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Supreme Court of Canada Stands Up For Fair Dealing in Stunning Sweep of Cases

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Thursday July 12, 2012
The Supreme Court of Canada issued its much anticipated rulings in the five copyright cases (ESAC v. SOCAN, Rogers v. SOCAN, SOCAN v. Bell - song previews, Alberta v. Access Copyright, Re:Sound) it heard last December (my coverage of the two days of hearings here and here). It will obviously take some time to digest these decisions, but the clear takeaway is that the court has delivered an undisputed win for fair dealing that has positive implications for education and innovation, while striking a serious blow to copyright collectives such as Access Copyright.

Led by Justice Abella, the court has reaffirmed that fair dealing is a user's right that must be interpreted in a broad and liberal manner. In fact, the court provides further guidance on interpreting fair dealing with an emphasis on the need for a flexible, technology-neutral approach. In reading the decisions in the Access Copyright and song previews cases, it is hard to imagine a bigger victory for education, Internet users, and innovative companies. This post will provide some quick key points in the Access Copyright and song previews decisions.

The Access Copyright case has enormous implications for education and copyright in Canada. With the court's strong endorsement of fair dealing in the classroom, it completely eviscerates much of Access Copyright's business model and calls into question the value of the model licence signed by many Canadian universities. Writing for the majority, Abella adopts several crucial findings, not the least of which is that fair dealing is a user's right. Piece by piece, Abella tears apart Access Copyright's claims. First, she says the attempt by Access Copyright to separate teacher copies for students and students making their own copies should be rejected. The court states:

Teachers have no ulterior motive when providing copies to students. Nor can teachers be characterized as having the completely separate purpose of "instruction"; they are there to facilitate the students' research and private study. 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.

In light of that finding, Abella states:

photocopies made by a teacher and provided to primary and secondary school students are an essential element in the research and private study undertaken by those students. The fact that some copies were provided on request and others were not, did not change the significance of those copies for students engaged in research and private study.

Moreover, Abella refuses to limit "private study":

With respect, the word "private" in "private study" should not be understood as requiring users to view copyrighted works in splendid isolation. Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude. By focusing on the geography of classroom instruction rather than on the concept of studying, the Board again artificially separated the teachers' instruction from the students' studying.

Abella then rejects Access Copyright's claims that fair dealing analysis depends on examining the aggregate amount of copying. Instead, she says that the excerpt itself is the relevant consideration:

First, unlike the single patron in CCH, teachers do not make multiple copies of the class set for their own use, they make them for the use of the students. Moreover, as discussed in the companion case SOCAN v. Bell, the "amount" factor is not a quantitative assessment based on aggregate use, it is an examination of the proportion between the excerpted copy and the entire work, not the overall quantity of what is disseminated. The quantification of the total number of pages copied, as the Court noted in CCH is considered under a different factor: the "character of the dealing".

Abella also rejects claims that buying full books for all students is an alternative to copying an excerpt:

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.

Finally, Abella also dismisses claims that copying in schools has a detrimental economic impact:

In CCH, the Court concluded that since no evidence had been tendered by the publishers of legal works to show that the market for the works had decreased as a result of the copies made by the Great Library, the detrimental impact had not been demonstrated. Similarly, other than the bald fact of a decline in sales over 20 years, there is no evidence from Access Copyright demonstrating any link between photocopying short excerpts and the decline in textbook sales. In addition, it is difficult to see how the teachers' copying competes with the market for textbooks, given the Board's finding that the teachers' copying was limited to short excerpts of complementary texts. If such photocopying did not take place, it is more likely that students would simply go without the supplementary information, or be forced to consult the single copy already owned by the school.

While there is a dissent in this case, the majority has confirmed that classroom copying can be treated as fair dealing. When combined with the addition of education to the list of fair dealing categories, all Canadian educational institutions should reexamine their copyright practices with the view to adopting a far more aggressive, user-oriented approach. For Access Copyright, this decision means that tens of millions of dollars it was seeking from K-12 schools may not be forthcoming and its broader licensing model with educational institutions will need to change.

The other major fair dealing case involves whether the song previews on services such as iTunes qualify as research for fair dealing purposes. Once again, Abella delivers a strong stand in favour of fair dealing. After standing up for fair dealing as a user's right, Abella argues for a very broad approach to the fair dealing research category:

It is true that an important goal of fair dealing is to allow users to employ copyrighted works in a way that helps them engage in their own acts of authorship and creativity: Abraham Drassinower, "Taking User Rights Seriously", in Michael Geist, ed., In the Public Interest: The Future of Canadian Copyright Law (2005), 462, at pp. 467-72. But that does not argue for permitting only creative purposes to qualify as "research" under s. 29 of the Copyright Act. To do so would ignore the fact that the dissemination of works is also one of the Act's purposes, which means that dissemination too, with or without creativity, is in the public interest. It would also ignore that "private study", a concept that has no intrinsic relationship with creativity, was also expressly included as an allowable purpose in s. 29. Since "research" and "private study" both qualify as fair dealing purposes under s. 29, we should not interpret the term "research" more restrictively than "private study". Limiting research to creative purposes would also run counter to the ordinary meaning of "research", which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework.

