Concordia by Viola Ng (CC BY-ND 2.0) https://flic.kr/p/c9J4Ks

Concordia by Viola Ng (CC BY-ND 2.0) https://flic.kr/p/c9J4Ks

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Who is on the Wrong Side?: Why the Copyright Mistake at Concordia Highlights the Problems with Collective Licensing

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.

20 Comments

  1. mad mag: 15 reads per paper copy.
    newspapers: 5 (our house)
    copyright violations: None.

    university: guilt assumed.

    since they have a broad license, may I see WHO gets paid
    for what? (authors, that is.)

    and sharing your classnotes is now a crime against humanity, i suppose.

    packrat

    • Sophistry. People in a household reading a single copy of a newspaper is not the same as someone (in this case, at a publicly-funded university research centre) posting complete electronic scans of books on the internet for anyone to download.

  2. You have flagrantly mis-represented the facts. There may or may not have been 5 graduate students receiving the books; as Taylor clearly points out and you ignore, the books were also posted online on a universally accessible “document sharing” site (in contravention of the site’s copyright policies), downloadable by anyone. No one has said how many people downloaded them. No one knows where they spread from there. And no one is saying that this is fair dealing. Except you, Michael Geist.

    As for this having anything to do with the copyright licence at the university, there is no connection. These were not course materials. They were part of a campaign by a research centre to create an “online library”.

    • Where did Geist say this was fair dealing? His post says that everyone would agree that it was a copyright violation and that it was immediately addressed by the university.

      The connection to the copyright licence comes directly from the Taylor article in which she tries to connect an infringement with confusion over the copyright rules at Concordia. Given the existence of the collective licence that she does not even mention, that is a far more likely source of confusion than fair dealing. Taylor’s piece keeps referring to the lack of payment in education. Geist points out that Concordia is a bad example of that since they do pay.

      • On that point, in my haste, I misspoke, so outraged was I at the intellectual bad faith pervading every line of this piece. First, the other points in my comment, which you do not address. Second, the argument that licensing bodies are wasting money by challenging activities which may or may not be permitted under a vaguely worded law and Supreme Court judgement, when that money could be distributed to authors: it is in order to protect the flow of money to authors that these bodies have undertaken these challenges. Third, the notion that creating an online “library” is a “mistake,” and that the matter is now resolved. Fourth, the very title: suddenly the authors of these books are in the wrong and not the people with publicly-funded budgets and salaries who posted them online. Fifth, the claim that legal challenges on the part of authors are rampant; that is nonsense.

        And nowhere does Michael Geist come down on the basic issue: should creators be paid small residual sums for education use of their work, given the fact that someone is paid to teach it and the income disparity between the two is humungous? If not, why not? If knowledge should be free, et’s start with tuition and professor salaries, not just independent authors.

        • So we agree that you were in error on the fair dealing claim. On your other points:

          1. That the collective licensing agencies have wasted money on their legal claims seems obvious. They have lost every time and at every level. You may feel that is a good use of money but I think others feel differently. I’m not sure what you think is vague about the wording of the law or the court decisions. Have you read them? Just about everyone seems to get them, except for the collectives (and Taylor) who insist they are vague. The courts don’t agree, the Board doesn’t agree, and most lawyers don’t agree.

          2. What more do you want done on the scanning? The works were removed, books were purchased, and the instructor admitted error.

          3. I think Geist’s point in the title is that collective licensing has the effect of creating confusion about rights. Taylor claimed fair dealing was responsible for the confusion, which doesn’t add up at a university with a collective licence.

          4. There have been lawsuits and judicial reviews of copyright in education cases at the Supreme Court, Federal Court, Copyright Board, and the York U case. All cases were brought by authors, publishers and collectives.

          5. The post states that paid access has grown faster than any declines in collective licensing revenue.

          • 1. Any major change in legislation and practices that is so obviously harmful to the interests of the parties concerned fully justifies challenging new practices in court. And you’re simply wrong, there was enough (calculated?) vagueness and ambiguity to ask the courts for clarification. Yes I have read the decisions. And on the point of the administrative costs of the licensing agencies, first, that is not an argument against their mandate, and two obviously when your revenues are slashed your operating costs as a percentage of your revenues will increase.

            2. Five books were purchased apparently. How many were downloaded? And what I want done on the scanning, first of all, is an admission by the parties concerned, and commentators like Geist, that this was not a “mistake”.

            3. The title clearly says that someone other than Concordia is in the wrong here. Who? The licensing agencies? They have nothing to do with this story, that’s a pure red herring. There are (mostly underpaid) authors, (mostly) small presses, and the university. Geist says the university is not in the wrong. Who is? Also, I don’t agree with Taylor, and I don’t believe there was any “confusion”. An online “archive” of entire books is not confusion.

            4. Which individual authors took challenges to the supreme court?

            5. What is the source of this paid revenue?

          • You didn’t answer my question: should there be a form of payment for creators whose work is taught? It’s a yes or no question.

