the phantom compromise

Last week, I posted about the continued nastiness of the attack against professional creators and their representative groups, associations and collectives by certain consumer advocates. I pointed readers to crusading journalist Jesse Brown's interview with consumer advocate Michael Geist, how they dismissed creators speaking out on copyright as the "spokespuppets" of "big media" and their "astroturfing" groups, and how both Geist and Brown agree that two time Governor General Award winner Nino Ricci published "lies" and "propaganda" when he expressed his personal concerns about potential damage to collective licencing under C-32.

None of this should be a surprise to anyone who has followed the Canadian copyfight even over the last year. Me, I've been personally involved in defending creator copyright much longer than a year. I've been watching the dismissal of creator concerns, the snide labeling of professional creators as elitists, and the outright attacks on genuine creator concerns escalate for a decade now. And so it's reached this point, where a prominent professor and a prominent journalist can tweet that Nino Ricci is a liar - not that he's incorrect about something; not that he might be expressing a bias for his own concerns over others'; no, that he writes lies and propaganda.

Lies and propaganda?

In my earlier posting I also noted the strange concurrence of this latest vicious swipe at professional creation and Michael Geist's sudden desire to seek "compromise" as the special C-32 parliamentary committee goes about considering amendments before what now looks to be the inevitable passage of the bill. My understanding of compromise involves good faith on both sides, and considering how creators are being treated in these final stages of C-32 discussion, I'm just not feeling the goodness.

Educational Fair Dealing

In a posting to his blog on August 24th, entitled Writers Groups Attack Fair Dealing Reform in Copyright Bill, Professor Geist implied that writers groups "are against fairness and balance in copyright." He dismissed the concerns of a coalition of writer groups representing thousands of professional creators in this country, and their request for clear legislative guidance within the bill as "fearmongering." Those are not exactly the kind of accusations one would expect from someone seeking compromise. Geist has repeated this attack just today, calling a recent brief by the writers' coalition "misleading and inaccurate."

As I understand them, the writers coalition concerns about an educational fair dealing category focus on a request for clarity to avoid unintended consequences and litigation required to define the territory of "fair." These are, I think, also Mr. Ricci's concerns. Writers want to make sure that including education as a fair dealing category without specific definition will not drive education from established collective licensing on the belief that much if not all of their content uses would be considered fair. Professor Geist's suggested "compromise" on this issue seems to indicate such fears are unwarranted. In fact, in today's attack on writers groups, the professor insists that fears of broad interpretation of the fair dealing category are false.

Why would writers be worrying about their collective licences?

Over five years ago, in August 2005, Professor Geist published a column titled The Coming Battle Over Education and Copyright, in which he advised the federal government to "prod Canada's universities to adopt a more aggressive approach in the use of copyrighted works." According to the 2005 version of Dr. Geist:

"Today Canadian universities spend millions in copyright licenses that are arguably unnecessary. This expenditure effectively represents a subsidy to Canadian publishers from taxpayers as well as from students who are facing escalating tuition fees at a time that they can scarcely cover their monthly rent."

"Rather than focusing on their rights, Canadian universities rely heavily on guidelines from Access Copyright and Copibec, the copyright collectives that are the direct beneficiaries of the questionable university copyright licenses."

And most importantly for this discussion, he suggests universities should:

"highlight fair dealing, the staple provision that provides students and educators with broad rights to use copyrighted works."

Of course, the 2010 version of Michael Geist is also openly campaigning against Access Copyright licencing in universities, but he's changed tack and is now suggesting the licences are invalid because of skyrocketing prices (an unsupported claim) and a loss of value within the licence (a second unsupported claim).

Strangely, in 2010, we do not hear from Geist that fair dealing will provide broad rights for educational use; we hear assurances of the opposite. The six-part fairness test exists, and should assure writers and other creators that their rights will be respected (as long as we can afford to sue for them).

And those are strange assurances indeed, considering what others on the user rights side (a side informed by Geist's incessant campaigning against established professional creators) have been saying.

In an official objection to the K-12 Access Copyright tariff, the provincial ministers of education expressed the belief that:

"most, if not all, photocopying in schools is fair dealing."

This opinion is clearly shared by the Canadian Federation of Students who published a membership advisory for all members (post-sec students across the country). In it, they describe the educational fair dealing category as a specific "exemption," that would"

"allow for the use of copyrighted articles in course packs and other educational materials as fair dealing."

This would, the students tell themselves:

"dramatically reduce the cost of educational materials, in some cases by as much as 80%."

Most revealing, I think is the government's own wording around introduction of the educational category. On the website introducing the bill, they say that extending fair dealing to include education:

"will reduce administrative and financial costs for users of copyrighted materials that enrich the educational environment."

But, crucially, they also say:

"The new bill enables the use of copyrighted materials for the purpose of education, provided the use is "fair" (i.e., it does not harm the market for a work)."

I think we will see through committee discussion and various amendment suggestions that a reduction of costs (in some cases by 80%?) that doesn't harm an existing market for a work is a phantom compromise. It bears repeating that a copyright licence (at 2010 pricing, including all digital uses) for all of Canada's post-secondary institutions represents less than 1% of just one university's budget. If education is increasingly expensive, it is not the creators of educational materials, nor their copyright collectives, that are making it so.

Let's be absolutely clear about what's going on here -- writers and other creators fear for their rights under an expanded and ill-defined fair dealing because the loudest user rights voices, led by Michael Geist, have convinced us we should be fearful. Is it any wonder when Professor Geist offers a compromise, writers reach for their pockets to make sure nothing's gone missing?