The Standing Committee on Industry, Science and Technology starts its year-long review of copyright today with the first of several hearings focused on copyright, education and fair dealing. The hearings begin with evidence from education groups to be followed by publishers and other rights holder representatives (sources indicate that Access Copyright declined an invitation but will presumably return at a later date). The Association of Canadian Publishers, the leading national publisher lobby, has been one of the most vocal groups on copyright and will likely appear to tell MPs that fair dealing should be narrowed.
While the ACP has not hesitated to speak out at industry events, it interestingly has said nothing about a study it commissioned on digital trends and initiatives in education in Canada. The ACP study, which received financial support from the Government of Canada and the Ontario Media Development Corporation, is not posted on the publicly available portion of its website. There was no press release when it was released last June and I can find no public reference to it anywhere on the site. Jean Dryden pointed out to me that the study is available through the OMDC.
The ACP’s effort to bury its own study is unsurprising once you read it. The ACP commissioned it “to better understand the digital trends and initiatives in education and how these trends and initiatives are impacting the acquisition and use of Canadian content in the K–12 and post-secondary sectors.” After months of interviews, roundtables, and consultations with teachers, institutions, and publishers, the 70 page report identified many trends and issues, but copyright is not among them. In fact, despite the ACP’s insistence in lobbying efforts that copyright is at the heart of publisher concerns, copyright and fair dealing are limited to a single reference with no discussion or analysis. Instead, the ACP’s study confirms much of what the education community has been saying, namely that the combination of open educational resources and paid access is driving the educational shift to digital, not fair dealing.
The ACP study examines the availability of open educational resources, describing it as an emerging cornerstone of the educational system:
The OER movement continues to grow and is becoming a cornerstone of the Canadian K–12 educational system. The proliferation of OER content is evident across the country and there are numerous initiatives that support the development, access, and distribution of content.
The study notes that OERs form part of the key sources of materials for education:
While the use of digital content is increasing, print-based resources continue to be widely used in Canadian classrooms to support and enhance learning. The shift from print to digital resource use varies from province-to-province, district-to-district, school-to-school, and classroom-to-classroom. Some jurisdictions and schools continue to purchase print-based supplementary resources and some are acquiring core curriculum resources that include digital components. Others are shifting from print-based textbooks to eTextbooks. Some are purchasing very few resources, making do with what they have until funding for new resources is available and/or the technology and technical infrastructure is in place. Meanwhile, teachers and students have access to more free and open content than ever before given the ubiquity of content via the Internet, as well as the proliferation of content repositories, databases, portals, and applications.
In a review of sources of materials, there is no reference to fair dealing or copyright. However, there are numerous references commonly licensed or free digital content collections or databases, none of which implicate Access Copyright or its licence.
The ACP study acknowledges the huge investment by education groups in digital products offered by publishers:
Digital supplements as well as eBooks available from the major educational publishers have pushed digital sales to more than 50% of their educational revenue. Pearson reports that digital products now account for more than 50% of their revenue and McGraw-Hill announced that digital unit sales overtook print unit sales in its U.S. Higher Education Group in 2015. Although eBooks are the cornerstone of publishers’ digital offerings, digital courseware such as assessment and testing software and homework or study guides are becoming more popular with instructors and students.
The report emphasizes the importance of Canadian content by highlighting the many sources of content with no reference or concern with copyright law given the paid and openly licensed sources:
It was abundantly clear from everyone we interviewed throughout our research that Canadian content is considered to be a critically important component in the delivery of education across all levels from K–12 to post-secondary. However, reduced spending on educational resources, the transition from print to digital resources, the ubiquitous nature of content available from the Internet, and a lack of clear policy on the use of Canadian content (particularly in K–12) has shown a diminished use of Canadian resources licensed or purchased from Canadian publishers for use in schools.
The report provides several recommendations, none of which involve copyright reform. The study is a good one, based on dozens of interviews and a thorough canvassing of the sources of materials in Canadian schools. While the ACP regularly cites copyright as a key issue, its own study – that it has not even posted on its publicly available portion of its site – is far more consistent with the views of the education community, which is spending record amounts on digital materials and making increasing use of the wide range of openly licensed works.