The bold emphasis is mine as this statement will repeated hundreds of times in the future as it provides an incredibly broad approach to research that can be used by consumers, businesses, and education to justify a fair dealing analysis. In fact, Abella clarifies that the two-part fair dealing test - does the dealing qualify under a fair dealing category and is the dealing fair as determined by the six factor analysis - requires a low threshold for the category analysis since what really counts is whether the use or dealing itself is fair. Abella states:

In mandating a generous interpretation of the fair dealing purposes, including "research", the Court in CCH created a relatively low threshold for the first step so that the analytical heavy-hitting is done in determining whether the dealing was fair. SOCAN's submission that "research" be restricted to the creation of new works would conflate the allowable purpose with the fairness analysis and unduly raise the bar for entering that analysis. Moreover, its restricted definitional scope of "research" contradicts not only the Court's admonition in CCH that "in order to maintain the proper balance between the rights of a copyright owner and users' interests, [the fair dealing exception] must not be interpreted restrictively" (para. 48), but also its direction that the term "research" be given a "large and liberal interpretation" so that in maintaining that balance, users' rights are not unduly constrained (paras. 48, 51).

The other major fair dealing element comes when Abella goes through the six factors to determine whether the song previews are in fact fair. The court concludes that what is relevant is not the aggregate amount of copying (ie. short excerpts of millions of songs) but rather the specific amount copied:

There is no doubt that the aggregate quantity of music heard through previews is significant, but SOCAN's argument conflicts with the Court's statement in CCH that "amount" means the "quantity of the work taken" (para. 56). Since fair dealing is a "user's" right, the "amount of the dealing" factor should be assessed based on the individual use, not the amount of the dealing in the aggregate. The appropriate measure under this factor is therefore, as the Board noted, the proportion of the excerpt used in relation to the whole work. That, it seems to me, is consistent with the Court's approach in CCH, where it considered the Great Library's dealings by looking at its practices as they related to specific works requested by individual patrons, not at the total number of patrons or pages requested. The "amount of the dealing" factor should therefore be assessed by looking at how each dealing occurs on an individual level, not on the aggregate use.

Further, Abella is particularly concerned by the implications for the Internet with an aggregate approach, noting:

Further, given the ease and magnitude with which digital works are disseminated over the Internet, focusing on the "aggregate" amount of the dealing in cases involving digital works could well lead to disproportionate findings of unfairness when compared with non-digital works. If, as SOCAN urges, large-scale organized dealings are inherently unfair, most of what online service providers do with musical works would be treated as copyright infringement. This, it seems to me, potentially undermines the goal of technological neutrality, which seeks to have the Copyright Act applied in a way that operates consistently, regardless of the form of media involved, or its technological sophistication.

The emphasis on technological neutrality is crucial and is likely to be used as an integral part of copyright analysis in the future.

There is obviously much more, including three more cases to discuss, but the big takeaway is that the Supreme Court has delivered a vision of copyright that emphasizes balance, user rights, and innovation.
Comments (78)add comment

pat donovan said:

+orphan works

the brits are including a new sweep on orphan works too...

commercialization, free and unlimnited where a diligent search provides no owner. Also vacumns most of the web.

re copyrighting didn't get mentioned. I wonder why.

packrat
July 12, 2012

BillG said:

Good news!
I'm glad to see the supreme court is holding up as our last hope for reason in dealing with copyright cartels. However, these same groups will now increase their lobbying on the more than willing Harper government to legislate away fair dealing. As we've seen with efforts to defeat ACTA and SOPA, the copyright cartels take their fight out of the courts to the political back room deals.
July 12, 2012

brian said:

a breath of fresh air
after all the attempts at restricting freedoms finally nice to have a decision that appears balanced and in the interest of the public and even of copyright holders. I have a feeling that it is only a small percentage of copyright holders that want there works locked up the way some groups were proposing.
July 12, 2012

Cyril said:

An important decision for fair dealing
An awesome piece of work Michael!

Eager to read about the most interesting part for me about stream and download roylaties.
July 12, 2012

Speckken said:

Prediction
Government statement on "activist" judges in 5...4...3..2..
July 12, 2012

Sal said:

...
Lets hope the universities that signed up do a quick flip out of any such agreements.

Good day for university students and profs.
July 12, 2012

Jim said:

@Speckken
Especially as Abella basically invented evidence saying that copying didn't affect sales because there was no proof schools would buy more books if they couldn't copy. The point is they don't buy books because they can copy.
July 12, 2012

Andrew said:

...
You know, I'm thrilled that our Supreme Court is apparently very level-headed when it comes to this stuff, but I never actually took a close look at these cases under consideration. Upon closer inspection, are you fucking kidding me?! Charging theatres and TV networks for the content being shown? Charging ISPs for what people buy using their connection? Licensing is already done by the producers of the content! They already paid to use your fucking songs! Holy shit, I am absolutely stunned at how atrociously greedy our copyright collectives are.
July 12, 2012

Anon-K said:

Hmmm, fair dealing for education
While overall I'd suggest a good thing, I'd be careful on the declaring victory just yet. It seems to me that, if a teacher copying portions of a work for their students is considered to be fair dealing, then the obvious answer for that, by the publishers, is to raise the price of the text copied in the first place in order to offset the loss of revenue that may be experienced. Let's say that they realized $900 of revenue as a result of copying right provided by the AC license, and another $100 as a result of the initial purchase of the book, for a total of $1000 for each sold copy of the book. One way that the publishers can deal with that $900 loss of revenue is to jack up the price of the textbook to whatever the market will bear; if that is to $1000 then they break even. Should this be what occurs, then is it really a victory for education? I suspect the number won't be $1000, but a price increase to $400 or $500 may not be out of the question, depending on the text, which would reduce the size of the "victory". The other possibility is that, since the margins on text books is lower, publishers either start to carry fewer titles or get out of the text business altogether, meaning less competition to drive down textbook prices. While open source may alleviate some of this, I am not so sure that open source would have the same impact across all disciplines. For instance, open source may have a large impact in legal faculties, but a lower impact in science and/or engineering faculties.
July 12, 2012

