked for books which would explain the psychology of camouflage. He was something of an artist and had been successful with colour photography.  … Material was found for him and he succeeded in hiding guns so well with paint that he deceived his own captain (p.31).

But beyond technical matters, also desired were books of poetry, literature, biography, mathematics treatises, and, maps and histories of the regions where soldiers were posted. Newspapers and magazines were no less appreciated by men far removed in space and time from life back home. And, given the diversity of cultures among the soldiers, materials were needed in Arabic, French, Greek, Hebrew, Italian, Russian, Spanish and Yiddish, just to name a few of the languages spoken. It is no exaggeration to say that most soldiers emerged from World War I more well-read or better educated than when they entered.

The extent to which education was promoted through the libraries and librarians ranged from instruction for men whose background had not included any schooling, and hence were illiterate, to formal programs of study. A Canadian higher education venture came in for special mention from Koch:

An interesting educational experiment was carried on at Witley Camp, occupied by some of the Canadian forces in England. There the library hut of the Y.M.C.A. and the three adjacent huts were handed over by the authorities for educational purposes and became the pioneer college of the “Canadian Khaki University.” .. Credits were given for work properly done in English, French, the classics, mathematics, and agriculture. .. Examinations were held and certificates given, and men were helped to complete an interrupted academic course and to prepare themselves for satisfactory positions after the war (p.55).

Perhaps most thought-provoking among Koch’s accounts are those concerning the supply of books for prisoners-of-war. The value of books was commonly held on both sides of the Great War. Within camps, prisoners would organize themselves into teaching groups; professional and learned men of civilian days became teachers for their fellow prisoners. Koch wrote that “hundreds of schools were maintained in the prison-pens of the contending armies by the American Y.M.C.A;” the ensuing demand for thousands of volumes was met by the American Library Association. “What this meant to the prisoners in the camps cannot be overestimated; to all it meant hope and joy, to some perhaps even life and sanity (p.266).”

The Y.M.C.A’s operation reached far beyond Western Europe. A secretary writing from Siberia, indicated that the German and Austrian prisoners spent a great deal of time in study. The difficulty was that most of the books available were only in Russian. While prisoners who had a general knowledge of Russian could translate for others, eventually “thousands of German books arrived for the prisoners and so enabled many of the advanced students to continue studies interrupted by war (p.267).”

Allied forces were also recipients of bibliophile generosity. Among those stories, Koch includes the experiences of Canadian Lieutenant J.H. Douglas. His time as a prisoner of war began in a German hospital:

“Lieutenant Douglas exchanged lessons in English for instruction in French with a French captain in the hospital. They managed to have textbooks bought for them in the city and did serious work for two hours every day … [The] knowledge of French proved of great value to Lieutenant Douglas later when he was transferred to Switzerland, where he and some of his fellow prisoners were allowed to register at the University of Lausanne and took courses in engineering and French literature (p.273-274).”

World War I is not known to stand out on the historical stage for its humanity; but that some was found courtesy of librarians and books should not altogether surprise us. Koch’s work is exemplary and its digital existence, replete with all the original images, help with the quest: lest we forget.

ghosts of libraries past

Charles Dickens is with us at this time of year, his own ghostly visitation appearing via A Christmas Carol. But his spirit may have been addedly engaged last week when the news broke that scholars at Heinrich Heine University in Dusseldorf  had ranked the Vancouver Public Library (together with Montreal’s Bibliotheque) as the world’s best public library.

This evaluation of libraries came through focus upon “informational cities,” defined as “prototypical spaces of the knowledge society … where flows of information, capital, and power are as or more important than physical spaces (p.1).” Even more critical than the ranking, although as a Vancouverite I would not wish to renounce it entirely, the analysis makes plain that libraries form “an essential part of the city’s … knowledge and creative infrastructure… (p.313).” It is this sentiment that furthered the establishment of public libraries in England in the 19th century.

In 1850, the English House of Commons undertook an inquiry into the nature of their libraries with the conclusion that, in comparison to Europe, Britain was inferior in terms of libraries freely available to the public. As reported by the Spectator, 12 November 1853, this situation was “unworthy of the power, the liberality, and the literature of this country.”

