Wednesday, September 12, 2012

back to (law) school for Canada's freecult

Back in the early days of August, I wrote a short opinion piece in the Globe and Mail warning against a trend of wild speculation about changes to copyright law and an ideologically driven movement away from the tradition of collective copyright licensing in Canada's educational sector. Tens of millions of dollars in copyright royalties are paid annually to Canada's writers and publishers to compensate for copying in educational settings. This is not copying that falls under any fair dealing exception, and it is not copying that will stop happening. The fact remains that Canadian educators depend on licensed copying of substantial readings and educational materials beyond textbooks.

If you doubt that fact, open your own child's homework bag tonight and count the textbooks. I haven't seen an actual textbook in my kids' backpacks yet, and they're in Grade 5. But I sure have seen a whole bunch of photocopied lessons.

In my op-ed, I explained how a recent Supreme Court of Canada ruling on a tiny proportion of educational copying was being opportunistically used by free culture ideologues to push the incorrect idea that collective licensing for education is no longer valid. I warned that schools, universities and colleges buying into this freecult fantasy would force Canada's writing and publishing community to fight for their rightful royalties in expensive legal battles no-one can really afford. I wrote:

Canada’s populist free cult will have a lot to answer for in the coming legal battles. I hope schools and libraries eventually recognize who has led them down the weedy path and away from their traditional partners. “There’s no free lunch” can be a painful lesson.
Today, none other than Canada's foremost expert in intellectual property and copyright law, Barry Sookman - the man who, literally, wrote the book on intellectual property law in Canada - has published a posting on his blog analyzing in detail the Supreme Court ruling in question and the outrageous claims of the freecultists. His conclusion and my conclusion appear to be perfectly in line.

Sookman focuses on the loudest of the freecult voices, and systematically and authoritatively destroys the credibility of its argument against collective licensing. A few choice quotes:
...exaggerates what the Court decided and ignores that the Court's opinion was on a very narrow issue.

...ignores the fundamental principle that fair dealing is a question of fact and fails to recognize that the Access Copyright decision did not address any other forms of copying.

...misinterprets or exaggerates what the Supreme Court said about the fairness factors.

... gives no reasons why the year over year losses of tens of millions of dollars in licensing revenues would not be considered a significant loss.

...[the] assertions are devoid of legal analysis.
and, finally:
In light of the serious flaws... teachers, professors and educational institutions might well consider whether the information they are using to inform their decisions is analytically sound and, if followed, could break with their most fundamental values.
The copyright geekiest among us have been hearing rumours of a recent unofficial legal opinion delivered to the Association of Canadian Community Colleges, instructing them that, in light of the SCC ruling, collective licensing for the copying of educational material is no longer necessary. It does not appear the ACCC has made this opinion public, and yet it's being reported - and quoted - gleefully by the freecult. As I have pointed out a couple of times in the past, there is often little to no difference between the opinions being reported on by the freecult, and the freecult itself.

If Canada's community colleges follow this mysterious "legal opinion" and decide en masse to reject collective licensing while continuing with massive copying, the rights of Canada's publishers and writers will be trampled, millions of dollars in hard-earned cultural revenue will disappear, and individual teachers will be exposed to extreme legal liability. The potential damage to both education and culture from decisions based on misinterpretations of actual law is enormous.

Writers and publishers have done everything we can to strike a reasonable bargain for our work. We have formed a collective and offered affordable licences for copying. The next moves are entirely up to educational institutions and their associations. In what is clearly a cynical attempt at brinkmanship, the freecult is leading education off a legal cliff. Will education pull back in time?

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1 comment:

Sandy Crawley said...

You hit the nail on the head, John. It is either conscious brinksmanship ore obdurate blindness to the facts. En IP Osgoode is advertising an upcoming session on the SCC decision in this case as if our highest court had demarcated the boundaries of Fair Dealing in education when all they did was send the matter back to the copyright board. The ACCC seems to be getting questionable advice...