As the special Parliamentary committee on Bill C-32 (the Act to Amend the Copyright Act) hears from more and more witnesses, the issue of creating a new category of fair dealing called "education" is getting more and more play. Consumer advocates, certain professors* and, sadly, student groups insist that an educational category will not endanger the rights or revenues of authors and publishers.
I am particularly disappointed with the position of student associations presented to committee on this issue, since they are on record as connecting a fair dealing exception for education with dramatically reduced costs (as much as 80%) for educational coursepacks. How they can suddenly claim that revenues for creators will not be threatened is baffling. I am trying my hardest right now not to use the expression "kids these days..."
Various representatives of authors, publishers and their collectives, as well as several principled academics have advised extreme caution in the introduction of a vaguely defined educational category. As I've pointed out many times, the educational sector has already prepared itself for a legal challenge against established collective licencing. I believe this challenge is an attempt to stop the principle of the photocopy-licence from evolving into the digital age. All sorts of "digital delivery is different" rhetoric gets thrown around in this debate, as though the act of using copyright-protected material to teach a classroom full of tuition-paying students is qualitatively different when the kids are looking at laptops instead of photocopied booklets.
The saddest part in all of this, for me, is the naive assumption on the part of students and their associations that reduced licence fees for universities will mean a reduced financial burden for students.
Oh, the innocence of youth.
The highest possible licence fee on the table is $45 per student. $45 for a year's worth of digital delivery. That's less than most monthly cell phone bills. That's two nights out at the campus pub (I'm being generous). Does anyone really believe student fees will be $45 less next September if this change to copyright happens.
Let me repeat, again, that the licence fee of $45 per student for every single post-secondary student in Canada does not have to be passed on to students, and could be paid with less than 1% of the annual budget of just one of Canada's universities. This "significant cost savings" will disappear into the budgets of universities, never to be seen by students; meanwhile, authors and publishers will lose significant rights. Who wins? Nobody.
Yet another argument for the new fair dealing category is that it will provide educators with the confidence to use new technologies and delivery systems to provide students with learning materials. That's great.
Except that's exactly what the collective licence does. If universities signed the licence and paid the fees, their profs wouldn't have to give copyright a second thought. So what's standing in the way of this much desired confidence? Money, that's what's standing in the way. Less than 1% of one university's annual budget. Money that would fairly compensate writers and publishers for the educational use of their work.
Are writers and publishers over-reacting? After all, we hear a lot about the Supreme Court's CCH decision and the six-part fairness test that would make sure the educational sector doesn't overreach on their use of copyright protected material. Professors all have the six-part test and SCC decisions memorized, right? There will be no confusion once our laws say educational use is a fair dealing, right?
Has any school ever misused digital delivery of educational materials?
Yes, they have. Georgia State University (whose mascot is Pounce, the Panther... thus my headline) is right now fighting a lawsuit from three large educational publishers claiming copyright infringement in GSU's digital delivery of materials. From the story in the Georgia State Signal:
"Instead of assembling physical copies of an article or book chapter, professors scan or download sections of the texts need for the class and post the material on a server where students can access it. However, with this new system, publishers are not receiving their reproduction fees for the material used and posted by the professors, which exceeds fair use, according to the publishers.
The publishers claim that Georgia State made more than 6,700 works available through E-Reserves and uLearn without permission or compensation for students in more than 600 classes."
This lawsuit has been before the US courts since 2008. Is this the future Canada wants for its educational publishers and institutions?
*It should be noted that only 1 out of 3 prominent academics who have appeared before the committee spoke in favour of an educational category, and even he was forced to concede that reduced creator revenue would almost certainly result from such a change to the Act.
(image courtesy the Netherlands Nationaal Archief - and thanks to Barry Sookman for the tip on the Georgia State case)