two histories

Last week, the two co-existing histories of Canada’s system of copyright, however contradictory, were on full display. A twitter discussion that began with moral rights, culminated with Carys Craig, Heather Martin, Bob Tarantino, and I, emphasizing how challenging it is to engage in creative endeavor which incorporates a prior work (even in the realm of parody). Bryan Frye was duly sympathetic:

OMG I had no idea Canadian fair use law was this terrible. https://t.co/P0RxNX7grh

— Brian L. Frye (@brianlfrye) May 14, 2020

But then on Friday, under the aegis of the Program in Information Justice and Intellectual Property, a Canada-U.S. panel discussed at length how an Open Educational Resource (OER) created in one country, could be relied on as legitimate in the other country. (Said another way, OERs, like essential goods and services, can cross the Canada/U.S. border.) Carys, Lucie Guibault, and Ariel Katz deftly illustrated the strength of fair dealing in the realms of research, private study, and education. This despite the recent FCA decision relating to York University’s application of fair dealing in 2011.

One aspect that went unremarked was that Canadian development of fair dealing differs from that of American fair use. While both rely on a fairness analysis, Canada has managed to avoid some challenges experienced by the United States. Two critical aspects have been held at bay:

1. An undue regard for licensing.

“The availability of a license is not relevant to deciding whether a dealing has been fair (CCH v. LSUC, 2004, para. 70).” Sixteen years may have left Canadians complacent with those words crafted by former Chief Justice Beverley Mclachlin, words which were supported with unanimity by the Supreme Court. That said, complacency should not eliminate appreciation for our Court’s foresight.

No explanation, no citation, was ever given for that piece of wisdom. But it is hard to believe that McLachlin and her clerks were unaware that fair use had fallen off the rails in the later twentieth century in the United States. Fair use was frequently portrayed as only a response to market failure, notably in circumstances pertaining to research and education. The prevailing view was that if a work could have been licensed, it should have been licensed, and therefore unauthorized use could not be fair use. Such circularity in arguments left fair use almost inert, leading to Lawrence Lessig’s dispirited remark that fair use simply enabled one to hire a lawyer.

(The late Lyman Ray Patterson wrote extensively about this period of American history wrought as it was through Princeton University Press v. Michigan Document Services Inc. (1994) and American Geophysical Union v. Texaco Inc. (1996). I provide some details here, and my thoughts on efforts by the Second Circuit to rehabilitate fair use are here.)

Under McLachlin’s watch, Canada was spared that growing pain of fair use.

2. Dependence on Transformation

Elevating fair use out of the pit it had fallen into required years of work. A good portion of heavy lifting was carried by U.S. Judge Pierre Laval. In 1990, he proposed the element of “transformative” as a governing principle to distinguish fair use from infringement:

The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. … Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses.

But Canada is not dependent on invocation of “transformative.” It has not entered our vocabulary, nor should it.

Two of the three Canadian Supreme Court cases where fair dealing prevailed (in research and education) were instances where professionally published works were used for the same purposes, the same settings, for which the works were created. Academic/research works were copied for research needs, and, copies of educational content were provided to students as part of classroom learning.

Against this history, it is not only unnecessary but also ill-advised to invoke “transformative” in Canada. To academic administrators anxious to keep their institutions safe, or, in the hands of professional Canadian lobbyists, the plain-English connotation of “transformation” leads to an expectation that a new work must be created. Which then becomes an argument to discourage unauthorized uses, however fair they might be, by students and researchers. 

During Friday’s discussion, the Canadian panelists reminded us that our Supreme Court stated that legitimacy of fair dealing does not require further creativity (SOCAN v. Bell (2012) para 21.)  In fact, the Court expressly rebutted SOCAN’s efforts to bring the word “transformative” into discussion (paras 23-24).

PIJIP posted the video to their YouTube channel. The discussion at the end offers detailed explanation with respect to incorporating various types and portions of protected works into OERs.

Canada’s development of exceptions towards building the infrastructure of a knowledge-based economy – education and research – is robust. But it remains under-developed when it comes to actually protecting creative activity. While, as Bob notes, the recent Wiseau decision “confirms that documentary films qualify as criticism, review and news reporting under the Copyright Act’s allowable fair dealing purposes,” other forms of creativity are still without shelter under the Copyright Act. Because, as I have written earlier, sometimes art is just art.