David Ellis said:

...
Michael: After a month in which me and my students have been buried in utterly depressing news about the iron grip of cartels and moguls on, well, just about everything, I can't tell you what a relief it is to read your post. Thank you as always for the tremendous resources you provide to the pro-Internet community.
July 12, 2012

Chris Brand said:

@Jim
From the excerpt above, you've got that precisely the wrong way round, she didn't "invent evidence saying copying didn't affect sales", she pointed to a lack of evidence that copying did affect sales - "there is no evidence from Access Copyright demonstrating any link between photocopying short excerpts and the decline in textbook sales". That's completely correct - we're still innocent until proven guilty, not guilty unless you can prove your innocence.
July 12, 2012

Jim said:

@Chris Brand
My point is that she posed the wrong question. They don't need to buy books because they know they can copy - all the more so now, it seems. And Anon-K is probably right: publishers will drift away from the textbook market, which will reduce the material available. Educators and students will end up the losers here.
July 12, 2012

Ki said:

...
Textbook sales are not going down because of copying, but because textbooks are becoming less relevant to education today. That combined with the decreased spending by government education in areas means that not as many textbooks are being bought period independent on if there is copying happening.
July 12, 2012

Crockett said:

...
This is great news for re-balancing user and creator rights. As I read the limitation arguments of SOCAN I again realized how out of touch they are with public reality. While the courts are finally recognizing this, it is tempered by our (and other) government's continual attempts to ratify the opposite in bloated bilateral agreements. Since SOPA, PIPA, ACTA, TPP & CETA have all faced significant and sometimes fatal opposition there is hope that the light is starting to shine in there as well.

Access Copyright is doing their stated job of trying to maximize the returns for their clients work, though it seems to me their high threshold adversarial approach has done more to distance the academic community than endear it. Now that the laws and courts are permitting a fairly liberalized interpretation of fair dealing, there is unfortunately little good will to go around. Now would be a good time for creators to consider their approach and representation.

There are workable solutions out there for both creators and users, but the world is place of change and those that refuse to embrace it will find themselves left behind.
July 12, 2012

Ross said:

Short-term gain, long-term pain
In the short-term, Alberta vs. Access Copyright is a consumer-friendly decision. In the longer term, given the technical protection measures provisions in the new Copyright Act, if I were a publisher I would begin immediately to invest in digital lock technology to prevent copying of my intellectual property and shift my publishing to 100% digital. So consumers should make hay while the sun shines, while Access Copyright loses in both the short and long term and should quit the business altogether (although of course they will choose to continue spending millions of dollars they collected on behalf of copyright holders to try to keep themselves viable).
July 12, 2012

Crockett said:

...
@Ross "In the longer term, given the technical protection measures provisions in the new Copyright Act..."

Which is why the next step in this process is to bring the digital lock issue before the courts. It is ridiculous to have exceptions in the law then put artificial industry controlled restrictions on them. It sound like this bench would see the merit of that argument.
July 12, 2012

Dan said:

...
The real winner here will be companies like Apple and Amazon who are delivering DRM protected textbooks with low annual licensing fees. Textbook manufacturers will now get out of the printed versions (Access was probably the only thing propping them up), so as to make it impossible to copy, resell, or reuse their works. And with new DRM provisions coming, it will fair use will be practically impossible.
July 12, 2012

Eric L. said:

RE: Jim
"The point is they don't buy books because they can copy."

Did you ever consider that people are buying books in the second-hand market and not *new* books because of exborbinant pricing? In terms of classification, a person buying a used book either privately or through a retailer is having the same effect on the publisher as a person downloading a book.
July 12, 2012

Jim said:

@Eric
And did you wonder WHY textbooks are so expensive? Sales are down, print runs are being cut and prices are rising. And you can only copy what is published. This was a stupid, ideological majority decision of a 5/4 divided court. It may be a "great" day for those who think that fair dealing has no limits but it will rapidly lead to less output, less choice and even higher prices.
July 12, 2012

University student said:

@Jim
Jim,

Please disclose your stake in these cases. Are you affiliated with SOCAN, Access Copyright, or any other party involved in these cases?

(My own full disclosure: I'm a university student.)
July 12, 2012

Jim said:

@University student
No stake or involvement whatever. Just that I get a growing sense that most of the people posting here really don't think things through.
July 12, 2012

Devil's Advocate said:

@Jim:
You need to either qualify what you're saying, or accept that, without that qualification, you simply come across as a shill.
July 12, 2012

Crockett said:

...
Jim, the complexities of the market are such that a decision one way will benefit more than others. I agree that this decision may very well lead to reduced output from textbook publishers, at least in print format. This may in the short term affect availability and diversity which is certainly a negative outcome. Over time though things should come around as new systems are developed.

What it will also lead to, by necessity, are new ways of creating and disseminating information. For good or ill, we are in a informational paradigm shift precipitated by rapid technological change. The systems we have had in place that has served us fairly well for years now has to face some new realities. As for businesses who support the industry there will be growing pains; some old players will fail, others will innovate and new entrants will emerge. Our laws also will have to overcome their own historical momentum to come to grips with the demands and changing expectations of the public.