From the inquiry came an act to enable Town Councils to establish public libraries and museums. The first such public library was the Manchester Free Library; it opened on 2 September 1852 with Charles Dickens among the speakers. As revealed by the Manchester Archives during the bicentennial celebrations of his birth, Dickens had accepted the invitation with alacrity. “… My engagements are very numerous but the occasion is too important and the example too noble to admit of hesitation.” Assigned the task of introducing the resolution, Dickens gave added thrust to the importance of public libraries:

“That as in this institution special provision has been made for the working classes, by means of a free lending library, this meeting cherishes the earnest hope that the books thus made available will provide a source of pleasure and improvement in the cottages, the garrets, and the cellars of the poorest of our people.” …  Ladies and gentleman, I have long been, in my sphere, a zealous advocate for the diffusion of knowledge among all class and conditions of men; because I do believe, with all the strength and might with which I am capable of believing anything, that the more a man knows, the more humbly, and with a more faithful spirit he comes back to the fountain of all knowledge, and takes to his heart the great sacred precept, “On earth peace, good will towards men.” Ladies and gentleman, I have great pleasure in moving the resolution which I have already read to you.*

The significance of the role played by public libraries was not lost on the colonies. Reporting on the opening ceremonies in Manchester, the Empire (Sydney) emphatically called upon its elite to step forward and give the City of Gold such an institution. Describing Manchester’s initiative:

They assembled to establish no Charity School, with a scrannel supply of innutritive knowledge for the workers, but a great and enduring institution filled with the light of genius from every age and every land, where the gifted sons of poverty may burst from their bonds … for the advancement of civilisation and the highest interests of the human race.

In Canada, Dr. Alphaeus Todd, Librarian of Parliament, in a plea to improve supply of reading material to residents, also pointed to English developments. Courtesy of Libraries Today, his report to the Royal Society of Canada (1882) is available here. Quoting from the first librarian of the Manchester Free Library, Todd wrote:

… Without exception, the working of all the free libraries so established and brought into active operation has proved eminently satisfactory to all classes of ratepayers.  It has largely promoted that industrial education which fits men for their specific callings in life, as well as that wider education that reaches farther and higher…. (p.16).

Closer to home, the British Columbia provincial legislature passed a Free Libraries Act in 1891. In Dave Obee’s The Library Book—A History of Service to British Columbia, former Lieutenant Governor Iona Campagnola writes that the history of library services in British Columbia:

… is a testament to individual determination intended to overcome all challenges associated with B.C.’s difficult geography, complicated history, sparse population and ever-shifting economy…. Through their own love of books, men and women worked hard to enrich the unique culture of this precious province of ours. They knew the value of the gift of learning, education and knowledge that was to be found in libraries, and they knew the simple joy of being able to borrow literary works of history, fiction, poetry, drama and criticism, to experience a “really good read!”

After the Manchester event, Dickens would write to a friend: “I wish you could have seen the opening of the Free Library… Such a noble effort, so wisely and modestly made; so wonderfully calculated to keep one part of that awful machine, a great working town, in harmony with the other.”

History must always remain incomplete, but last week’s news gives hope that libraries may yet endure as “wise and modest” institutions facilitating harmony as much as knowledge.

* Charles Dickens, “Opening of the Free Library, Manchester.” The Speeches of Charles Dickens, ed. K.J. Fielding (Oxford: Clarendon Press, 1960) p.151-154.  Note: The text varies slightly from the archived speech presented by the NY Times.

anniversaries

“Recognizing the importance of accessibility to the physical, social, economic and cultural environment, to health and education and to information and communication, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms.”

Convention on the Rights of Persons with Disabilities
United Nations General Assembly, adopted 13 December 2006.

An extraordinary General Assembly of WIPO is scheduled for 17-18 December 2012 in Geneva; delegates will consider whether or not to convene a diplomatic conference in 2013 to further examine the necessity of an international treaty to facilitate access to copyrighted material for visually impaired people. This follows the 25th session of WIPO’s Standing Committee on Copyright and Related Rights which took place last month. IP Watch described in detail the lack of progress during the November meetings, with non-governmental organizations (NGOs) unable to fully participate in the drafting of the proposed language:

 The drafting of the document is being done in informal sessions inaccessible to NGOs, which are left guessing what is happening in those sessions and become aware of the progress only when a new text is issued.

At the end of the November meetings, Chris Friend (Chair of the Right To Read campaign of the World Blind Union) drew attention to a key issue:

[The treaty needs] to clearly permit cross-border sharing of accessible books both between organisations and directly from organisations to blind or print disabled individuals. We reject complicated requirements for checks on whether the books are commercially available. Such procedures would sacrifice the usability of the treaty on the altar of publisher reassurance.