Canada has covered a good deal of ground in attaining a flexible exception under the Copyright Act; it is gratifying that last year’s report from the Standing Committee on Industry, Science and Technology explicitly calls for an illustrative set of purposes under fair dealing (see recommendation 18).  But, we’re not there yet. As Bob also said last week, “We’re working on it.”

an ideal tariff

Last month Howard Knopf reminded us that the Copyright Board is nearing completion of its work on the issue of collective licensing in post-secondary educational institutions. Under discussion are Access Copyright’s requests for tariffs on some unauthorized copying of copyright-protected materials. The Board has in fact invited parties to “comment on the feasibility and clarity of the terms of the tariff.”

While the documents pertaining to the proposed tariffs indicate that students are to be considered as “authorized users,” the aim of collective licensing is largely to address instances where teachers choose to distribute portions of copyright-protected works, often described as excerpts, to students.

Ideally, any tariff for a collective license would hew as close as possible to the principle of individual and fair negotiation between two parties for compensable use of content, and be based on a clear understanding, not only of the market, but also of Canadian copyright law. To that end, let us hope that the Copyright Board will engage in a thorough investigation of three hitherto-unchallenged assumptions, namely that:

1. Unauthorized copying of copyright-protected materials occurs uniformly across institutions.
2. Such unauthorized copying must always be paid for.
3. Appropriate payment has not already been made.

1. The Scale of Unauthorized Copying

In the political arena, Access Copyright’s portrayal of unauthorized copying, as copying running amok at campuses, was met with neither question nor criticism. Ideally, the Board would engage in some investigation of this claim. At the very least, the Board should recognize that when a textbook is assigned to students as their principle source of reference, the question of excerpts (or course-packs) becomes moot.

For instance, a cohort of approximately 200 students pursuing the degree of Bachelor of Applied Sciences in Engineering at a reputable Canadian university are routinely assigned textbooks as their sole resource for learning. (Full disclosure: one of the cohort is my daughter. In her case, depending on what she might spend, she bought new books, used books, or on occasion nothing at all, relying instead on the copy held in the Reserves section of her institution’s library.)

An ideal tariff would ensure that institutions may opt-out on behalf of those students for whom their principal learning resource is not an assemblage of excerpts. While this strongly suggests that many students in the STEM fields will be removed from the FTE count, other disciplines may fall within the same framework. For instance, Nick Mount, a professor in the Department of English at University of Toronto writes: “In all my classes, undergraduate and graduate, I assign and expect students to purchase books, including many books by living Canadian writers. I stopped using course-packs years ago: they’re aesthetically ugly, and their digital replacements don’t work well in classrooms. To the best of my knowledge my colleagues follow much the same practice.”

The calculation of the tariff must reflect only those students who actually consume works by excerpt, but only when such excerpts are entitled to payment.

2. Some types of unauthorized copying 

i. OER.

The use of open-educational resources (OER) is becoming more common in Canada. These works, often funded by taxpayers, and developed by credible authorities in various disciplines, are released under open licenses whereby users (be they teacher or student) may adapt, copy, or post content without additional fees. While adoption of such resources is not uniform across the country, the trend is sloping upward.[1] The Board should take particular note of the efforts at Kwantlen Polytechnic University (KPU), the first institution in Canada where entire programs have been designed on the basis of open resources and are now showing escalating enrollment.

An ideal tariff would ensure that institutions may opt-out on behalf of, and thus remove from FTE count, those students participating in programs for which the institution has actively sought to ensure a zero cost for materials, by developing and/or adopting OER content.

ii. Exceptions.

Within the Copyright Act are various measures[2] that permit unauthorized copying of copyright-protected materials; chief among these is Section 29 Fair Dealing. As use of Fair Dealing has been contentious, the Copyright Board might wish to limit its consideration of fair dealing to only that which has been supported by the Supreme Court of Canada. To that end, the famed CCH case of 2004 is instructive—the final decision was one of unanimity and the measures of content reproduced and accepted as fair dealing ranged from a few pages to 21% of an entire textbook.[3]

Naturally, quantity alone is never solely determinative of fair dealing; however, this must raise at least some question as to why Access Copyright is asking that educational institutions pay a fee for distributing content which may well be fair dealing. Particularly as prior to the amendments of 2012, the Supreme Court sanctioned classroom distribution of short excerpts which were supplemental to principal learning resources, under the auspices of the category of “private study,” within fair dealing.[4]

An ideal tariff would ensure that institutions may remove from FTE count, those students enrolled in courses where supplemental excerpts would sit within the threshold of fair dealing as appropriate under the authority of CCH (2004). As the Copyright Board itself noted in 2009, “CCH now is the unavoidable starting point of any analysis of the notion of fair dealing (para. 75).”

