Globe and Mail columnist Kate Taylor published an article on Friday titled Concordia University Caught on the Wrong Side of Copyright, which focused on a copyright violation at the Montreal-based university. While Taylor thinks that the Concordia incident demonstrates the problems with copyright and fair dealing (she writes “scofflaws in the universities have been egged on in Canada by the 2012 amendments to the Copyright Act that included a vaguely worded, broad-brush education exemption), a closer look suggests that the case actually says far more about the problems with collective licensing.
The issue at Concordia involved unauthorized scanning and online posting of several poetry books (I will have a follow-up post on the scanning issue). Once the publishers complained, the books were quickly removed. The director of the centre responsible for the posting acknowledged the error and indicated that he planned to purchase five copies of each book, which is equal to the number of graduate students who attend a weekly reading group. That would seem to be the end of the issue as no one suggests that the posting of the entire books were permitted or consistent with university policy, the issue was addressed immediately, and there was an attempt to compensate for the perceived losses.
But wait, argues Ms. Taylor. The case itself surely stems from the state of Canadian copyright law and therefore reforming the law would reduce the likelihood of future incidents. Taylor argues that the law is uncertain (with fair dealing for education described as a “loophole”) and that courts might decide on the appropriate limits “if publishers and writers weren’t too busy creating books to spend their days policing the Internet and too poor to lawyer up.”
Yet the law is not uncertain and the myriad of copyright cases in Canada involving education have all been launched by publishers and authors, often represented by copyright collectives such as Access Copyright and Copibec. Indeed, as I noted last month, the widely used fair dealing guidelines within education are based primarily on decisions from the Supreme Court of Canada, the Federal Court of Appeal, and the Copyright Board of Canada. Despite claims that fair dealing guidelines go beyond the law, the copyright collectives have lost every legal attempt to challenge them and the widely accepted interpretation of fair dealing. This is not a case of uncertainty nor one of publishers and writers shying away from legal action. Quite the opposite, in fact, as copyright collectives have frittered away millions of dollars in litigation costs that could have been allocated to publishers and authors.
But even leaving aside the arguments about fair dealing, Taylor’s decision to focus on Concordia is particularly ill-advised since the university has a copyright licence with Copibec, choosing to pay the collective hundreds of thousands of dollars every year. That is in addition to the massive investment it makes each year in paid access to thousands of content databases, including through membership in the Canadian Research Knowledge Network. In fact, Concordia has been a poster child for Copibec as the first Quebec institution to also use a service that involves additional transactional licences for publications not covered by the licence. In other words, this is not an example of confusion at the university involving the scope of fair dealing. If there is any confusion, it involves the scope of the licence from authors and publishers through their copyright collective since the university paid for the right to copy and distribute portions of the books to students.
Taylor surprisingly does not disclose the fact that Concordia pays for a copyright collective licence, but by raising the issue she succeeds in highlighting the real limits of collective licensing on campuses. Copyright collectives frequently suggest that their licence permits widespread copying, but the reality is that their licences are fairly narrow in scope. For years, university copying practices may even have exceeded those limits, but the collectives were happy to collect fees from every student enrolled in the institution and look the other way. Today, universities are far more conscious of respecting copyright, employing full-time copyright officers and providing extensive guidelines. While mistakes can obviously happen, university spending on licensed access to digital materials runs into the hundreds of millions of dollars annually, far outpacing declines in copyright collective revenues. Moreover, transactional licences (Copibec alone garners nearly $500,000 per year from pay-per-use licences) provides more compensated access alongside open access materials, fair dealing, and de minimis copying.
That the copying in this case involved several poetry books for five students is also relevant. Poetry and other fictional works are often cited as the type of uncompensated copying that collective licences seek to address. The problem is that Access Copyright and Copibec want all students to pay annual copying fees, not just social science and arts students. That means collecting from students in the sciences, math, engineering, law, medicine, dentistry, and others who simply don’t copy these kinds of works. These disciplines represent millions of Canadian students, who access materials by purchasing books, using licensed databases, or reading works under open access licences. Yet copyright collectives would argue that all students should pay these fees, which under their earlier proposals could have run into the hundreds of dollars per student over the course of their education. That is not a case of “society paying for what it truly values”, but rather an instance of authors and publishers trying to force students to pay for materials they don’t even use.
Moreover, the involvement of works of poetry is notable since for years Canadian poets have been vocal about the need for greater transparency at Canadian copyright collectives. The League of Canadian Poets has called for formal audits of Access Copyright and expressed concern about how the millions generated by the collective are distributed. Those concerns remain relevant as the latest Access Copyright annual report shows that one in every four dollars it collects goes toward operational expenses rather than authors and publishers and for every dollar collected from foreign collectives, Access Copyright sends $2.50 out of the country.
Copyright mistakes, whether by authors, publishers or educators, will inevitably happen from time to time. Rather than demonstrating a link between a quickly corrected error and the state of the law, the Concordia incident actually shows that copyright collective licensing was never the panacea its advocates suggest. Instead, emerging alternatives offer a far better approach for all copyright stakeholders with a mix of paid access, open access, and fair dealing.