After my posting on a library association resolution last week - when librarians lend their politics, or, information wants to be doctrinaire - a thoughtful library worker wrote her own posting on her own blog:
My response is below. I wrote this as a comment on this librarian's blog. For whatever reason, she has chosen not to publish it (I don't know what her comment policy is but she certainly isn't required to publish comments). I feel my response is important - key, in fact, to any discussion going forward, because it addresses not differences in interpretation but a clear and demonstrable misunderstanding of the actual law in play - and so I publish it here myself.
I am the author who "blasted" OLITA on my blog. I am also the Executive Director of The Writers' Union of Canada, so someone with a mandate to represent the interests of professional book authors in this country.
Can I start this comment by asking for an agreement between you and me at least, that “blasted” may be too harsh a term? I strongly objected to a resolution passed by OLITA. I continue to strongly object. That said, I want to thank you for your reasoned approach to the topic.
One of my goals is to open up conversation between the library, instruction and creation corners of our common enterprise, and get to a meaningful understanding based on the real facts. After I blogged the other day, I was called a jerk and a troll in public on Twitter - by librarians. So, perhaps not the best start for my project.
I hope it can eventually be accepted in good faith that no-one in my corner wants to make the work that goes on in your corner difficult. Access to creative works - and as seamless as possible an access - is a goal we share. I understand many think that Access Copyright has done a poor job with that. I'm willing to bet that folks inside AC believe they've done a poor job of it, but certainly not for lack of trying or intention. I disagree with your characterization of fair dealing, and I hope to explain why.
Let me get this part out of the way – I am a strong defender of fair dealing. Elsewhere within the library community, it’s been written that I don’t believe in fair dealing. Nothing could be further from the truth for me or for, I believe, any writer. It’s next to impossible to BE a writer without depending on the fair dealing provision for research and private study. We all use it in almost all of the work we do. Freedom to use short passages without permission for quoting, exposition etc. is also a cornerstone of a truly vibrant freedom of expression understanding. I love fair dealing, and I defend it in my work.
But, fair dealing is not a one-step provision, as you’ve described it. Thinking only about the purpose of your copying is a dangerous misunderstanding of the provision of fair dealing. You wrote “it means that if a student comes to me and says, “I’m writing a paper on the university’s architecture! Do you have any photos I can use?”, I can say, “Yes! Definitely! Sign this agreement that says you’ll only use them for research purposes and then we’ll start hunting.”
Well, that is simply not the case, and any good lawyer without an agenda will tell you so. The purpose (or category) of the dealing is NOT the only consideration when deciding whether or not that dealing is fair. You MUST also take scope (among myriad other things) into consideration. The licenses AC offer, the respectful royalty arrangements that have been in place for decades, cover the territory between where fair dealing ends (because of the scope or amount of copying – nothing to do with purposes or categories), and the need to actually buy a full text. Licensing has NOTHING to do with fair dealing and sits nowhere at all on that same territory. That is a misreading of C-11, recent SCC decisions and the basic concept of copyright – and while I don’t believe this of you, I do believe some are intentionally misreading this to push a free culture agenda, using the complexity of the law as a screen to get busy teachers, students and librarians on side.
So, when you say “Definitely!” to your hypothetical student, I’m afraid you are giving them very bad advice that exposes both them and you to liability for infringement. You’ve said you don’t advocate for infringement, and I believe you, but under your definition of fair dealing, infringement is almost a guaranteed outcome. In fact, it is only WITH a license like those offered by Access Copyright that you could ever say “Definitely!”
This is not something I should be telling you. It’s something that CAUT, OLITA and your own administration should be telling you. Unfortunately, the “licensing makes fair dealing more difficult” line has populist appeal, and administrations are being lured by potential cost-cutting.
I totally understand that librarians are uncomfortable being perceived as anti-creator, but in this instance, the math only works one way. Approximately $7.5 million was paid to Canadian creators for use of their work (not covered by any definition of fair dealing, new or old) in Canadian classrooms in 2011. That’s real money the writing community simply cannot afford to do without, and anyone advocating, as OLITA has done, to eliminate Access Copyright’s collective licenses is, in fact, advocating to take a similar annual sum from the writers who’ve earned it with their hard work. Will the elimination of those payments to authors mean reduced tuition or increased library budgets? I think we both know the answer to that question. Everyone loses when fair dealing is misunderstood in this way.
Thanks for the posting. More dialogue to come, no doubt.
Oh, and p.s. to everyone - I do NOT delete comments from my blog, and I never have. I have a comment moderation policy that I was forced to put in place after malicious and unhelpful commenting practices from a small cluster of loud free culture activists. You can find my policy here.