Will this be fair and equitable to all? History seems to say not. Yet, because of the same information dynamics, we are at a time where it is possible for a much greater percentage of affected parties to have a voice which should lead to more balanced approaches. I see the dogged attempts by the incumbent industries to maintain their hold through legislation rather than innovation to be a backward looking policy. Speaking of disclosure I must admit to having no personal stake in these matters apart from wanting to see best outcomes for all participants, being either a creator or user of information. I don't see maintaining the status quo or the adversarial environment as the best approach.
July 12, 2012

Allan said:

Gov't analyst
a la Bob Dylan, the times they are a changin' - just not fast enough. I think copyright owners, copyright cartels and government need to abandon antiquated and restrictive copyright protection measures in favour of improving online delivery - that's where the serious juice can be squeezed: legitimate and lawful ticks in the inline world. Stop investing in sky-high pricing and restrictive access. Whether copyright owners know it or not, they really do want their works distributed widely. Only good things can happen. DRM is just one more roadblock to monetizing creative works.
July 12, 2012

Joel said:

Thank you, Supreme Court of Canada
If I want to buy music, they can have their share; they shouldn't get any of my money because I want to preview a potential purchase.

This decision makes me happy. While I've learned I cannot count on the current government to stand up against business interest, and stand FOR citizen's rights, I'll be able to hold hope for a favourable Surpreme Court ruling.
July 12, 2012

Ryan said:

Textbook market
@Jim: Have you considered that perhaps the textbook market isn't the best way to produce educational materials? What is needed is a way to produce the best content and distribute it to the most students. With things like Khan academy, free university-level online courses, and the rise of open and free production methods in general I would propose that there are alternative systems that can get better materials to more students more cheaply. If that is true the textbook industry should collapse or change, for the better of the students and teachers (including those that "record" their teaching in text and images).

...Crockett beat me to it...
July 12, 2012

Joel said:

School is more then uiniversity
I'm 26 and have been out of pre-secondary school for a while, but even I remember how we had to re-use old, half destroyed, taped up books because the school could not affored to buy one. That includes classes where we would leave the book in the class for the next class in my grade. That was back when the only thing holding teachers back from photocopying everything was cost of paper and ink. Do you honestly think that a court decision te limit copying or add extra costs to our publicly funded (you and I tax payer) school boards would result in an increase of sales?

More likely the kids would just end up using the same books even longer, resulting in even more outdated educations.

Hell, i can see them buying 30 copies of the book, photocopying it 30 times over, sealing the originals, and then just re-issue the backup version for 10 or 20 years worth of classes.

Point is, if schools are where artists expecting to find more money, they better look elswehere. From my experience, schoolboards, ministers and principals will usually choose to compromise a kid's education before increasing costs.

That's why it's fair dealing, because society as a whole would suffer. Copyright is a state given and backed right given to creators to entice to create for the betterment of society. Not get rich.
July 12, 2012

Bounce said:

Textbook market
"And did you wonder WHY textbooks are so expensive?"

So textbooks were cheap until photocopiers and the internet came around to "force" publishers to jack up the prices? Because that's what you're implying.

Not strictly K-12, but I still remember my university days when students were forced to buy a new edition of a textbook because the professor who happened to be the one who wrote the book swaps out a few questions at the end of each chapter every year to publish a different edition. Yes you could buy the $200 textbook new, but many a budget-conscious student would track down a previous edition of the textbook used and photocopy the questions in the new edition.
July 12, 2012

Cheryl said:

...
Schools will still purchase class sets of textbooks where needed. The supplementary material is an article or case study which is copied from a magazine, newspaper, or book to illustrate something being studied. Fewer texts are being purchased because textbook companies are offering online digital versions which are interactive, always updated and current, and less expensive to license. You don't need to worry about textbook companies they have expanded in the education field with a huge online presence and it has become very competitive out there. Plus no more heavy textbooks for our students to drag around.
July 12, 2012

Renee Marie Jones said:

...
It is so wonderful to see a judge who can rule based on fairness and justice and see beyond the corporate greed and corruption that otherwise chokes our society. Yaye!
July 12, 2012

truenorthern said:

Sometimes we need to let the free market decide.
We need stop artifically limiting the transfer of knowledge. The old model of hoarding knowledge and selling access is over.
It's time educational materials are freely available to all. Education Alberta/Education Canada should build a wikipedia type system and stop feeding the publishers/rights holders.
Education of the youth is now and always has been critical to the success of a society.
July 12, 2012

Bob said:

...
It's time to do away with expensive over-priced textbooks. Knowledge should be free...or as free as humanly possible. Every human being on the planet should have free access to all of the materials necessary to get a university education.

This should be considered a human right.

There are a number of online initiatives using a variety of models to develop free and/or open source textbooks. This IMHO is the wave of the future. The parasitical textbook publishing industry and the copyright extortion racket should disappear the way child labour did.
July 12, 2012

Byte said:

Victory
A great victory for common sense in 'fair dealing' and students will benefit greatly from this.