And while the Board’s discomfort was evident then, their careful adherence to the law paved the way to the Board’s more nuanced understanding of fair dealing as was exemplified in 2015:

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).

3. Fair remuneration for copying

Perhaps Access Copyright is behaving in good faith, and is simply unaware of changing patterns of development and distribution of educational resources. However, members of Canada’s publishing sector cannot pretend to be without guile, as it has come to light that they have chosen to license their wares for use in educational institutions, yet insisted to Canadian MPs that the educational community was not paying its fair share. In a comprehensive post, dated to 23 November 2018, Michael Geist laid bare the claims of some Canadian presses – that they were suffering for the lack of payment from educational institutions – when in fact:

… educational institutions typically purchase both access to the work and a licence for multiple uses and/or inclusion in a CMS. This means that the e-book licence replaces the Access Copyright licence, compensating publishers and authors while providing students and teachers with greater flexibility and value. Moreover, many of the licences are perpetual, meaning that rights holders are paid a higher upfront fee in return for no subsequent royalties or payments.

An ideal tariff issued by the Copyright Board would ensure that institutions do not pay a second time for content already paid for through voluntary market-agreements between parties.

From the profusion of briefs submitted to the Federal Government during last year’s Copyright Review, it is evident that, over the last seven years, consumption of content has evolved in the post-secondary community. Educational institutions have come to rely increasingly on licensed content, where licenses are of both the proprietary and open variety. Unauthorized copying reliant on exceptions to copyright is decreasing. And yet, if Access Copyright has its way, Canadian students will be charged fees to cover the costs assessed against their institution, regardless of whether that fee represents actual compensable transactions of content and use by each student.

 

[1] In October 2018, the Scholarly Publishing and Academic Resources Coalition (SPARC) issued promising news with respect to OER: $1 billion of savings had been realized through global adoption of open educational resources. While the lion’s share of this savings was generated in the United States, Canada is onboard with OER development and adoption. Notably, the province of British Columbia alone achieved over $10 million in savings between 2012-2019.

[2] Section 29, Fair Dealing is principle among them. But also applicable to students’ learning are S29.21 NonCommercial User Generated Content and S30.4 Work available through Internet. Plus, there are a host of exceptions addressing Educational Institutions.  The proposals offered by Access Copyright presume to discard the very existence of exceptions; said another way, the very existence of the Copyright Act.

[3] CCH is predominantly known by the Supreme Court’s final adjudication of the case, but scrutiny of the case at the trial division reveals the amounts copied without authorization; see CCH Canadian Ltd. v. Law Society of Upper Canada. (1999)  Para. 136.  These copies were later accepted as fair dealing by the Supreme Court. CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13

[4] Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37.

assumptions

As of this writing, in the ongoing review of the Copyright Act, 87 briefs have been posted by the Standing Committee on Industry, Science and Technology. Discussion spans a variety of topics; on the volatile issue of the use of fair dealing in post-secondary institutions, there are many submissions from academic institutions, as well as Canadian writers, publishers, and representatives thereof.

Perhaps lost in that crush are students’ voices. Writing on behalf of students across the country, are two organizations: the Canadian Alliance of Student Associations (CASA) and the Undergraduates of Canadian Research-Intensive Universities. Each submission calls on the Government to leave fair dealing unchanged from its present incarnation and practice. The students are clear in their understanding of the exception—that fair dealing is not a veil for free dealing. They also appreciate that fair dealing has the capacity to reduce some of the costs of post-secondary education.

