The Canadian Copyright Institute, an association of authors and publishers, has released a new paper that calls on the Canadian education community to stop relying on its current interpretation of fair dealing and instead negotiate a collective licence with Access Copyright. The paper was apparently published in the fall but is being released publicly now since Canadian education groups have refused to cave to Access Copyright’s demands.
The CCI document, which raises some of the same themes found in an Association of Canadian Publisher’s paper that distorts Canadian copyright law (thoroughly debunked by Howard Knopf), features at least three notable takeaways: the shift to threats of government lobbying, long overdue admissions that the value of the Access Copyright licence has declined, and emphasis on arguments that have been rejected by the courts and government. There are also three notable omissions: the fact that the overwhelming majority of copying in schools is conducted with publisher permission, the role of technological neutrality, and the relevance of other copyright exceptions. By the end of the document, the CCI and Access Copyright work to fabricate a new fair dealing test that is inconsistent with Supreme Court of Canada rulings as they call for dialogue so long as it leads to a new collective licence.
First, the CCI threatens the education community that it will lobby the government to change the law unless it resumes paying Access Copyright:
Without an acceptable solution – in other words, the resumption of licensing for schools, colleges and universities – writers and publishers will have to pursue political as well as legal solutions. This is not their preference. There exists a long and valued relationship (symbiotic, even) among writers, publishers, educators and students. We believe that there is a better way forward.
The threat of political solutions is particularly laughable given that the same groups lobbied extensively for two years during the Bill C-32/C-11 process to urge the government to scale back fair dealing. Despite numerous appearances before parliamentary committees, star witnesses, social media campaigns, and public opinion pieces, the government completely rejected their demands. With no appetite for more copyright reform in Ottawa, the threat of a renewed lobby campaign is no threat at all.
Second, Access Copyright and the CCI finally admit that the recent legal changes have reduced the value of their collective licence. After the Supreme Court decisions, Access Copyright stated:
This decision, however, has no impact on the requirement that royalties continue to be paid on
the hundreds of millions of pages of student texts that are copied for use in Kâ€12 classrooms
It even argued after the decision that the Supreme Court had not ruled that the copies at issue were fair dealing. Now the groups acknowledge:
Copyright owners may not like but they do accept the Alberta (Education) decision, and that means accepting a lower value for Access Copyright licensing.
In fact, the decreasing value of an Access Copyright license stems from more than just changes to Canadian copyright law. The collective has also admitted that works older than 20 years are unlikely to be copied under its licences. In its 2012 Payback FAQ to authors, the collective noted:
Q. Why are you only asking for works published within the last 20 years?
A. Our statistical analysis of copying data shows that works published more than 20 years ago are unlikely to be copied under our licences.
This admission from Access Copyright shows how its repertoire is declining in value since a growing percentage of newer materials are available by alternative means, while the older materials may not be subject to an alternate licence, but they are unlikely to be copied. Over the coming years, the Access Copyright squeeze is only going to grow as the entire repertoire of materials likely to be copied – the materials published within the last 20 years – are all published in the digital/Internet era with many available through alternative means such as open access or site licences.
Third, the document’s emphasis on the Supreme Court’s dissenting opinion or attempts to downplay the law provides a sure sign of a weak argument. The law of the land is reflected by the majority, not the minority view. The references to a “very powerful dissent” or the “bare majority” suggest doubt that simply does not exist. As I pointed out in this post, each of Access Copyright’s key arguments (user rights, copier perspective, private study, and aggregate copying) were rejected by the court. The majority view is unlikely to be revisited in the short term. In fact, should the issue return to the court, it is worth noting that the majority judges all remain on the bench, whereas the dissent has already had one retirement with another on the way.
The document also tries to downplay the effect of the Court’s decision on numerous occasions. For example, it states:
with the recent addition of “education” as a fair dealing purpose, we accept that some copying for classroom distribution now meets the first test for what can be fair dealing – subject to the very important second test of fairness.
Yet the first test only requires an appropriate purpose. With the inclusion of education in the law as one of the purposes, all copying for classroom distribution undoubtedly meets that part of the test.
