Thursday, July 12, 2012

Supreme Court painfully divided on educational use of copyright-protected materials

In a replay of the industry head-shaking following the often misinterpreted CCH decision, the Supreme Court of Canada has delivered another astonishingly short-sighted blow to Canadian writing and publishing, and has free culture activists dancing in their well-appointed academic offices.

The decision released this morning in Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 can be found in its entirety here. The court was split 5-4, but the decision went for the appeal of the Ministers of Education, which means that their appeal of a copyright tariff must be heard at the Copyright Board.

What it also means, I believe, is that the current confusion over what, how much and for what purpose a teacher can and cannot copy has been, ironically, increased. By making no distinction between the act of teaching within a set curriculum and lesson-planning environment and the very different act of individual research or private study  (and, in fact, by deliberately conflating those discrete acts), the 5 justices finding for the appeal have muddied the fair dealing waters even more than free culture could have hoped. Without question, anyone claiming to be in the role of a teacher will now be under the impression that almost any amount of copying done for that role is allowable under the law.

Paragraph 32 of the judgement reveals the strange free culture thinking that has crept into the SCC of late:
"In my view, buying books for each student is not a realistic alternative to teachers copying short excerpts to supplement student textbooks.  First, the schools have already purchased originals that are kept in the class or library, from which the teachers make copies.  The teacher merely facilitates wider access to this limited number of texts by making copies available to all students who need them.  In addition, purchasing a greater number of original textbooks to distribute to students is unreasonable in light of the Board’s finding that teachers only photocopy short excerpts to complement existing textbooks.  Under the Board’s approach, schools would be required to buy sufficient copies for every student of every text, magazine and newspaper in Access Copyright’s repertoire that is relied on by a teacher.  This is a demonstrably unrealistic outcome.  Copying short excerpts, as a result, is reasonably necessary to achieve the ultimate purpose of the students’ research and private study." 

Here, the 5 justices finding for the appeal are essentially saying to every school in Canada - "don't bother buying books for your students. Just buy one, and then make copies of the stuff you need from it." This interpretation of a book as just separable bits and pieces of information that can be copied willy-nilly (as long as the copied bits are small enough, he said vaguely) is an assault on the practices of writing, publishing and book creation in Canada.

To be clear, no-one has ever denied that teachers can copy samples of work from anywhere to show to students during instruction. But that's not what this decision says. By washing out the critical "instruction" part of the act, this decision invites a giant increase in the use of coursepacks (photocopied or digitized collections of material "samples") in Canadian education. Limited coursepack use has already negatively affected the Canadian textbook industry, though the damage to this point has at least been offset somewhat by collective licensing. Since Canada's free culturists are already predicting tens of millions of dollars in cost savings because of this decision, it's impossible to argue that Canadian writing and publishing will not be seriously hurt.

But writers and publishers are not the only ones who will struggle against the long-range implications of this short-sighted decision. Paragraph 23 of the ruling should send a chill down the spine of any professional educator who's actually paying attention to where this is all leading:
"In the case before us, however, there is no such separate purpose on the part of the teacher. Teachers have no ulterior motive when providing copies to students. Nor can teachers be characterized as having the completely separate purpose of “instruction”; they are there to facilitate the students’ research and private study. It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers. They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying. The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study. Instruction and research/private study are, in the school context, tautological."
This all but defines the role of a teacher as "the one who provides copies", full stop. There you go teachers - you are not instructors. You are merely private study facilitators. I wonder how that will shake out in future collective bargaining negotiations.

There is cold comfort to be found in the dissenting opinion of the remaining four justices, which makes no bones about just how wrong this decision is. Fair to say, I think, that Canada itself is utterly divided on whether or not it wants to continue to produce its own literature, and to teach it in schools.

The bottom line, ignored sadly by 5 of 9 Supremes, is that you don't have Canadian books without Canadian publishers or Canadian writers. And you don't have either writers or publishers if you don't pay them for their work.

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Sandy Crawley said...

Thanks John. You have helped to lift some of the clouds I see on the horizon as a result of the short-sighted and superficial analysis the Chief Justice applied in the decision. Whereas Justice Rothstein exhibits a much better grasp of the realities in his dissent.

D. B. Scott said...

Sandy, I wish I were as phlegmatic as you about the dissenting opinion, no matter how good Justice Rothstein's grasp is. 5-4 might as well have been 9 -0, since users (not to mention the freecult) will interpret the decision as a free pass. The option for publishers and writers will be reduced to quarelling over (and possibly unaffordably suing over) infractions of the impossibly vague definition of what may be copied.

My interpretation is that the SC has said is that as long as a teacher didn't copy, or cause to be copied,the whole book, only a chapter or two, he or she is in the clear.