The irony is that very little material is commercially available. By the World Blind Union’s figures: “Only some 7% of published books are ever made accessible (in formats such as Braille, audio and large print) in the richest countries, and less than 1% in poorer ones.” The paucity of materials for the visually disabled has been acknowledged by Alan Adler (Vice-President of Legal and Government Affairs for the Association of American Publishers). During an interview conducted on 18 July 2012 by Jamie Love of Knowledge Ecology International, Adler said that accessible formats are  “a difficult thing to provide market solutions for … there is a need for some form of regulatory assistance in that area.” Where Adler is not comfortable with further regulatory assistance by way of limitations on copyright, is in the realm of library and educational provisions. When asked by Love whether the AAP had position on achieving a treaty or some other form of international agreement, Adler went so far as to say that it “would not have been as much of a problem if we were only working on the issue of print disabilities … .” But given the risk of setting precedent (with other causes already standing in line) the AAP has reservations.

So if, perhaps, maybe, the treaty for visually disabled people is disassociated from other arguments for granting more meaningful rights of public access, then a workable treaty can be reached? I would like to be optimistic but the discussion surrounding access to copyrighted materials for the disabled has been ongoing for thirty years. WIPO and UNESCO together proposed a Working Group for such access in 1981. The Group met for the first time from 25-27 October 1982; the report of which was released on 3 January 1983.

The principal concern voiced by the publishing sector today was as much in evidence in 1982: that a special provision would undermine the exclusive right of authors.  But the inability of the market to meet the needs of the disabled was also evident: “… that the number of handicapped persons in each country was relatively small and therefore the market for materials intended for them limited. This fact seemed to the experts to fully justify the exceptions which are explained in the following paragraphs.”

Regrettably, the demands of the publishing sector have only become more stringent as the decades went by. A treaty for rights of access for the visually disabled may be possible; although, the United States continues to oppose the strength of a treaty.  But even if the United States concedes as a gesture of international cooperation, the language of the treaty will be highly restrictive. Carolyn Rossini, writing for the Electronic Frontier Foundation, indicates that the November meetings did not yield consensus upon the more controversial aspects (circumventing digital locks and allowing for cross-border cooperation) but did manage to narrow the possible-treaty’s scope (the needs of the hearing disabled are not included and all audiovisual works are excluded from consideration). More telling is what has appeared in the draft text; specific reference is made to the three-step test. As I wrote a year ago, this language from the Berne Convention does not close the door on flexible exceptions to copyright (the American regime of fair use stands as a shining example) but the copyright holders invoke the test to incite doubt and fear.

Copyright holders are adamant that appropriate safeguards be enacted along with better access to copyrighted works; it is odd that they do not see libraries as a natural ally in this process. As Winston Tabb (Dean of Libraries and Museums at John Hopkins University, Chair of the International Federation of Library Associations and Institutions (IFLA) and recipient of the 2012 L. Ray Patterson Copyright in Support of Users Rights) stated to WIPO in reference to earlier draft text:

Visually impaired and print disabled people are deprived of the basic human right to read because this committee has not been able to agree.  The library community, which is the major provider of services assisting blind people to access information, believes that the proposed treaty that the World Blind Union and related organizations is seeking is right, fair, just, and long overdue.

Arguably, the library community is a major provider of services assisting all people and the international library community network is well-positioned to assist in fulfilling the due diligence of appropriate safeguards.

If we take the Convention on the Rights of Persons with Disabilities seriously, then the needs of the disabled are a subset of the needs of the public. The publishing sector would do better to enlist the aid of IFLA and its members, and work towards maintaining the legitimate role libraries play in the dissemination of copyrighted works. The matter of transformation and supply of works is only a means to the end, not an end unto itself. As was decreed 64 years ago, it is a fundamental right for all people to “freely participate in the cultural life of a community.” Libraries are sites where copyright and this fundamental right are reconciled.

“Everyone has a right freely to participate in the cultural life of the community, to enjoy the arts and to share in the scientific advancement and its benefits.”

Universal Declaration on Human Rights
United Nations General Assembly, adopted 10 December 1948

thank you Madame Abella

A week has passed since our Supreme Court issued five decisions concerning copyright in the analog and digital age. The commentary is fascinating; see Howard Knopf here, Bob Tarentino here, and ongoing, detailed coverage from Michael Geist here.  In his posting today, Geist emphasizes that the long-term prospects for Canada are very good: (i) The language of user rights is not merely a conceptual term; it is a robust principle which will affect all future examinations of copyright. (ii) The Copyright Act must be read as technologically neutral; developments in technology cannot be assumed as sufficient reason to extract added licensing fees from people. (iii) Fair dealing is positioned for continued growth via the Court’s support of the “large and liberal interpretation” first enunciated in CCH Canadian.

