The misleading claims on fair dealing extend beyond the impact of the 2012 reforms and the wildly exaggerated claim of 600 million uncompensated copies each year. Given that educational institutions have increased their licensing spending since 2012, Access Copyright has sought to downplay the investment at the copyright review by arguing that site licensing is primarily focused on access to journals while copying for coursepacks predominantly involves excerpts from books. The implication of the Access Copyright argument is that book copying remains as relevant as ever and that site licensing does not cover that form of copying. These arguments are misleading, however, since the data suggests that book copying is rapidly declining as part of coursepacks, coursepacks themselves represent a small percentage of course materials, and books are in any event an increasingly large part of university site licensing. Posts over the next three days will address each of these issues.

Given the reality that a shift away from book copying decreases the relevance and value of the Access Copyright licence, the copyright collective has tried to convince MPs on the copyright review that books remain the primary source of materials for coursepacks. For example, Roanie Levy, Access Copyright’s President and CEO, told the committee:

The content that is copied historically under the Access Copyright licence, today under their fair dealing guidelines, is mostly books, not journals. This is content that is created by professional authors who rely on royalties for compensation. It is not content that is licensed, by and large, through the library licences.

Later in the same hearing, Levy reiterated the same point in an answer to a question from NDP MP Brian Masse:

Like what Frédérique mentioned about the experience in Quebec, and in the rest of Canada as well, what we saw historically was that, of the copies that they used to make and report to us, only about 15% was from STM, science, technical, and medical journals. The rest was books, and that doesn’t tend to be licensed through university libraries.

The key word in both responses is “historically.” While it may have been true that books once comprised 80 per cent or more of copying in print coursepacks, the data today indicates that books are a far smaller part of overall copying (as will be discussed later this week, the data also indicates that books are a significant part of site licensing).

For example, Access Copyright commissioned a study on copying practices at Canadian colleges as part of its ongoing case at the Copyright Board of Canada on post-secondary copying practices (Document AC-4). The 2012 study included colleges and polytechnic universities from across the country, arriving at the following breakdown by genre:

The study data, weighted to the population of 62 colleges and to a year of activity, indicate that 287 million exposures were compensable. Of those, roughly one third were from books (34.6%), one third from journal articles (32.8%), and one third from newspaper articles (29.8%).

Books only comprise a little over one-third of the copies, far below the Access Copyright claims. In fact, the roughly even split among books, journal articles, and newspaper articles in 2012 likely  overstates the role of books today.  The study also considered whether the copies were digital or electronic. Digital uses comprised 53.4 per cent in 2012 with print uses only 18.7 per cent. This is relevant since journal articles were 60.2 per cent of postings on learning management systems (LMS) compared with 36.3 per cent for books. In other words, as course materials become predominantly digital, there is also a change in the materials used that involves a shift from books to journals and links to third party content. As Access Copyright acknowledges, journal articles are often licensed by universities. The chart from Circum, which conducted the study for Access Copyright, tells the story (Document AC-43):

The declining importance of books for course materials was also found in a study at York University as part of the fair dealing litigation at the university. Much like the colleges study, the majority of materials in printed coursepacks were copies from books. However, a study of materials on learning management systems from 2011 to 2013 once again found the diminishing use of books and corresponding increasing use of journals. The study found that 58 per cent of the copies in the sample were books and 37 per cent were journal articles. While a higher book percentage than colleges, the trend is similar with a growing shift away from books as course materials as the delivery of course materials moves online.

The York study is consistent with data provided by several Canadian universities during the copyright review. For example, UBC advised the committee that books are increasingly being placed in storage and not copied at all:

The other thing is the circulation. Our books are being used less. Indeed, many of our books are being put into a storage facility, where they are safely not being copied.

Meanwhile, the University of Lethbridge conducted a study of materials contained in its learning management systems. It found that only 98.3 per cent of the materials did not involve collective licensing. Ryerson University provided similar figures to the committee, noting

More than 80% to 90% of the content we make over to our students in e-reserve is covered through licences for digital materials, links to legally posted publicly available materials and open access content.

The wider range of materials in learning management systems was a point of emphasis by the University of Guelph, which told the committee:

Students at the university access course readings in a variety of ways: they purchase textbooks from the university bookstore; they access materials placed on reserve in the learning management system, including 54% through direct 
links from licenced materials, 24% open and free Internet content, 6% via transactional licences, with the remaining 16% under fair dealing.

The change in source of materials also has enormous implications for the payments to authors by Access Copyright. Access Copyright’s Payback system, which provides royalties to all writer affiliates, excludes all digital works. In terms of eligibility, its rules exclude “blogs, websites, e‐books, online articles and other similar publications. Only print editions can be claimed.” Moreover, the Payback system also excludes all works that are more than 20 years old on the grounds that they are rarely copied.

The data – taken directly from Access Copyright commissioned studies – is unequivocal. It isn’t fair dealing that has driven changing copyright practices since 2012. Rather, the shift to digital is fundamentally changing how students access materials as well as the source of those materials. The Access Copyright licence derived much of its value from copying portions of books into coursepacks, a practice that has dramatically declined with the broader move toward digital delivery of educational materials.