Wednesday, July 14, 2010

reader and writer go to school

Since the government introduced Bill C-32 (An Act to Amend the Copyright Act), much attention has been paid to the anti-circumvention protections offered to technical protection measures (TPM). TPMs affect both writers and readers of digital literary content, which is why those two parts of my own personality have already had a long discussion about them (here, here and here).

But what of the other new provisions in the proposed Bill C-32? One new detail in the bill that has been getting a little less attention from commentators, both official and self-appointed, is the new educational exception, the guiding principle of which, I believe, is stated in the following passage:

29.4 (1) It is not an infringement of copyright for an educational institution or a person acting under its authority for the purposes of education or training on its premises to reproduce a work, or do any other necessary act, in order to display it.

There follows, in C-32, a number of new paragraphs detailing many and various controls on this educational exception, including the possibility of a rightsholder explicitly restricting educational use through a notice or a TPM. It's complicated, but there is a disturbing new bottom line for creators... many of whom are students as well.

My writer and reader hash it out a bit:

Reader - Good news -- I'm going back to school to finally get that PhD. I've been putting it off forever because of the rapidly increasing costs associated with education; but it looks now like at least one of those costs will be going down.

Writer - That DOES sound like good news. Which cost is going down? Parking on campus?

Reader - No, not parking.

Writer - Oh, is it the service fees for the library and athletics and stuff?

Reader - Uh, no, those costs are still there.

Writer - Don't tell me it's tuition. Are they dropping tuition fees?

Reader - Actually, I think tuition might be going up.

Writer - Well, I'm guessing the professors still want to be paid...

Reader - Yeah, I think they have a pretty strong union making sure of that. No, it's the materials... educational material costs are about to go way down.

Writer -... wow, you mean universities are now going to subsidize the costs of textbooks and stuff for you? That would be amazing because you can rack up a big bill on textbooks.

Reader - Actually, there's no need to subsidize the materials -- the government is going to make sure everything on the Internet can be used for free, and it even looks like universities can photocopy stuff without infringing copyright now.

Writer - So, wait, you mean if a professor wanted to teach my book, The Uninvited Guest (still in print and for sale through my publisher at good independent bookstores and through online services) to a couple hundred students, those students would not have to buy my book?

Reader - Nope, the school could buy one copy, and either photocopy or scan it and then make it available to students as "educational material." Just think, over a decade or so thousands of university and even high school students would save twenty bucks each, and would still be able to read your book. It's a win/win. Cheaper education for me, larger readership for you.

Writer - One small problem.

Reader - What's that now?

Writer - If I can't make money from my writing, you can't go back to school... no matter how much you are saving on materials.

Reader - But we've just shown how this new system will increase your readership by thousands.

Writer - Thousands of people who are not paying to own my book. That's not a very sustainable business model from my perspective.

Reader - I see your point, but you know this change in the copyright law is really meant to address the difficulty educators have in accessing works for their students.

Writer - Well, I can't speak for others, but there's nothing inaccessible about my writing. As I mentioned above, I'm still in print, and there are numerous ways to legally purchase my work.

Reader - True enough -- but, what if a prof doesn't need her students to read your whole book? What if she just wants them to read a couple pages, as a sample of fine Canadian fiction? In the past, that prof could never be sure how much she could legally use, and whether or not it was okay to photocopy it.

Writer - Actually, that's not strictly accurate. Professors and teachers have been able to work in complete confidence with regards to photocopied material for a couple of decades or more, thanks to the educational licensing efforts of Access Copyright.

Reader - Access who?

Writer - Access Copyright, the Canadian Copyright Licensing Agency. A university just talks it over with AC, they come to an agreement on the amount of photocopying being done at the university, and pay for an appropriately-sized licence. Once they do that, professors and students are free to photocopy whatever they need. AC licences even cover those photocopied coursepacks professors love so much.

Reader - So, the universities pay money to Access Copyright when they photocopy your book? How does that help you?

Writer - It helps me because I AM Access Copyright. AC is a collective society made up of artists and publishers. The money collected through usage licensing is distributed fairly to the AC membership. You see, there is a completely fair, accessible and seamless process in place for educational use of copies.

Why would we change our copyright law now and destroy that process?

Reader - Well, like I said, it will make education cheaper.

Writer - I don't know, Reader, at a potential loss of thousands of sales, this great new education you're getting is looking pretty expensive to me. Are there any plans to change the laws around tuition fees and professor salaries as well?

Reader - Hmmmm, C-32 makes no mention of those things.

Writer - I've got an idea. Since we're just going to be using copies in education from now on, how about we copy the lesson plans from one year and just repeat them every year from now on? Better yet, let's get the profs to deliver one lecture, videotape it, put it up on YouTube, and just be done with the whole expectation that students attend classes.

Reader - Won't that, sort of, cheapen the whole concept of higher education.

Writer - Isn't cheapening what we're going for here?

UPDATE: The Toronto Star has published a related op-ed discussing C-32's educational exceptions.

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Anonymous said...

Sounds to me that you believe in protectionist copyright rackets. This is the same kind of thing that tries to shake down coffee houses that have open mike nights.

Instead of going after the infringer (like a performer) you go after an institution (like a coffeehouse).