To which I would add one more note of satisfaction. In Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright),  the Supreme Court reminded Canadians that libraries were places where students and teachers may access and copy work germane to the pursuit of education. It borders on the absurd that we should need such a reminder but, as I wrote a year ago, AUCC’s copyright and fair dealing policies include an edict that material placed on reserve should not serve as a substitute for purchased copies. To which my question was, “What is the purpose then of library reserves, or indeed libraries in general?

The decision penned by Madame Abella debunks any idea that libraries should not serve as a source for required readings. In Education v. Access Copyright the material under consideration was quite specific: “… copies of works made at the teachers’ initiative with instructions to students that they read the material. Teachers would photocopy short excerpts from textbooks and distribute those copies to  students as a complement to the main textbook … (para. 7).” Clearly, if students are instructed to read the material, it could not be described as optional. To the suggestion that schools purchase individual copies of all copyrighted material for all students, Madame Abella was quite direct:

In my view, buying books for each student is not a realistic alternative to teachers copying short excerpts to supplement student textbooks.  First, the schools have already purchased originals that are kept in the class or library, from which the teachers make copies.  The teacher merely facilitates wider access to this limited number of texts by making copies available to all students who need them.  In addition, purchasing a greater number of original textbooks to distribute to students is unreasonable in light of the Board’s finding that teachers only photocopy short excerpts to complement existing textbooks.  Under the Board’s approach, schools would be required to buy sufficient copies for every student of every text, magazine and newspaper in Access Copyright’s repertoire that is relied on by a teacher.  This is a demonstrably unrealistic outcome.  Copying short excerpts, as a result, is reasonably necessary to achieve the ultimate purpose of the students’ research and private study (para. 32 – emphasis mine.)

Following the multi-facetted guidance set by CCH Canadian, Madame Abella deemed such copying as fair dealing. The entire decision is well worth reading; a legacy point is:

It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers.  They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying.  The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study.  Instruction and research/private study are, in the school context, tautological (para.23).

By requiring that the conduct of copier and end-recipient be examined together, this Court is ensuring that fair dealing be as malleable as possible to address situations as of yet unknown.

Again, it must be emphasized that the Court was examining the copying of excerpts of additional material used by teachers. Fair dealing is not license to copy entire textbooks for an ulterior motive of profitable mass distribution, and in no way can this decision be read as such. But it ought to be clear to AUCC, and the post-secondary community at large, that libraries should be allowed to function as per their central purpose — to facilitate widespread access to legitimately acquired material.

hanging out with librarians

Collective licensing is as deserving of a place in modern markets as any other business model, but our current situation is troubling.

Access Copyright describes its purpose as “to protect the value of intellectual property” owned by authors and publishers, “by ensuring fair compensation when their works are copied.” Value is an interesting concept – value can increase by market-demand. Value can also be artificially elevated by restricting the supply. What concerns me is that Access Copyright is able to control both axes.

And that leads to one plaguing question: How did we get into this mess? The situation now is almost surreal. How did a single organization manage to monopolize both their supply chain (the authors and publishers who produce the works) and an entire market (the educational community of English Canada)?* I decided to look for an answer to this question. Understanding how we arrived at this moment doesn’t make the situation better, but there’s comfort in knowledge.

These were my opening remarks from a panel discussion “Out of the Shadows” hosted by the BC Library Association on November 2, 2011. Fellow panelists were Paul Jones (CAUT) and Dan Burnett (Owen Bird Law Corporation). We addressed a variety of issues affecting the post-secondary community including Access Copyright licenses (or lack thereof), Bill C11 (previously Bill C32) and the political atmosphere.

The answer to my question lies in the pre-history of Access Copyright and the years that followed. Aiding my understanding were the works of Martin Friedland, Howard Knopf and Margaret Ann Wilkinson. Material was also drawn from the current annual reports of the Copyright Board of Canada and Access Copyright. My notes are available here.

It was a very enjoyable evening; my thanks to the BCLA for inviting me to participate.

* The province of Quebec operates with a different collective, Copibec, and relations there seem to be less contentious.

the $16 textbook

The first textbook I bought for my university studies was Calculus with Analytic Geometry, by Howard Campbell and Paul Dierker, or C&D as students dubbed it. It was an 800+ page tome priced at $48. At the time I thought this was outrageous; an unbelievable demand of cash from first-year mathematics students. Later, as I confronted slimmer, yet more expensive books, I developed an affection for C&D. Serving as it did for three consecutive courses, it became the most economical purchase of my undergraduate studies.