CASA’s submission reminds all that collective licensing costs attributed to post-secondary institutions will ultimately be borne by students:

Post-secondary students are directly impacted by decisions of the Copyright Board … as it is responsible for setting tariffs on copyrighted educational material. While these tariffs are billed to post-secondary institutions, they are sometimes directly passed on to students through ancillary fees … Other times, the tariff fee is paid through [the institution’s] operating budget, which constrains the institution’s ability to provide other critical resources, including updated infrastructure and quality teaching staff, to post-secondary students.

This aspect has not received as much attention as it deserves. That said, the issue of cost was raised to the Standing Committee, but only to quantify the collective license fee as equivalent to “a case of beer per student.” While this may have been an attempt to reassure the Committee that students can bear this cost, the unspoken assumption was that all students rely on excerpts (thus necessitating a fee).

In terms of how students cope with existing fees, Aran Armutlu, chairperson of the BC Federation of Students, recently had this to say:

2nd: Assume every student is going through financial hardship. Every year that passes we are at new record highs with the costs associated w/ attending post-secondary. If there is other quality options that exist that help alleviate those costs, why wouldn’t you use it? 5/5 #OER

— Aran Armutlu (@AranTheArmenian) October 11, 2018

“Assume every student is going through financial hardship.” As assumptions go, this one is more plausible.

A day later, the Scholarly Publishing and Academic Resources Coalition (SPARC) issued promising news with respect to OER:

We did it! #OER has saved students, schools, and parents $1 billion. #OpenEd18 https://t.co/uxY9wu6yu9

— SPARC (@SPARC_NA) October 12, 2018

(Even though OER was still in its infancy in 2013, SPARC had issued a challenge to the educational community: to save $1 billion by 2018.)

Consider the time frame: 2013-2018. Astute Canadians will notice the overlap with the period of time from the last amendments to the Copyright Act, to the start of the present review. To be more explicit—this is part of the backdrop to the figures proffered to the Committee that illustrated declines in copyright-related income by educational publishers.

As SPARC explains, the goal was to document the savings that accrued when a “traditional textbook” (with traditional representing a proprietary, for-cost textbook) was replaced with an OER book. The regions/levels of savings are:

U.S. & Canada Higher Ed: $921,783,169
U.S. & Canada K-12: $45,051,066
International: $38,500,000
Total: $1,005,334,235

Without further details of the Higher Ed savings, we do not know how much of the nearly $922 million dollars is specific to Canadian students. Yet, a reasonable assumption would be that millions of dollars are being saved. This is relevant to any discussion concerning declines in textbook income, or declines in licensing income from excerpts of textbooks.

Committee members could also reasonably assume that post-secondary institutions are slowly, but steadily, addressing the question posed by Mr. Armutlu: “If there are other quality options that exist that help alleviate those costs, why wouldn’t you use it?” The trend to OER is likely to increase.

Granted, at this time, OER substitution is not prevalent at all levels of study across all disciplines. But, SPARC’s data should provoke at least a modicum of curiosity against the claims that fair dealing alone is responsible for the drop in income of copyright owners, and, whether reliance on excerpts applies to the entirety of the Canadian post-secondary student population.

now what?

The Day is done; candles have been blown out in some quarters, tears continue to be shed in others. 150 years of something–whether it is the lifetime of Canada or a chapter in millennia of a First Nation–has been duly marked/celebrated/decried. Now what?

In terms of copyright, we can expect continued calls for stronger copyright to better support Canadian writers. Ignored will be the detail of copyright deficit–that more control invariably means more Canadian dollars going to non-Canadian entities. Also omitted will be any hint that such calls have been in existence for the entirety of Canadian autonomy with respect to copyright, with no appreciable denting of that deficit to show for it. That copyright alone cannot be the salvation of Canadian culture (assuming that our culture is under threat) will also be absent from discussion.

Perhaps we could set aside copyright for a moment and think about that word: culture. Described by Raymond Williams as one of the most complicated words in the English language, it spans the entirety of our collective lived experiences.

Through the past 150 years, Canada has only too often demonstrated narrow-minded thought. Beginning with an unapologetic objective to rid the country of indigenous people,* followed by the Chinese Head Tax, the Komagata Maru, the internment of Japanese Canadians, the rejection of Jewish refugees, … . The situation for visible minorities improved somewhat in the later 20th century, with racism taking on a slightly more polite tone. (Although, children of colour attending school in the ’70s will likely have evidence to the contrary.) And it is difficult to forget the national indifference to the tragedy of Air India Flight 182 in 1985.