I don’t know whether or how much the big publishers are hurting from so-called “fair dealing.” But I do know that authors are getting creamed. The average income of a writer in Canada is about $15,000 (that’s one month’s salary for Michael Geist). In the humanities and social sciences (I don’t know about other fields) a book may sell enough copies to keep a publisher afloat – because they have block grants from the arts councils – but it certainly doesn’t pay enough to make it worthwhile to write the book. It simply doesn’t. This is not the United States, with a domestic market of 350 million people and a huge export market. Do the math: 1,000 copies of a $25 paperback retail, 50% goes back to the publisher, a tiny fraction of that goes to the author. Maybe they also got a $10,000 arts council grant. Maybe. How long can you live on $10,000? Enough to research and write a book? For decades until just a few years ago the authors of these books earned secondary revenue from course packs – based on the tried and true principles and system of user pay, only the books used in courses are rewarded, if a book is good enough for a well-paid professor to teach then it’s good enough for the much more disadvantaged AUTHOR of that book to get something in return beyond paltry publisher royalties. And what exactly is the rational for this? Some mumbo jumbo about “educational fair dealing.” Fair is getting paid for your work and paying for something that benefits you. Students still pay for books, but curricula is overwhelmingly shifting to course packs, and students are increasingly paying nothing for that content. It is manifestly unfair, an end run around long-established principles and practices that worked for generations. It’s some sort of obsession by the knowledge should be free crowd. You don’t think there are larger issues threatening education today? Corporate funding of research is one. How is it exactly that paying pennies a page, the way students always did, is going to, I don’t know what, drive students from school, turn the country’s schools and universities into some sort of neo-liberal corporate privatization of education? It’s your next-door neighbour the schmuck book author who’s being hurt by so-called fair dealing. The right-wing libertarian Geist should be ashamed of himself for all the misinformation on this topic he spouts while pulling down a huge public salary as a public policy expert while only parroting the Electronic Frontier Foundation line.
The answer to this conundrum of “why this irrational obsession with fair dealing?” on the part of Geist and his followers is twofold: in a general sense, it offends their Internet-age libertarian sensibilities, that you can’t just call up what you want for free and have to be bothered asking permission when the technology is there to just take what you want — and Geist is heavily invested in this ideology, that of the Electronic Freedom Foundation, his mentor Lawrence Liang, etc.; the second reason, tied to this, is tactical: “fair dealing” is the thin edge of the wedge. The ideal is complete piracy. But for the time being that’s still a hard sell in Canada, at least if you’re appearing before parliamentary committees (although we’ve seen in practice, for example the Concordia University pirating scandal of last year, and the length to which Geist went to whitewash the affair, how much this book piracy is gaining ground). Once you start calling any use of printed material “educational” (sounds pretty tautological to me) and “private research” (yup, scanned and printed in hundreds of copies each semester, or better yet posted on a university server) then anything is possible. And it is this “anything” that Geist, Liang etc want.
If writing a textbook doesn’t pay enough to live on, don’t write textbooks – go do something else instead. I’d love to make a living playing boardgames, but there’s not a big enough market for it, so I can’t (although there are a few people who seem to be able to make it work).
There’s never been a “right to earn a living doing whatever you want to”.
There is a market for it. People just want it free. Until “fair dealing” came along, it was possible to get by.
And when we all go do something else, the quality of education will suffer. In fact the pennies a page source of good readings is the biggest bargain in the education system. A hell of a lot cheaper than tenured professors earning a quarter million to spend 6 or 8 hours a week in a classroom.
Think about all the money in the education system – the teachers, the administrators, the support staff, the real estate, the upkeep, the research – the paid sabbaticals – the libraries, and on and on and on and on. And you people want to take money from Canadian authors in the name of some absurd “knowledge should be free” ideology? Which will save how much exactly? $200 per year per student? (Savings the administrations are using as a pretext to jack up their “administration fees.” What else about a university education is free? It’s like some sort of virus, like saying “We’re going to fix the government deficit. Yup, we’re going to make people who chew bubblegum pay twice as much! You’ll see how that will transform the world, trust me.” Because what exactly does this accomplish, really? Convenience for well-paid professors not to have to clear the use of work by poorly paid authors, Bravo, that’s quite a revolutionary program you’ve got there. What’s next, free tuition for corporate CEOs?
“There is a market for it. People just want it free” – that’s a complete contradiction. Either people are willing to pay for it, in which case there’s a market, or people only want it free, in which case there isn’t.