          • 5. It would appear that Geist is comparing apples and oranges with respect to what he calls “licensed access to digital materials” expenditures by universities on the one hand and copyright licensing expenditures on the other.

            The former would simply be library purchases of books in digital rather than bound format, which has the convenience of fewer maintenance and storage costs and multi-use without library users competing for unique copies of books.

            That has nothing to do with copyright licensing, either with respect to the use of the materials or the kind of revenue/expenditure. Publishers are finding ways to monetize electronic content – even, or especially, open access, is a way of monetizing content, adopting a user-pay approach, in which only the wealthiest institutions will be able to afford to enable their faculty to publish. But all this material is sold under unique ISBNs or ISSNs and the money goes to the publisher alone (barring royalty arrangements they have with their authors; most have none or grant a pittance).

            Where copyright licensing benefits the creator of the content is two-fold: first of all, it is used for the ubiquitous coursepack of photocopied, and now scanned, book chapters and the like, something quite apart from the sale of electronic versions of academic monographs; and second, the revenue goes to the creators, not the publisher. I think we need to coin a new term for this kind of reasoning by our esteemed Canada Research Chair: “Geist of hand” (rhymes with sleight).

          • To that I need to add, in case anyone is unaware, that “fair dealing” aims to exterminate revenue under the copyright licensing regime for coursepacks.

          • And of course it makes perfect sense that today the cost of “licensed access to digital materials” is rising, with the shift to the acquisition of electronic editions of monographs and journals by libraries. That tells us nothing about what is being spent on *classroom* materials, or who the recipients of these digital expenditures are. Geist of hand.

          • I guess you have nothing more to say on the matter. I’m not surprised.

  3. Pingback: Yes We Scan: Why Concordia Should Not Shelve Its Book Scanner - Michael Geist

  4. There you have it. It’s all smoke and mirrors from Michael Geist.

    First, he confidently assures us that “university spending on licensed access to digital materials runs into the hundreds of millions of dollars annually, far outpacing declines in copyright collective revenues.” The clear implication is that the people who benefit from copyright collective revenues should stop resisting so-called “fair dealing” – there’s nothing fair about it – and embrace the new order. They’ll do better under it.

    He reiterates this with the comment: “emerging alternatives offer a far better approach for all copyright stakeholders with a mix of paid access, open access, and fair dealing.” The claim is clear.

    But lo and behold, he’s deliberately confusing categories. The licensed access expenditures he refers to are library acquisitions, increasingly in digital format (journals and monographs). Virtually none of this money finds its way into the pockets of creators.

    And the emerging mix of paid access, open access and fair dealing see money being spent on library materials but not on classroom materials, which will be given to students without royalties as fair-dealing coursepacks. Everybody will make money – from professors to coursepack employees – except the creator. And if you think Canadian creators are living the life of Riley, find one and ask them.

    Two different worlds, library acquisition and classroom materials, here conflated into one happy family where all the copyright stakeholders are happy. You forgot one such stakeholder, Michael Geist: the people who created the knowledge others teach and publish, often at a handsome rate. (Michael Geist’s salary: $194,000 [2015 figure]). Now, I’ve published your salary, Michael Geist (made publicly available by the Ontario government, for those outside the province). So go ahead: I’m an independent Canadian creator, publish our average income.

    • This kind of intellectual dishonesty – claiming that “all copyright stakeholders” will benefit from this new mix of paid content, open access content, and fair dealing content, when what most concerns creators is fair dealing, and that’s the one without any monetary benefit (publishers are doing quite nicely from open access) – is appalling.

      To this we could add such things as the complaint that the copyright licensing bodies send money out of the country – where do you think all those digital acquisitions are sending money to – to Montreal poets? It all sounds very much like the Republican senators vaunting the benefits to the West Virginia coal miners of losing their health care under the repeal of Obamacare.

      The comparison is not gratuitous. What Geist is preaching here is a laissez-faire, market solution to a situation to which, especially in Canada, no market solution exists. At least not one under which Canadian creators can survive. It’s quite simple. Sales in book form of work by Canadian authors cannot, except in a few rare cases, hope to sustain continued production. Subsidiary revenue is needed. For years, a few pennies a page in copyright licensing provided this revenue. I don’t know anyone living in Rosedale because of it. But “tenured libertarians”, as Kate Taylor calls them – who lived through the experience of paying a few pennies a page when they were students and now earn a couple of hundred grand a year – have set their sights on this system, cheered on by university administrators and students.

      The big publishers will find a way to survive the digital shift, although the quality of their product will decline – without subsidiary revenue certain kinds of editorial projects are no longer feasible. Independent creators will not survive the assault on their rights. Nor the copyright licensing agencies, obviously. Were they really the biggest enemy of our society that they had to be taken down like that?

      In this sense what is happening is every bit like what happened under Harper and is happening under Trump: starve civil society organizations of the money they need to carry out their work and let the market take over. I can’t wait.

  5. Derek Shaw says:

    we need idiot filters again… Remember those? Vastly improved the signal to noise ratio on BBS systems (which had very limited bandwidth, hence the need to filter).

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