Yet Canada has developed a credible capacity, not merely to mouth the importance of protecting minority rights, but to actively encourage the virtue of diversity. The underlying theme for the last 30 years or so is that we are all in this together and we all do better together. Some pride is warranted; it has been possible to find unity without imposing uniformity. But can this be sustained, or is the best of Canada behind us?

Paula Simons, writing for the Edmonton Journal, reminds us not to rest on our laurels. That systemic racism is still part of our landscape, and extremism is on the rise: “for all our lauded tolerance, this was also the year when six peaceable Canadians, at prayer in a Sainte-Foy neighbourhood mosque, were shot in the back and killed in the midst of their devotions.”

With an eye to building on the effort of our prior angels, to what extent are we aware of our collective history? Is that history within reach of all Canadians? In this regard, copyright cannot be ignored. Two proposals come to  mind; one is already underway, the other I offer as an idea.

1) For years, Amanda Wakaruk (copyright librarian for University of Alberta) has publicized the challenges inherent to maintaining accurate information about Canada as a whole, due to the archaic practice of Crown copyright. In her capacity as a private citizen, she has introduced a petition Fix Crown Copyright:

Decades of stakeholder requests to abolish or at least update the Crown copyright provision in the Copyright Act have been largely ignored. This has resulted in a barrier to the re-use of government publications prepared for and paid for by Canadian taxpayers. For example, the refusal of government departments to allow for the copying of content made freely available on their web sites, and then deleted from those same sites, resulted in the loss of countless digital government works in recent years. (Note that very few government publications continue to be produced in paper.)

Removing copyright protection from government works made available to the public will allow individuals, corporations, and other organizations to make better use of these important resources. It will also allow librarians to continue their role as stewards of government information in a digital world. …

The petition will remain open until 23 September 2017.

2) Volumes of scholarship about Canada are, for the most part, confined to the university community. Painstaking explorations that uncover the past, both its pain and glory, are not easily available to the Canadian reader who wishes to learn more.

For instance, I recently sought two books published by University of Toronto Press: (i) The Man from Halifax: Sir John Thompson, Prime Minister (1985) by P.B. Waite; and (ii) Essays on the Constitution: Aspects of Canadian law and politics (1977) by Frank R. Scott. Both are rich in their contribution to understanding the past, both could be staple reading for anyone interested in the idea and existence of Canada. But neither can be easily purchased (the odd copy may exist in a few select used-bookstores) and both have limited visibility in university libraries.

We cannot fault any publisher for letting production lapse when there is no market. And yet these are quintessentially Canadian books; written by Canadians, issued by a Canadian press, and intended without embarrassment as expressly for Canadian readers. Which raises the question: when such books are no longer actively produced or peddled for sale, can they not be made widely and freely available via an open license?

A requirement of an academic appointment is to engage in scholarly effort; to that end, scholars enjoy publicly funded salaries and research grants. With respect to publication, university presses are eligible for support from the Canada Book Fund. University libraries then pour more money into the purchase of information resources; data collected for 29 university libraries show aggregate spending in 2014-2015 as $305,046,488 (see page 4 here). Between government provision of public money, and university spending thereof, could some funds be set aside to convert old printed books into ebooks?

This does not require a change to the system of copyright–it requires consent from copyright owners of existing content, and, cooperation from institutions  If consent is given, and if institutions would share the necessary costs of labour and money, more Canadian content could reach more Canadian readers.

Copyright maximalists constantly tell us that Canadian culture is near death–that Canadian themed content will cease to be written unless copyright is strengthened. They neglect to point out how much existing Canadian content cannot be read at all.

* Roberta Jamieson, featured on CBC Ideas for 30 June 2017, pulled no punches in her telling of the past 150 years. And yet, offers much optimism for the road ahead.

wrapping copyright in the maple leaf

On Friday, The Globe and Mail published “Kids will suffer if Canada’s copyright legislation doesn’t change” by Kate Taylor. I usually enjoy reading Taylor’s work; her capacity to grasp the heart of an issue by delving into underlying facts is often impressive. Unfortunately, on this occasion, her exploration is incomplete and emotion is presented as analysis.