But not everyone bought their books.

There were many for whom it was simply not viable. Years later a friend told me that during her first winter in Canada, a stark choice presented itself: buy boots or buy a textbook. She opted for the boots and managed her coursework by going to the library frequently and reading a copy available from the reserves. She was by no means the only one to do so, but the limiting of borrowing time mandated by the library effectively ensured access for everyone in need.

As Michael Geist reported this week, the University of Calgary, Queen’s University and the University of Waterloo all signaled their intent to move away from collective bundled licensing of copyrighted material. Allied to this movement, post-secondary institutions are becoming more aware of fair dealing. However, as I wrote before, the leading institutional policy on fair dealing, by the Association of Universities and Colleges of Canada (AUCC),  sets a very narrow interpretation of fair dealing. Their apologetic tone could have the undesirable effect of establishing practices that undermine the discriminating power of fair dealing. Only time can tell; much will depend on how faculty members respond.

But an even more deleterious policy is finding voice through these measures — students cannot rely on library reserves for their required course reading. The AUCC fair dealing policy explicitly addresses what material can be borrowed. In Section III University Library Reserves, instructions are given toward the creation of paper or electronic copies of course material. It is AUCC’s directive that only optional reading material should be included in reserves; “no more than 25% of the required reading.” Of any material (required or optional) up to three copies can be deposited in reserves, allocated on the ratio of one copy per 30 students.

However, that instruction is followed by this canonical statement:

(16c) The use of library reserve must not substitute for the purchase of books, coursepacks, or other published materials.

What is the purpose then of library reserves, or indeed libraries in general?

This same language has made its way to Queen’s University; see Schedule B, Fair Dealing Copying Guidelines – Interlibrary Loan, Library Reserve and Document Delivery of Copyright At Queen’s Policy.

In many respects Queen’s copyright policies are laudable,  but that the university supports limiting reserves in this way is disappointing. Moreover, following AUCC in situating the restriction as allied to fair dealing is disturbing. Fair dealing may arise from a use of material, borrowed or otherwise; fair dealing is not the filter by which to limit access to the material.

If post-secondary institutions insist that course materials cannot be borrowed, that is their prerogative. But to represent that policy as related to fair dealing only further undermines fair dealing in the eyes of the very constituent body that can most significantly benefit from it: the post-secondary community.

75 blissful minutes

With the end of the year in sight, various activities were happening all at once in D.’s classroom. For those who were done, the option of reading quietly in the resource room was offered. “75 blissful minutes” as D. pronounced.

Through her intermediate years of elementary school D. was fortunate with teachers who encouraged reading and writing. I am thankful that has continued into high-school. If one does not read, one cannot write. A point reiterated by Heather Mallick, columnist for the The Star, in Why Canadian kids can’t read. Mallick highlights pronounced disinterest in reading by teens and twenty-somethings; a disinterest that fuels, and is fuelled by, the denigration of libraries in Canada. She writes:

How does a smart but untutored child become an autodidact, a self-teacher? You need good teachers who introduced you to books. And you need a book source.

That same theme was picked up by Ian Brown, of The Globe and Mail, in Don’t discard the librarians. He writes:

In the late 1990s, 80 per cent of Ontario’s elementary schools had a teacher-librarian; today, only 56 per cent do, despite the statistical fact that active libraries and librarians improve student performance.

Mallick and Brown set their remarks upon an Ontario schoolboard’s decision to shut down its school libraries. The move is designed to make up for shortages in funding and to abandon the nostalgia associated to libraries in favour of teaching 21st century learning skills.

As to what those learning skills are is unclear. People for Education (an Ontario-based group that advocates restoring funding to libraries) states:

Some suggest adding the 4C’s of communication, collaboration, critical thinking and creativity to the 3Rs; others focus more on technological skills. But the common core element of this new movement is a focus on developing students’ capacity to find, evaluate, organize and transform all the information now available in the staggeringly large, unfiltered and collaborative digital universe.

Students need guidance to navigate through that “staggeringly large universe.” If we believe the rhetoric of the information society and the knowledge economy, libraries are not a retreat of nostalgia but a critical element in preparing students for a future where they will be judged upon the quality of their knowledge and their skill in conveying information.

