Last month, I traveled to Australia and New Zealand as part of a group of experts to discuss copyright fair use and fair dealing. The trip included several public talks, meetings with government officials, a book launch on Reimagining Copyright, and the chance to discuss copyright policy directly with publishers, educators, and librarians. Videos of some of the panels are available online, including a New Zealand forum on copyright and innovation and a panel on comparative copyright limitations and exceptions at the Australian Digital Alliance annual conference.
Among the most notable aspects of the trip was the revelation of efforts by publishers and copyright collectives to mislead policy makers on the state of copyright law in Canada. While not everyone is buying it – this keynote from the Australian Productivity Commission’s Deputy Chair Karen Chester was a mic drop moment that eviscerated the publisher arguments against fair use – the efforts to mislead on the impact of Canadian copyright reform was unmistakable. For example, at one event with many publishers in the audience, I was approached by one representative who told me she was embarrassed by what her company had submitted to the Australian policy process after learning about the reality of the situation in Canada. Similarly, another Australian publisher executive who had spent years with one of Canada’s largest educational publishers, openly acknowledged that fair use and fair dealing had little to do with the challenges faced by the industry.
During many of the talks and the discussions that followed, it was striking how few people were aware that paid access remains the primary source of materials in Canada, that educational copyright policies in Canada were primarily a function of court decisions not copyright reform (the emphasis on fair dealing came before the 2012 reforms), that global publishers were reporting marketplace challenges that have nothing to do with copyright, that Canadian publishers that supposedly stopped publishing were still in business, that court affidavits from Canadian publishers focus on many concerns other than copyright, and that a study from one Canadian publisher association highlighted issues such as open access and used book sales.
Notwithstanding the facts, the scare tactics will no doubt continue. Last week, the International Authors Forum put out a release that inaccurately claimed that Canadian educational policies were based on a “one word expansion” of fair dealing and tried to link Concordia’s copyright error with fair dealing despite the fact that everyone agreed it was infringement and the university has a collective licence. These efforts make it crucial that government pursue balanced policies based on fact, not fiction. In Australia, that should mean adoption of a fair use provision after years of debate and multiple independent studies confirming its value. In Canada, the 2017 review process should focus on issues such as notice-and-notice reform, Copyright Board changes, restrictive digital lock rules and fixing the fair dealing gap, and the removal of unnecessary barriers to innovation and copyright fairness by shifting from fair dealing to a fair use approach.