It was undoubtedly a very enlightening afternoon for many on the committee who, to that point, might have been excused for thinking Michael Geist's views stand unchallenged. Neither Giuseppina D'Agostino nor Barry Sookman have anywhere near the access to popular media that Dr. Geist does, but a Parliamentary committee room is a remarkably equalizing forum, especially when MPs ask questions in good faith and demand good faith answers.
So it was that Dr. Geist was forced to concede that, yes indeed, creators will lose income with the inclusion of education as a fair dealing category. This point was made undeniable with D'Agostino's insistence that the bill contains many unintended consequences for creators, and Mr. Sookman's authoritative assertion that it is "unquestionably true" the bill as written will cost creators.
Nevertheless, Dr. Geist went to great pains to repeat his claims that the existence of education as a fair dealing category is not something creators should worry about -- all educational uses will still have to pass the established six-part test for fairness.
Thanks to Ms. D'Agostino for adroitly pointing out that it will, of course, be creators who foot the bill to insist on this six-part test in costly litigation, and that far more clarity is needed before such a broad term as education is given its own category under the law.
I've shown elsewhere that any assurances from Dr. Geist about educational fair dealing not being free dealing (as he likes to say -- it's a catchy term, and he does like catchy) sound quite hollow to creators. After all, this is the man who wrote in 2005 that fair dealing is "the staple provision that provides students and educators with broad rights to use copyrighted works," and that "Canadian universities spend millions in copyright licenses that are arguably unnecessary." This is also the man who is currently leading a campaign to have Canadian universities walk away from collective licensing of creator content in part because students can
"copy independent materials for research purposes, or make copies for private study purposes. None of this requires an additional licence."The millions Geist refers to are collected on behalf of thousands of working Canadian creators, and they are collected as payment for actual use in Canadian classrooms -- classrooms to which students are admitted only after they pay tuition. No one would reasonably argue that a student not paying tuition is exercising a "fair" use of a professor's teaching skill, expertise and time; yet that is exactly what is being argued about creator content.
Referring to statutory damage limitations yesterday, Dr. Geist insisted that the $5000 maximum still represents an "awful lot of money" to the average Canadian.
I agree, $5000 is an awful lot of money, and over $20 million in lost revenue is considerably more. The average Canadian creator can ill afford to lose this income, or to sue every time her work is used without a licence.