While amendment of the Copyright Act is a year away, there should be no doubt that lobbying has begun. As per the time-honoured script, the essential step is to wrap copyright in the maple leaf. The very fabric of Canada is under assault, and only strengthening copyright can save us all. The script makes for good drama, but is short on evidence.

Taylor, like John Degen last month and Heather Menzies earlier this year, places the challenges of Canada’s educational publishing industry at the feet of the 2012 statutory expansion of fair dealing. (Such a selective invocation of Canadian copyright-related history conveniently omits any mention of the role played by Access Copyright in bringing about the decline of collective licensing.) The claim that reduced revenue from textbook sales is due to unauthorized copying is not new. But when put to the Supreme Court, after consideration of all the facts, a majority of the judges felt that the conclusion did not logically follow:

Access Copyright pointed out that textbook sales had shrunk over 30 percent in 20 years.  … [but] there was no evidence that this decline was linked to photocopying done by teachers … several other factors [are] 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 (para. 33).

But the rising use of Internet-based materials does not placate those who have taken it upon themselves to protect our children. Taylor writes: “ … teachers increasingly turn to free online materials, using fewer Canadian sources in the classroom and fewer materials directly tied to the provincial curriculum. [Advocates] are concerned there is no quality control of free material.” It is entirely plausible that the causality runs the other way: teachers are finding quality materials online, materials which also happen to be free. (The Khan Academy comes to mind.) But in the hands of those opposing any dilution of the traditional publishing industry, “free” and “online” are invoked with a dismissive air at best, or a pejorative connotation at worst.

Setting aside the prospects for alternative publishing models (for now), let us assume that Taylor’s, Degen’s and Menzies’ analyses are correct.  Let us assume that all the ills of the educational publishing sector are solely the fault of fair dealing. What then? Have any of them considered that years of expanding the scope of copyright has only meant that even more Canadian dollars flow out of the country than stay in? Since before Confederation, the market north of the 49^th parallel has been dominated by foreign copyright holders. First British, then American. Copyright is a blunt instrument; any discussion of remedy via copyright should not ignore the trade imbalance. Applying copyright with broad brushstrokes through blanket licensing means fewer Canadian dollars are left to focus exclusively on Canadian creators.

Copyright governs much more than educational publishing, but even if it was confined to educational publishing, an important question has been left unanswered: Do Canadian sources make up the majority of all materials in all subjects taught in primary, secondary and tertiary education in Canada? If the answer is Yes, please provide evidence. If the answer is No, it is astounding that in the name of Canada, taxpayers, students and families are being chivied to provide more of our hard-earned dollars to predominantly benefit non-Canadian entities.

The effort spent railing about fair dealing could be better spent seeking measures that will target support directly to Canadian creators. Given the renewed spirit of federal-municipal relations, why not lobby for dedicated funding for school boards to support creation of open-education resources (OER) specifically to fill the need for Canadian content? Canadian history, geography, and politics could be addressed by local writers and illustrators, in collaboration with teachers, librarians, and archivists. How about seeking some manner of matched funds, to encourage every municipality to sponsor a writer-in-residence? What about expanding the existing Public Lending Right program to address nonfiction educational materials? A little imagination could bring about surprising dividends.

A Made-In-Canada approach to education is not a new concept. Law professor Myra Tawfik describes early 19th century efforts in Lower Canada to secure appropriate learning materials for children:

Lower Canadian teachers began to write or compile their own teaching manuals and schoolbooks. Preferring these to British or American imports and wanting to print multiple copies for use in their schools, they quickly discovered that the cost of printing their manuscripts was well beyond their means. Consequently, they began to petition the House of Assembly asking that it either assume the cost of printing or grant a sum of money to defray the costs (p.81).

Notably, when the House of Assembly delivered the requested support, it came with conditions regarding price and distribution.

As Canada approaches its 150th birthday, with a nod to the spirit that prompted the Massey Commission, the creation of the Canada Arts Council, and the emphasis upon Canadian Studies’ programs, it is time to focus on Canadian creators in a meaningful way.

 

students, food insecurity, OER

My last post focused on a very one-sided report bemoaning the fortunes (or lack thereof) of the educational publishing industry. That industry apparently needs our support in the form of continued high-priced payments. This, without regard for either developments in law or legitimate and innovative efforts on the part of the educational community to lighten the financial burden imposed on students, parents and taxpayers.