And what does this have to do with copyright? Nothing for now but everything for later. The knowledge economy is predicated upon a currently insidious realm of intellectual property, with copyright at the forefront of intrusion in daily individual life. People – whether they aspire to business, the fine arts, sciences or the humanities – will not be able to capitalize upon their talents. They will neither be able to legitimately utilize existing resources, nor be able to protect themselves from illegitimate claims. Yet as professional legal assistance is beyond the means of most (nor should it be necessary), individuals who wish to succeed will need education in these matters.

Libraries have traditionally served as sites of knowledge advancement. They are also implicated by copyright and now have to grapple with the subject in order to do what they do best — offer the public a haven for exploration, quiet contemplation and self-improvement. Libraries could play a key role in educating the public in terms of legitimate uses of copyrighted material. But first we must hang on to, and expand, our libraries.

Standing in the shoes of library patrons

Yesterday marked the seventh anniversary of the CCH Canadian decision. In this blog I have tended to focus on the fairness test that took form from the ruling and its implication for the importance of a multi-facetted inquiry into every act of copying. The anniversary date is a good time to remember that the case covered much more.

Tucked into my books is an old newspaper clipping titled “Photocopying not an automatic infringement of copyright laws.” In a space of 12 cm x 15 cm, reporter Janice Tibbetts succinctly captured and conveyed the main issues: (1) that copying in itself can be permissible within the mandate of copyright; (2) a library can provide copying services (subject to careful consideration) for its patrons; (3) the mere provision of equipment that could be used for copyright infringement is not authorization of infringement (emphasis added); and (4) a higher standard on the meaning of “originality” in terms of what qualifies for copyright protection.

The case offered much to Canadians. Fair dealing emerged as a robust principle instead of merely a defense against infringement. Institutions were provided instruction in how to shape their practices to be in accordance with the law. Yet a curious byproduct of the ruling seems to be more confusion over when and how to apply fair dealing. And forgotten is a tangential remark: Canadian libraries already had the right to stand in the shoes of their patrons for acts of fair dealing.

As some readers may recall the principle complaint in the case was the practice of the library of the Law Society of Upper Canada making copies of copyrighted material at the request of patrons. Key to the favourable outcome was the library’s clearly defined policy governing the requests for copies. Writing for the court, Chief Justice Beverly Mclachlin noted:

Here, the Law Society’s dealings with the publishers’ works through its custom photocopy service were research-based and fair. The access policy places appropriate limits on the type of copying that the Law Society will do. If a request does not appear to be for the purpose of research, criticism, review or private study, the copy will not be made. If a question arises as to whether the stated purpose is legitimate, the reference librarian will review the matter. The access policy limits the amount of work that will be copied, and the reference librarian reviews requests that exceed what might typically be considered reasonable and has the right to refuse to fulfill a request.

(The complete access policy is quoted in the ruling; see paragraph 61.)

The High Court took pains to stipulate that fair dealing embodies not only individual behaviour but a system:

This comports with the purpose of the fair dealing exception, which is to ensure that users are not unduly restricted in their ability to use and disseminate copyrighted works. Persons or institutions relying on the s. 29 fair dealing exception need only prove that their own dealings with copyrighted works were for the purpose of research or private study and were fair. They may do this either by showing that their own practices and policies were research-based and fair, or by showing that all individual dealings with the materials were in fact research-based and fair (emphasis added, para. 63).

Notably, while the library’s clientele included commercial law firms this was not a bar to the finding of fair dealing.

But the hidden gem in the ruling was the reminder that, with regard to fair dealing, libraries could act on behalf of their patrons:

In 1999, amendments to the Copyright Act came into force allowing libraries, archives and museums to qualify for exemptions against copyright infringement: S.C. 1997, c. 24. Under s. 30.2(1), a library or persons acting under its authority may do anything on behalf of any person that the person may do personally under the fair dealing exceptions to copyright infringement (para.83).

Section 30.2.(1) reads as: “It is not an infringement of copyright for a library, archive or museum or a person acting under its authority to do anything on behalf of any person that the person may do personally under section 29 or 29.1.”

Section 29 and 29.1 of the Copyright Act apply to research or private study, and, criticism and review, with the attendant conditions. Libraries et al. should take note of section 30.2(2); it is very specific to the purpose of research and private study; it allows reproduction of complete, single copies of articles taken from scholarly, scientific or technical periodicals. To qualify for Section 30.2 the library must be a nonprofit entity.

This exception was not relied upon in CCH Canadian: “The Law Society’s dealings with the publishers’ works were fair. Thus, the Law Society need not rely on the library exemption. However, were it necessary, it would be entitled to do so (para. 84).” But Section 30.2 should not be forgotten.