What the CCI and Access Copyright Do Not Say
The document is also notable for what it does not say. The CCI and Access Copyright emphasize the 250 million copies that are copied annually, rather than the 16.9 million copies addressed by the court. Yet the evidence in the case before the Copyright Board actually found far more copying. The Access Copyright sponsored study that lies at the heart of the K-12 case that ended up in Canada’s highest court found that schools already had permission to reproduce 88% of all books, periodicals, and newspapers without even conducting a copyright analysis or turning to the Access Copyright licence.
That study, conducted by Circum Network Inc., tracked the photocopying practices at hundreds of schools across the country with full logging of all copying over two-week periods. The study found a huge amount of photocopying – the Canada-wide estimate was 14 billion copies – but the overwhelming majority have nothing to do with Access Copyright. In fact, once personal copies, unpublished copies, administrative documents, and self-produced documents were accounted for, the number of copies dropped to 4.5 billion. Most of those 4.5 billion copies were taken from books, but there was permission to reproduce nearly 4 billion of the copies without Access Copyright.
In other words, Access Copyright’s own evidence is that schools obtained permission (typically through direct licences or permission from the publishers from whom they purchased hundreds of millions in books) to cover 88% of their book, periodical, and newspaper copying. Access Copyright is simply irrelevant for the overwhelming majority of copying even before anyone conducts a fair dealing analysis.
The document also conveniently omits the Supreme Court’s emphasis on technological neutrality. For example, it states:
The Court looked only at photocopying of â€œshort excerptsâ€. It said nothing about digital delivery. And in CCH, the Court questioned whether it would have come to the same conclusions with other methods of copying and if longer excerpts were involved.
Yet the court’s discussion of alternative digital delivery models do not help Access Copyright given the new principle of technological neutrality articulated in the ESAC case:
The principle of technological neutrality requires that, absent evidence of Parliamentary intent to the contrary, we interpret the Copyright Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user. To do otherwise would effectively impose a gratuitous cost for the use of more efficient, Internet-based technologies.
The singular focus on fair dealing also omits the many additional exceptions available to education. The fact that much of the copying of short excerpts may simply be de minimis and not even require a fair dealing analysis (much less an Access Copyright licence) is not discussed, though the Copyright Board wants the collective to address the issue. Moreover, the education Internet exception, the non-commercial user generated content exception, the distance education exception, and others may all be used by education to cover some copyright uses. Indeed, these same groups warned during the C-11 process that those provisions would have the effect of granting education expansive new rights.
What is the End Game?
Leaving aside empty threats about lobbying, what is the Access Copyright end game? The document makes it clear that for all the references to “dialogue,” from its perspective the only satisfactory outcome is an Access Copyright licence. Indeed, the document states:
Canada’s copyright owners will support whatever action is needed to reinstate collective licensing in schools, colleges and universities.
Copyright law changes, the millions spent on site licenses, a diminishing repertoire, and the growth of open access publishing? All irrelevant in the eyes of Access Copyright which only wants to talk about reinstating a collective licence. If that wasn’t enough to reject calls for dialogue, there is also an effort to fabricate a fair dealing test far different from the one articulated by the Supreme Court of Canada. In the place of user rights, the document raises a series of new considerations such as “whether the copying is spontaneous and non-systematic” (irrelevant from a fair dealing perspective), “whether the copying is directed by the teacher or is mandated by a board or ministry of education” (having lost the argument on whether teacher directed copying is fair dealing (it is), Access Copyright is now shifting to the claim that board directed copying is not fair dealing), or “whether the copies are retained/reused” (another non-fair dealing factor).
The reality is that the Supreme Court and the government were both clear with respect to the emphasis on user rights, fair dealing, and new user exceptions. The CCI, Access Copyright and its allies argued these issues before the court and Parliamentary committees. They lost. The new fair dealing guidelines adopted by the Canadian education community are a modest implementation of those rules. There is no need for threats or disingenuous calls for more dialogue, but rather acceptance of the law and efforts to adapt to the new legal environment. The CCI document suggests that is still not part of the collective’s strategy for moving forward.