Can't wait for the discussion on 'downloading' vs. 'streaming' and Michael if you're reading this - please elaborate what this means for services that allow you to upload your own songs to a private locker (ignore data de-duplication) and then stream over the Internet to your mobile device.
July 12, 2012

MDT said:

@Jim
Jim,
You say she didn't crouch the question correctly. However, it is the statutes that determine how to crouch the question. The burden is not to prove that it could be causing harm, it is to prove actual harm. You can't (or rather, you're not supposed to be able to) sue someone over something that 'might' be causing you financial harm. You can only sue for actual financial harm. If you can't prove the financial harm, your lawsuit goes exactly nowhere. Does copying hurt them? Possibly. Did they prove it with actual numbers? No. The judge can't 'make up evidence' by saying that they probably did get harmed and guesstimating how much. That would be a violation of the law. All she can do is look at what the plaintiff put in front of her, and they didn't put any proof of direct harm. So they got shut down.
July 12, 2012

Patricia said:

effect on textbooks
Since one issue emphasized is the proportion of the work being copied, perhaps this may push textbook publishers away from the massive and massively expensive textbooks that contain far more than any course could use. Students hate shelling out megabucks for a heavy tome that they use so little of, and many of them just won't. Keep the size down so people aren't paying for more than they want, and the proportion would be too high to copy. I see print-on-demand being useful for this.
July 12, 2012

G M said:

Writing textbooks for fun and profit
@Jim - either you are a shill, or in your zealous quest to look forward and "think things through", you've forgotten the simple expedient of looking at history. This 'fair use' idea has been the law of the land for, well, ever, and hasn't seemed to affect what has been a thriving industry for many many years.

No-one has a crystal ball to see how this will play out, but a few things seem clear:

- this is a huge win for educators and students, and a righteous and deserved loss for greedy corporate copyright collectives

- saying this will destroy the textbook market is roughly akin to claiming that people making mixtapes for friends back in the 80s would destroy the music industry

- the textbook industry is shrinking because it is becoming less relevant, not because people are copying textbooks or selling them secondhand

- I remain unconvinced that textbooks writers do so for profit. My dad (retired Math prof) wrote a textbook on his specialty (Topology) because he a. wanted to write about his life's work, and b. because he wanted to give back to his mother country (India). His textbook was especially written and priced to target grad students in India, and as part of that process he was willing to forgo virtually any renumeration. Money clearly was *not* why he wrote it, and (I will ask him this next time I see him) I suspect he would be delighted if classrooms were copying his book like crazy.
July 12, 2012

Jim said:

@G M
I'm sure he'd be delighted. But until educators find another way to disseminate material, no commercial publisher would touch his book.
July 12, 2012

G M said:

But they did already ...
@Jim - Presumably it didn't and wouldn't get published in JimLand - but here in the real world it did get published, with even a second edition. Mysterious.
July 12, 2012

Crockett said:

Jim,
There's these spanking new technologies called digital files, email, open licencing, the internet ...

Please see my post about 12 comments up.
July 12, 2012

Thad McIlroy said:

Principal, The Future of Publishing
My main reaction is quiet elation. I realize in reading these decisions just how starved we are for major court judgments or new laws that don't set us back in time while building big artificial moats around entrenched interests. Enjoys these happy days: they may not last long.
July 12, 2012

TM said:

Where does it say University or post secondary?
"In light of that finding, Abella states:

photocopies made by a teacher and provided to primary and secondary school students are an essential element in the research and private study undertaken by those students."
July 12, 2012

Joel said:

Commercial Publishing
That's it right there. Already Universities and Hospitals have their own publishing facilities because some things are just not profitable enough or too expensive to do commercially.

I Think the hope people have for the future is that we will reduce the impact of middle people. I.E. instead of a publishing house printing and publishing paper copies of a textbook, they'll take a much smaller percentage and just advertise/distribute the digital copy to their stores/clients.

Think of apps. You can make something very cheap, and still make lots of money, provided you have very large access. It may not work for a topology book that is targeted towards a specific number of Math students, however in anything general it should work.

However the topology student's, or any specialty student, could easily visit their university book store who, along with a great librarian, could easily index store and distribute these books without needed the help of lets say... Thompson. Already it's being done. Again, look at university print shops.
July 12, 2012

Jim said:

...
Have any of you actually read the decision? What about the dissent? You should, because there's some scary stuff in what Rothsteoin says for the minority - and this was close, at 5/4. This is what he says:

* the SCC ignored the basis on which both parties had agreed to appeal;
* it ignored its own rules for when a tribunal or lower court decision should be reviewed;
* it ignored findings of fact, even though they were reasonable findings;
* it ignored the specific wording of the statute.

Whether this will invite a legislative response will depend on whether the Government caresm and whether they have the stomach for any copyright debate. But even if you like the decision, don't lose sight of how the majority bent the rules to come up with the answer they wanted.

As for the consequences, too soon to say. The case goes back to the Copyright Board for review. They can't ignore the SCC, but it's unlikely they're going to eliminate the K-12 tariff. Then there's the extent to which this applies to post-secondary. As TM pointed out, Abella focused on elementary and secondary education and the nature of instruction at that level. It doesn't follow that an analysis of higher education will lead to the same conclusions. Or that the facts will - Access Copyright has a very extensive database of what's copied in colleges and universities, and the relationship between that copying and sales of textbooks and other materials. So this has a way to go before the dust settles.

Longer term, if publishers can't make money, they won't publish. It's taken nearly 50 years to build a viable Canadian industry. There are other ways to create and disseminate content, of course, but they are expensive and won't coalesce anytime soon.
July 12, 2012

Anne said:

...
Jim - the sky has been falling on publishers since 1709. But somehow, the world still marches on. And we still have publishers. And we still have books. And we still have lobbyists for the publishing industry...
July 13, 2012

WS said:

Encyclopedias stopped being produced because...
of piracy???
More like they just can't keep up.