According to the report, without such an industry, our authors would no longer be able to support themselves. The trope of the starving author is a familiar one in the realm of copyright lobbying. Every expansion of copyright (beginning with its establishment in the 18^th century) has included references to writers who needed copyright protection to survive. (Yet even in those days, not every writer agreed with publishers’ pronouncements on this matter.) If authors are still struggling after 300 years of relentless expansion of copyright’s ambit, perhaps copyright is neither the problem nor the solution.

Moreover, there is another segment of society where money is tight, or tighter still, and food insecurity is real. (Dietitians of Canada indicate that the main cause of food insecurity is poverty.) Year after year, the difficulties facing post-secondary students are covered in the press. Here is just a small sample of recent discussion:

• Matthew Robinson, Vancouver Sun, 18 July 2015
• Madeleine Cummings, Edmonton Journal, 27 July 2015
• Rachel Grant, Nexus, 18 August 2015
• Emanuela Campanella, London Free Press, 28 August 2015

Many factors play into student poverty, but the rising cost of education cannot be ignored as the principal driver. With tuition and housing as necessities, food is seen as optional. Citing Michael Waglay (coordinator for Beyond Campus Foodbanks) Rachel Grant writes: “the first campus food banks appeared in 1991 at the University of Alberta. Now, … there is a food bank on almost every campus.”

Also appearing on every campus are shelves upon shelves of very expensive textbooks. The educational publishing industry would have us believe that only they can produce such works. Open Education Resources (OER) demonstrates otherwise. Looking for an illustrative example that would have widespread use, I examined materials for pre-calculus. OpenStax’s contribution stands out, based as it is upon a thorough development and review process. A comprehensive book (1400+ pages), it is lucid in delivery and robust in its treatment of the subject. (To ensure a knowledgeable opinion, I placed it in front of my first guide in mathematics; a woman of 35 years’ post-secondary mathematics teaching experience, spanning two countries. Full disclosure – she is also my mother.)

OpenStax College is an initiative of Rice University, with the support of many philanthropic organizations. Its goal is to offer high-quality textbooks which are free online or low-cost in print form. The array of institutions who have adopted OpenStax books is impressive, ranging from high schools and community colleges to exclusive preparatory schools and Ivy League universities.

Returning to my pursuit for pre-calculus learning materials, an informal survey of conventional offerings showed sticker prices beginning at the $150 mark and escalating quickly. With the option to reduce that cost to zero, or near zero, that saving alone could make a meaningful difference to a hungry student.

But there are barriers to the adoption of OER materials. It is not a trivial undertaking to rework an existing course to rely upon a different textbook. Students can only hope that sympathetic professors will consider such exertion worthwhile. Traditional teaching/research institutions could support both parties by recognizing such work as “service” (that component of duties essential to advancement of tenured and tenure-track alike). Yet another barrier is awareness; too many of the professoriate remain unaware that such works even exist. Finally, advanced courses or highly specialized areas are less likely to be served by OER at this time.

But barriers to some are opportunities for others. Institutions which support OER usage, or, better still, invest in OER development, can enjoy a competitive advantage among the student market. A success story that made the rounds of Creative Commons’ enthusiasts is that of Tidewater Community College (Virginia) which shifted an entire program of study to OER materials. Mike Palmedo recounted the early details in March 2014:

 Tidewater identified 21 courses and signed up faculty members to design the curriculum. They started with the desired outcomes for each of the courses, and then built the curriculum with OER materials that would meet those outcomes. Developing the curriculum took about 12 months. One year into the program, the early results are highly positive.

The initiative was not only about eliminating the prior price tag of $3679 for materials, it was also about improving teaching impact. Continuing the story, via an Inside Higher Education webinar this year, Cable Green (Director of Global Learning, Creative Commons) gave additional good news: better grades, higher rates of completion and increased student enrollment.

Closer to home, the Justice Institute of British Columbia (JIBC) is showing great leadership in the development of OER materials for their students, and is enjoying the attendant institutional benefits. Details were first presented at Open Education 2014 in Washington DC by Tannis Morgan, Associate Dean for the Centre of Teaching, Learning and Innovation at JIBC. Morgan emphasizes that not only is this effort “the right thing to do” but also that “being open has actually increased the bottom line.”