Fair use SXSW 2014-.jpg by Anna Hanks (CC BY 2.0) https://flic.kr/p/q6nZyV

Fair use SXSW 2014-.jpg by Anna Hanks (CC BY 2.0) https://flic.kr/p/q6nZyV


Scare Tactics Down Under: The Ongoing Global Effort to Mislead on Canadian Copyright

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.


  1. The usual misinformation from Michael Geist. It’s really quite shameful, and shameless.

    Again, everything is conflated into one thing, money being spent on educational resources. But the money spent on library acquisitions – and have you noticed the price of a hardcover monograph in the humanities lately? It’s $80 – $125 US – DOES NOT GO INTO THE POCKETS OF INDEPENDENT CANADIAN CREATORS. Have I said this loud enough for you Michael Geist? Those creators rely on the pittance they receive from classroom coursepack copying permissions and licences. The other monies are going to large, mostly American, publishing corporations.

    Again too, no one can explain: how education and students survived until 2012 without the current “fair dealing” practices and how copying and selling my work without pay is not selling my work without pay.

    Geist is right about one thing though: the money lost through fair dealing is a pittance compared to what is being spent by all parties on education (government support for institutions, library acquisitions, student tuition, student textbook costs, etc etc). All the more reason why coursepack copying of the work of independent Canadian creators has, to turn Geist’s argument around, virtually no impact on the cost of education for students, or governments, or university administrations. It is however the only source of income, beyond selling a few hundred copies of one’s book for little or no royalties, for independent Canadian creators.

    It makes no sense for the anti-copyright libertarians to be chasing after this pittance when much bigger fish are eating up much bigger pieces of the money spent on education in Canada, much of it siphoned offshore to foreign publishers. The cost of one digital subscription to an Elsevier science journal is equal to the annual licensing payout for who knows how many independent Canadian creators. But go ahead, continue to fire away at the wrong target folks.

    • Dude, what’s your problem?

      Publishers are the problem, monopolist intent on maximizing their revenue, costs to the public and compensation to creators be damned.

      Michael Geist is just one of many people fighting for fairer copyright, one where individuals are rewarded for their creations and one where corporations do not control all culture.

      A less charitable pirate would tell you to cry more. But crying solves nothing. No, my fellow commenter, I ask that you help in ensuring creators get their fair share. You can do so by joining the Pirate Party of Canada. You can also support Canadian culture by preserving works via Distributed Proofreaders Canada.


      • Uh, the so-called “fair dealing” uses Geist advocates – and especially the move to “fair use” he advocates, has had the effect of taking money out of the pockets of individual creators. Like me.

        But that’s OK, I didn’t expect anything coherent from anyone suggesting I join the Pirate Party to protect my interests as a freelance writer relying on copyright for my livelihood, which is no different that Geist relying on his membership in the Bar or professors on their Ph.D.s or electricians on their trade certifications to protect their market and sources of income. It’s just a different form of guild and income safeguard, one that privileged people, and pirates, are attacking.

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