July 13, 2012

Joe said:

...
@Jim
First of all, I'd like to point out there's an outrageous markup up university level textbooks over here (They sell the *exact* same books in india/asia wherever for like 1/3 of the price, just softcover with a "DO NOT SELL IN NORTH AMERICA" Sign on it). I don't know about you, but for most of my textbooks, I sure as hell did not need the hardcover version at 300% of the cost of the softcover, and heck for some there's only softcover versions anyway just with a 3x difference in cost. If they can sell it over in those countries at those prices, I'm sure the sky isn't just falling on them yet, in fact, I think they caused part of the issue themselves by raising the prices so much that people look to other options.

Hell, in the worst case scenario, given that most of these books are written by the professors themselves, if no publisher will publish textbooks anymore I can see the "cost" of these books easily being bundled into part of the course costs with the university publishing/printing ring-bound copies themselves (this is actually already done for small-sized courses at my university back when I was there)

In the end, even if this means large corporations may shy from textbooks, it does NOT mean that no textbooks will be printed. if there's a market, and there always will be, someone will always find a way to profit from it.
July 13, 2012

Crockett said:

...
OK Jim, you have some valid points, and the decision was close admittedly. I wonder though if the decision was 4/5 you would be as critical?

Your concern seems to be for the Canadian publishing industry which I am sure employs a number of people who have families, mortgages and such. It will be a shame if there are job losses in any industry, but we live in a world of change were adaptability is even more important than before. This has been the same throughout history and is nothing new to the human experience, embrace change and innovate with the times to succeed.

Will this mean that textbooks with Canadian content will dry up? Will those writers (many of whom I understand are professors) not create material for their field or professions? That seems self destructive. I think rather there will be other methods of distribution that come online. I am curious how open licence or even paid digital distribution will be more expensive or long delayed? The technology is already there, if I am wrong on these points then I would be pleased hear differently. I understand that it takes work to produce information in a form that is useful to education and that work costs something. The challenge now is to use the tools of today to innovate both the dissemination of information in way that is productive and rewarding (monetarily, professionally or personally).

I have nothing against the publishing of books, nor the creation of music or filming of movies. I do have a problem with people or industries who are not willing to embrace change when that is what their clientele are demanding and turn rather to legislating moats around their castles.
July 13, 2012

bshell said:

I get paid by Access Copyright and I'm happy about this judgement
I write books that are used in schools. Every year Access Copyright sends me a cheque for a few hundred dollars. It's nice, I'll admit. But it's relatively small. Every year I write to Access Copyright as an author and tell them that I *WANT* my books to be photocopied in schools for free for educational purposes. I am *VERY HAPPY* that young people are learning from my books and I've already been paid for my work through royalties from my publisher. And my books have opened many other doors for me that are lucrative. But Access Copyright is not working for me, the creator. They ignore my yearly letters. I am so happy that finally the highest court in the land has sided with me and will hopefully force Access Copyright to stop the shameless practice of punishing people for teaching and learning. Shame on you Access Copyright--even though you send me that cheque every year.
July 13, 2012

Crockett said:

Thoughts on adaptability ...
Did the Scribes of old collectively walk into the long dark night at the advent of the printing press? Did the livery workers ride into the sunset when the steam engine was born? Did buggy makers all close up shop when the automobile became popular?

I'm sure at each of these technological epochs some lost their livelihoods but others did very well as they embraced the future. For a more contemporary example I have a good friend who did very well owing and operating large video arcades in the 80's & 90's. As you may be aware that industry was supplanted by the home console industry. Did he declare bankruptcy? Did he lobby the government for a ban on Nintendo and video games in the home? No, he used his experience and entrepreneurial spirit to move into that new industry and is well off for it.

We are now at another great time of change within the information industry, failure to learn by the examples above will only lead to failure. Good on the SCC for recognizing it.
July 13, 2012

Jim said:

@Joe
The textbooks in Asia are that cheap because they are suibsidised by the print runs in America.
July 13, 2012

Jim said:

@bshell
And you would feel the same way if (a) you stop getting the Access Copyright cheque and (b) your royalties fall because of what will likely now be even more photocopying and (c) your publishers stops producing your books because sales are too low?
July 13, 2012

bshell said:

@jim
You are a troll, but anyway: (a) It would not stop, because a fair amount of non-education-use copying does happen and I would get compensated for that. (b & c) I no longer get royalties because the book is out of print. In fact all rights have reverted to me, the author. Publishers care about a book for about 6 months. After that, unless you are the one-in-a-million best-selling author, they don't care about you or your book at all. They are on to the new "list". And by the way, publishers have ALWAYS tried to cheat me out of my royalties and whittle them down to as low as possible. NEVER BELIEVE THAT PUBLISHERS OR ACCESS COPYRIGHT ACT IN THE INTERESTS OF CREATORS. THEY DON'T. They operate in their own self interest. All but the most successful authors will tell you this.
July 13, 2012

John Wilson said:

To the doomsayers
@Anon-K
(Just because your post seems to have started all this.)
For the life of me in the K-12 world I can't see teachers copying entire textbooks and trying to hide behind what the Supreme Court says is our right to fair dealing. Relative portions, yes, but entire textbooks? Are you kidding? The cost to school boards would be nearly the equivalent of purchasing the text books in the first place.
That, and I don't think copying entire text books falls under what the Court says is the our right to fair dealing. Not a single reference to even the possibility of that.
From my student days and continuing on to today if the few paragraphs handed out to me in class in secondary school, university, my technical training and so on caught my eye and I'd looked at the entire book I'd get my own copy. In short, it created a sale. New about half the time, used the other half. Research has shown that in the majority of instances that's exactly what happens.
So is the textbook market blown out of the water? Nope.
In fact, I don't think it changes much of that at all. If anything up to yesterday students would be "pirating" text books they found too expensive to buy for themselves.
School boards, which have trouble balancing budgets may come off a bit better but if SOCAN and the textbook publishers have two or three brain cells to rub together they'll find a way to keep sales levels where they are or actually increase them. That may come from reducing per unit costs to school boards, Universities and so on perhaps based on number of copies ordered and so on.
The end of the world isn't nigh. Unless, of course, they follow the US entertainment industry's lead, stick their heads in the sand and scream MINE from the rooftops.
As you say, textbook publishers are in it to make a profit. You only do that with sales not with having temper tantrums.
July 13, 2012

Chris Brand said:

But, but, the US
As I understand it (and admittedly I'm not an expert on US copyright law), the US is a far larger market for textbooks than Canada, and they've never had anything like this tariff on copying schools, so the very existence of a textbook market in the US refutes Jim's cries of "the sky will fall".
July 13, 2012

Jim said:

...
@bshell: So the definition of a troll is someone who doesn't agree with you? And yes, you are probably right - less successful authors do tend to feel cheated.

@Chris Brand: US schools operate under quite narrow copying guidelines and, at least till recently, also spent much more on textbooks.
July 13, 2012

Eric L. said:

RE: Jim
"@Chris Brand: US schools operate under quite narrow copying guidelines and, at least till recently, also spent much more on textbooks."

Citation needed. I found no indication whatsoever that the US textbooks are any cheaper. Also, this claim is kind of at odds with whole "rising cost of education" that's happening in the US.

One article found in five seconds: http://www.usatoday.com/news/e...53123522/1
July 13, 2012

Eric L. said:

RE: Jim
From the article:

"A push to create free or inexpensive textbooks is gaining momentum as educators, philanthropists and policymakers nationwide search for new ways to rein in college costs."

Pretty much flies in the face in your argument, no?
July 13, 2012

Jim said:

@Eric L
No, what I said was that US schools spend more on textbooks.
July 13, 2012

Crockett said:

...
Hi Jim, though we may disagree on some points don't let the others scare you off with troll talk. One thing I really appreciate about this blog is it is not moderated by user and all opinions are welcome (at least by some). One sided discussions are very boring.
July 13, 2012

Andrei Mincov said:

This is a very sad day for copyright and freedom in Canada
This victory is akin to the victory of the bolsheviks burning the palaces of the rich.

The problem with individual rights is that once you start destroying them, there is no stopping.

First the government takes away your property (through taxation and creating limits to what you can do with your property), then it takes away your freedom (through mandatory licensing and institutional political correctness), then it goes for your life.

There is no such thing as partial recognition of individual rights. There is no compromise between food and poison. There is no compromise on principles. There is no compromise on recognizing the right to control the use of one's works and the mythical "user rights".

I write about this in more detail at http://mincovlaw.com/blog-post/ supreme_court_of_canada_delivers_a_mighty_blow_to_copyr
ight_and_freedom_in_canada today...

Very sad day indeed.
July 13, 2012

Andrei Mincov said:

Link got corrupted.
Here's the short link: http://bit.ly/Nzp76Y
July 13, 2012

Jim said:

@Andrei
I think the bigger concern is that the SCC is taking on a role that belongs to Parliament. This is what Justice Rothstein was getting at. And it's fine to hail the outcome when you agree with it, but except when legislation is unconstitutional, the courts are actually supposed to apply the law as written, not what they'd like it to be. And absent a constitutional basis for the copyright decisions, this was a very dangerous path for the SCC to take.
July 13, 2012

Eric L. said:

RE: Jim
"US schools operate under quite narrow copying guidelines"Sorry Jim, when I read this, "narrow copying guidelines" to me sounds like "strict" copying guidelines. Hence, you can see why I was confused.
July 13, 2012

Crockett said:

...
@Andrei "...mythical "user rights"?

I could be wrong but are not the exceptions listed in C-32 rights given to end users (such as shifting, backup, mashups etc)? Never mind for the moment that they were taken away by your right to lock it.

Copyright has purposes other than giving you control over your work, it is also to enrich society.
July 13, 2012

SMR said:

People seem to have forgotten the basic principle behind copyright.
The purpose of copyright is to promote the creation of creative works for the benefit of society. No where does it say that creators or distributors of creative works should get wealthy from it. In fact, extensive copyright works to the detriment of society because creators don't need to create more, they just need to create a few works and then collect royalties for the rest of their life.

Unfortunately, it seems that much of the time creators are not the ones that benefit from copyright. It seems that publishers and distributors are the ones that benefit from greater copyright protection. As gatekeepers to the methods of distribution, in the past, they have made unfair deals with creators that give them a disproportionate share of revenue from the distribution of such works.

Society does not owe distributors anything at all. There is no benefit to society from excessive profits made by distributors. Any excessive profit made due to a law that gives disproportionate income to distributors is a monopolistic profit (economic rent) and is detrimental to society.