Nobody’s *taking* money from you – there’s just more competition from things like open courseware. You can choose to compete with them or not. Just like hotels trying to compete with Airbnb, record stores trying to compete with iTunes and bookstores trying to compete with Amazon.
You have no right to continue being paid by people who used to pay you. Things change. Some markets disappear altogether. Business models have to evolve. Sitting there demanding that the sea turn around is not likely to be a successful strategy.
Fair dealing has nothing to do with wanting knowledge to be free. For starters, the free software movement and the Internet only date back to the mid 1980s, whereas fair dealing dates back to the 1700s, before the first Canadian Copyright Act.
“Give me taxpayer dollars so I can keep making a living doing what I want” is not a very strong argument.
Your arguments are really quite asinine, you know. You want to play board games for a living, but no one is paying you to, so you can’t, and that’s exactly equivalent to wanting to write university textbooks for a living. Except people did pay for this until very recently, and for a good reason: it’s labour performed in the service of a social need. And labour generally needs to be remunerated in order for it to keep being performed. If your boss said to you today “Chris, you can keep doing your job if you like, but I’m not paying you anymore,” you’d have the same choices I now have. You’d probably take your own advice and walk. But then your boss would have a problem: how to replace you? Putting an ad in the paper saying “full-time employee wanted; no pay” probably wouldn’t be too successful. All the fair-dealing lobby has done in order to avoid this dilemma is to go to a court and get a dubious ruling, currently contested by other courts, among other things, stating that the manufacture of what are essentially repackaged books of my work should be done without payment to me in the name of “education” – something no other player in the education system is being asked to submit to. (You think professors would agree to develop on online course intended to replace them and not be paid?)
And no, wrong again, authors are not saying “give me taxpayer dollars,” as I pointed out this is an entirely fair user-pay system, paying only for what is used (Geist, for example, has a hare-brained solution to all this: everyone who claims to be an author should receive a grant to write, and then make it all free. Right.)
It’s not a question of business models changing. The model is the same. Students need reading materials. Without these materials there would be no education system. They continue to get them in exactly the same manner, in fact they are, in my case and that of many others, the exact same materials. They’ve just stopped paying for them, aided and abetted by fat cat university administrators and comfy professors and librarians. And in the grand scheme of things there is precious little justification for it. The previous system worked fine, the cost was not an obstacle to an education, no benefit other than a savings of a couple of hundred dollars a year per student are being realized, etc. etc.
Fair dealing isn’t going away. And most creators and publishers have no problem with fair dealing. Where views diverge sharply, though, is over what it’s come to mean. Till about 20 years ago, there was broad agreement that making single copies of small amounts of published content was fair. And the library exceptions that had been enacted shortly before that clarified this approach, by specifically allowing librarians to make these copies for library patrons. The CCH decision upended this consensus. It expanded the scope of fair dealing by applying it to for-profit uses, stated that fair dealing was a user right, and gave the OK to high-volume multiple copying. Other countries, especially the UK from which the Canadian Copyright Act derived, took a different approach, and left private uses and multiple copying outside fair dealing. But in CCH and then later in the Alberta v Access Copyright decision, the Supreme Court hijacked what Parliament had intended by interpreting the clear words of the legislation so as (according to one of the judges) to strip certain words of their meaning. This was followed soon after by Parliament including “education” as a fair dealing purpose (probably not necessary given how the SCC had defined “private study”) but with a clear statement by the Industry and Heritage Departments that this change would merely clarify existing law and would not (according to several departmental backgrounders) interfere with licensing arrangements administered by Access Copyright and Copibec. Next up was the decision by CMEC and the AUCC that licences were no longer needed. We now have a situation where education institutions in Canada aren’t licensed, and where fair dealing (on top of “insubstantial” copying) is viewed as permitting large portions of commercially published works to be copied, in bulk. There are legitimate issues for debate here, not least around how educational and scholarly content is produced and funded. And, as Geist has observed, some of what is published is purchased on terms that permit subsequent redistribution. Not all of it, though, especially textbooks which become increasingly expensive as sales decline because of selective copying. Perhaps, if faculty and classroom teachers produce their own their own materials, this will one day cease to matter. In the meantime it’s in no-one’s interests if there’s a declining supply of ever more expensive publications. As George notes, it’s strange that there is such opposition to paying for content when no other component of education is free.
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