Why not go after Chapters and Starbucks for potentially earning money off of your books by allowing people to read and/or sip lattes. It's your book that is bringing them in, that latte wouldn't be sold without it right? Why aren't you getting a cut of that sweet whipped monstrosity of a latte?

I don't believe educational institutions deserve exemptions for copyright, nor do I believe that copyright rackets should be paid a single cent. Track what is copied, charge for that. You shouldn't profit when people aren't using your work.

Pieter Hulshoff said...

I don't know John, but as far as I read that article it just allows them to display the copy, not to distribute it to every student. This is just so they can put up a copy on the projector or screen in order to help in the educational program, not to give every student a copy of your book. You seem to skip over the parts that read "on its premises" and "in order to display it". As far as I read that article, they still need to pay your AC if they want to distribute copies to their students.

John said...

Hi Pieter,

Nice to hear from you again.

I like your interpretation of the clause. Unfortunately, as it stands now there are tens of millions of dollars to creators per year depending on "interpretation."

That's an important revenue stream, especially considering its encouragement effect on Canadian content in the school system. But more important than the revenue stream, in my opinion, is the principle of compensation for use. Everyone else in the education stream is paid for their work. It would be a terrible precedent if we started to expect only artists to work for free for the sake of education.

I don't think I need to respond to the anonymous comment. Its intolerance of creator compensation speaks for itself.

Anonymous said...

John you don't deserve a single dollar you didn't earn. If people don't use your materials you don't deserve compensation because they used the works of others.

Anonymous said...

Wow Mr. Degen I think you ought to go and read about fair dealing. Section 29 is about Fair Dealing and fair dealing is definitely not what you think it is.

Maybe be a good author and go READ what it is about. Typing "fair dealing canada" into google will illuminate you further. You see fair dealing is a legal concept that exists within the commonwealth. In America they don't have fair dealing they have fair use but the purpose is similar.

Maybe if you were informed about the issue about how fair dealing doesn't allow someone to take all of your work you wouldn't have written this ill-informed blog post.

Essentially fair dealing is defined EXTERNALLY to the Canadian copyright legislation. But you would've known it had you googled what it is or even carefully read the copyright act you quoted.

How about this, you go educate yourself about fair dealing and its legal definition (which is rather loose) and then you write up a blog post about how you were ignorant to what fair dealing is.

From the blog post it is very obvious you are unaware of boundaries of fair dealing.

John said...

It's hard to keep track of which anonymous person I'm responding to.

My understanding is that Access Copyright works very hard to track usage and to distribute on the principle of payment for actual use. I'm sure there are ways they could get even better at that, though they would require the cooperation of educational institutions.

As to fair dealing... I am well aware of it, and support the concept. I exercise fair dealing on this blog all the time.

That said, I worry about expansions to fair dealing that would attack the principle of compensation for use. Too broad a fair dealing would destroy existing, reasonable revenue opportunities for professional creators. That's why the exception wording around education must be amended in C-32.

Pieter Hulshoff said...

Dear John,

Nice to know my comments are appreciated here for a change. ;) I think these articles shouldn't be left open to interpretation though. If this article is unclear, its intentions should be made clear by the politicians. I agree with you that it would not be fair to authors to allow full book copying for students without compensation like via AC.

Anonymous said...

Are you the same John Degen who used to live in Devins Drive?

If you are, we used to be friends.
Get in touch. It'd be good to hear from you.

Kathy Page said...

Thank you John, I think you have nailed it.

Noah Stewart said...


After reading this post, I can't help but feel like you lack a thorough enough understanding of copyright law to level the critique that you do. This is made abundantly clear by the fact that in assailing the extension of fair dealing to include education in C-32, you quote the wrong section of the bill.

Section 29.4, which you quote, is simply an update to the current legislation, designed to make the passage technologically neutral (the Act currently references dry erase boards, flip charts and overhead projectors).

The section that you are ostensibly concerned with is 29, which reads as follows:

29. Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.

The parts in bold are the additions, proposed by C-32.

The issue that you seem to be concerned about is not, what categories of use can constitute fair dealing, but rather what makes the dealing "fair". While C-32 does propose a modest expansion of the definition of fair dealing, to as you point out, include education, it does not propose any legislative shift in the test that must be applied to determine if a use is fair.

Rather, the test that will continue to be applied is what was set by the Supreme Court in the CCH decision. Reading that decision it is clear that a teacher could not photocopy an entire book and hand it out to his/her class. In fact, an important part of the test is the "effect of the use on the work". If in fact, the educational use would cause thousands to read your book without providing payment or receiving authorisation, then it would not be considered fair.

As I hope you can now see, there is no need for you to be considered. C-32 will not cause the sky to fall, nor will it mean that anyone in an educational setting can do anything they want with a copyrighted work.

John said...

Hi Noah,

Thanks for your comment. I am aware of the test for fair dealing and the CCH decision. My concern is not that education is now explicitly included in fair dealing, since I have always considered it to be. My concern is how new mentions of education in the Act will be interpreted.

On other postings and other comment threads (specifically on Michael Geist's blog) you can find plenty of folks interpreting educational use very broadly, while at the same time attacking the validity of existing collective licenses and proposed new licenses.