In recent weeks, there has been some media coverage claiming that Canadian educational materials are disappearing in the face of copyright fair dealing rules. For example, several weeks ago, Globe and Mail writer Kate Taylor wrote a column on copyright featuring the incendiary headline that “Kids Will Suffer if Canada’s Copyright Legislation Doesn’t Change.” This week, the CBC provided coverage of a writer’s conference panel with a piece titled “Copyright-free material edging out Canadian texts” that speaks of sales falling off a cliff.

These articles are the latest shots in the battle launched by Canadian publisher and writer groups against fair dealing. The campaign includes regular meetings with Members of Parliament from all parties (speak to almost any MP and they will tell you that they have heard horror stories about Canadian copyright), international letter writing campaigns, and commissioned studies that feature unsubstantiated claims about the state of licensing revenues in Canada (the PWC study comes with the caveat that “we provide no opinion, attestation or other form of assurance with respect to the results of this Assessment”).

While there have been some notable responses from people such as Meera Nair, many copyright watchers have remained largely silent, perhaps assuming that the reliance on false rhetoric will fail to find an audience. It is true that the claims have fallen flat with key independent decision makers such as the Supreme Court of Canada, the Copyright Board of Canada, and the Australian government’s Productivity Commission, but the persistent rhetoric could lead to an inaccurate view of Canadian copyright just as a review of the law is planned for 2017.

The Taylor column effectively summarizes the main claims of anti-fair dealing supporters. First, that the educational publishing business is in decline due to fair dealing practices. Second, that those fair dealing practices are the result of 2012 legislative reforms. Third, that teachers are increasingly turning to free, Internet-based alternatives to the detriment of Canadian students.

Each argument is simply wrong.

The Decline of Educational Publishing in Canada

There have been a wide range of claims about the decline of educational publishing in Canada in recent years. While some have been demonstrably false (for example, an Access Copyright lawyer reportedly told a conference earlier this year that Broadview Press cannot publish anymore, a claim vigorously denied by the publisher), the reality is that educational publishing is in decline worldwide for reasons that have little to do with copyright law.

Ariel Katz has previously debunked claims regarding Oxford University Press, which figures prominently in the Taylor column. In fact, more recent annual reports from companies such as OUP acknowledge changing market conditions around the world, with the company noting:

“the Higher Education textbook market shrank in important markets such as the UK, Canada, and the US, illustrating the contrasting array of market conditions to which OUP needed to adapt in 2014.”

Nelson Education is the largest Canadian educational publisher and its President and CEO Geoff Nordal identified the primary economic challenges in an affidavit:

In Canada, each province and territory has authority over curriculum development and education funding for the K-12 Market. Following a historic high in Canada in 2006 with respect to new curriculum development and spending, the K-12 Market contracted. The K-12 Market has been negatively affected by reduced spending on new curriculum by Canadian schools over the last five years, and in particular the spending decline in Ontario which represents the largest proportion of educational spending in Canada.

In the higher education market, Nordal focused on the following issues:

The Higher Education Market has been negatively affected by, among other things: a lack of clarity at universities with respect to ‘ancillary fees’; with certain institutions banning digital homework solutions with added fees; increased traction in the open textbook movement due in part to government funding in a number of provinces; and the use of used books, rental books and peer-to-peer sharing, impacting the demand for new textbooks at universities and colleges in Canada. The impact caused by used books and rental books is mitigated by revisions cycles and new textbook editions, the adoption of digital materials and increased use of custom and indigenous products. In addition, the Higher Education Market is in transition from traditional books to digital products, which is having a transformative effect on the business.

Nordal’s emphasis on reduced provincial spending (for K-12) and the digital shift (for higher education) is consistent with the data from other sources. The 2010 report on K-12 publishing commissioned by Canadian Heritage also pointed to the long pilot periods delaying purchasing decisions and the increased use of alternative and digital resources.

These findings are also consistent with a 2015 study that offers a far more insightful analysis on the state of book publishing than the Access Copyright commissioner PWC work. Reading the Tea Leaves was also commissioned by the industry – it was prepared for Creative BC and the Association of Book Publishers of British Columbia – but unlike the PWC study it features original research and interviews of publishers throughout the province. The study characterizes the challenge for educational publishing as follows:

Scholarly and educational publishers share some of the same issues as trade publishers, but they face other unique challenges. Tablet and other nonprint use will increase in the school systems here and abroad, changing how educational materials are bought, used and updated. Scholarly publishers and trade publishers that sell into the academic market are struggling with the impact on their sales of Open Access and fair use policies, tailored subscription services such as Scribd’s Edelweiss, used book sales, student piracy and increased library use for class reading lists.

Simply put, claims that the challenges facing scholarly publishers are primarily a function of copyright law is false.

Canadian Fair Dealing Guidelines Are Not the Result of 2012 Reforms

A consistent theme in claims about the impact of fair dealing is that there is a direct link between the addition of “education” as a fair dealing purpose in the 2012 reforms and the fair dealing practices within Canadian educational institutions. Yet the reality is that the guidelines have very little to do with the 2012 reform. First, fair dealing includes multiple purposes that can be relied upon by educational institutions, including research and private study.  The addition of education was always evolutionary rather than revolutionary. Indeed, the proof is in the Supreme Court of Canada’s fair dealing copyright decisions, which ruled against Access Copyright without the benefit of an education fair dealing purpose.

Second, the widely used fair dealing guidelines are based primarily on decisions from the Supreme Court of Canada and (now) the Copyright Board of Canada. Both have provided detailed guidance the scope of fair dealing, the appropriate test, and the applicability of insubstantial copying. Current practices have been influenced by what courts and tribunals have ruled, not what the government implemented in 2012. In fact, Canadian educators could rely far more on the 2012 reforms, including the use of Internet exception for education and the exception for non-commercial user generated content.

Third, it is important to note that Canadian fair dealing practices are not inconsistent with many jurisdictions around the world. For example, the U.S. fair use provision is clearly far broader than fair dealing with recent fair use decisions involving the legality of university copying, digitization practices, and use of APIs. Fair use can be found in other countries, some of which have practices that involve far more generous copying than Canada. For instance, copying 20% of a book is viewed as fair use in Israel, double the Canadian guideline. Most recently, the Australian Productivity Commission, a government-backed think-tank, recommended the adoption of fair use in that country.

Internet-Based Alternatives

As the B.C. study on the publishing industry notes, open access and free online alternatives do represent a business threat to the conventional publishing industry. Yet the notion that this leads to a lack of quality control is demonstrably false. First, several provinces have invested heavily in developing quality, peer-reviewed online materials that can be freely used by any school. For example, Open School BC, backed by the province, has modules in the sciences, social sciences, and languages. The B.C. Open Textbook Project has over 150 open textbooks that has saved students millions of dollars. E-learning Ontario has an online resource bank featuring thousands of resources from students from kindergarten to Grade 12. In fact, the shift to online educational resources, which offers the promise of free online materials that can be used by schools anywhere, represents a great opportunity to enhance access to Canadian-specific materials.

Second, as open access publishing grows in popularity – the European Union just announced plans to ensure that all publicly-funded scientific papers will be freely available by 2020 and Canada now has a similar open access policy in place for government-funded research – the majority of new research publications will soon be freely online and accessible to all. This too should be celebrated as it creates equality of access and better ensures that the work of researchers is made available to everyone, including teachers and students.