It is detrimental because the resources, people who are non creators and money in excess of the true cost of printing and distribution, could be used in more productive ways to the benefit of society. Since distribution is now easier and new, innovative companies now distribute some creative works, it is likely that traditional distribution will be a smaller industry. Thus investors, manager and employees who are no longer needed should find new things to do.

It is also best that buyers of creative works do not overpay the distributors and instead use their money to buy other goods and services. They can then buy more creative works, which will benefit the actual creators, or they can buy other goods and services. Maybe the former distributors will create new products and services that the people can then buy with their saved money. It is this re-allocation of resources that will benefit society the most.

http://en.wikipedia.org/wiki/Economic_rent

Textbooks are compilations of factual knowledge which is not subject to copyright and thus should cost little more than the cost of paper and trucking. Any amount more is economic rent. Schools should really specify what they want in a textbook and then ask publishers to compete to produce it at the lowest price.
July 13, 2012

Crockett said:

1
SMR,

Not all the stuff in textbooks are factual knowledge, some falls into the creative sphere. Also the actual layout and presentation is a work in itself. Other than that I think your comments are well said!
July 13, 2012

SMR said:

Re: Crockett
You are right, there is plenty of creative value that can be be added to textbooks to make them more effective teaching tools.
July 13, 2012

Big Al said:

Copyright King
Access Copywrong! Haw Haw!
July 14, 2012

The Dirk said:

Reforming the CB
In these cases, the SCC is overturning the decisions of the Copyright Board, not just unilaterally imposed fees by SOCAN, etc. That points to a significant problem beyond the often cited greed of SOCAN, Access Copyright, etc. The Copyright Board (CB) is supposed to regulate these collectives and protect consumers, students, etc. However, these decisions make clear what some of us have known for a long time: the CB does not act in the interest of Canadians, but of copyright collectives (think of the recent dancing tax at weddings approved by the CB in addition to these cases). What Canadians need to do is pressure the government to reform the CB. Average Canadians can't afford the legal fees to challenge the collectives at the CB, but we need fair and balanced representation at the CB. So the govt needs to either reform the CB or fund an advocacy/ombudsman type group to represent Canadians at the CB.
July 14, 2012

The Dirk said:

On textbooks
Further on the K-12 case. I fail to see how this decision would lead to a significant decline in textbook sales in either K-12 or post-secondary. This doesn't enable copying of whole, or even half of, textbooks to use in class. Schools will still buy class sets and stock their libraries. College and university profs will still assign course texts and their libraries will still buy books and license all manner of databases. What likely changes is that AC doesn't get their money. Yes a bit of that does end up at publishers and that part of their revenue stream will shrink, but that has to be a very small part of their total revenue.

When I think of the money from the college I work at that goes to publishers in the form of textbook sales and library expenditures, the AC model license fee would be a small percentage (5%?) of that amount. After AC skims their healthy portion off, the publishers are only getting what two or three percent of their total college based revenue via AC? I can't imagine it being that much different in K-12. If they go bankrupt it's not this decision that will cause it.
July 14, 2012

Crockett said:

...
@The Dirk "However, these decisions make clear what some of us have known for a long time: the CB does not act in the interest of Canadians, but of copyright collectives..."

I have thought the same thing myself, of course those concerned with maximal copyright would always point to the Copyright board as an impartial arbitrator. One only has to look though at their rulings to see that they most often come out more on one side than the other. It is illustrative that those same people who held the CB decisions in high regard are now bemoaning the recent decisions of the Canadian Supreme Court.
July 14, 2012

John Wilson said:

@Andrei Mincov
It almost looks like you got over to Techdirt first, got refuted there and decided to try over here.
I won't recap all the talk at Techdirt also an unmoderated site though there's a report button that hides trolls, if you want to see what they have to say you have to click the text on the post. ;-)
I would urge people to click the link, what Andrei thinks is fair is eternal copyright and a clear fixation on the old Soviet Union, as if that has a thing to do with Canada.
July 14, 2012

Napalm said:

...
@Jim: "publishers will drift away from the textbook market, which will reduce the material available. "

Definitely. They will abandon publishing and open massage parlors instead.

July 14, 2012

Heather said:

...
Calling someone a schill and/or a troll simply because they disagree with you? Seriously?
July 16, 2012

Crockett said:

Perspective ...
Heather there will always be that talk on boards, it's just a fact of life, I spoke against it a few posts above. What I would like to point out though is this is one of the most prominent pro-internet boards out there and ANYONE if free to post here without censorship. Try doing that at a copyright maximal site. *cough* johndegen.com *cough*
July 16, 2012

JG said:

Evidence
"there is no evidence from Access Copyright demonstrating any link between photocopying short excerpts and the decline in textbook sales"

There is actually evidence to the opposite:

See:


Does copyright and patent law promote the Progress of Science and useful Arts?

Most scholars say no:

1 - An 800-page academic study of German copyright law concludes copyright hinders the proliferation of knowledge and the progress of science:

http://www.spiegel.de/international/zeitgeist/0,1518,710976,00.html

3 - Bill Gates has said:

"If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today".

Bill Gates, Challenges and Strategy Memo. 16 May 1991
http://en.wikiquote.org/wiki/Patent

4 - Prof. Boldrin and Prof. Levine think that the assumption that IP monopoly rights would promote Science and Arts proved to be a flawed assumption through all history:


http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm
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