Monday, August 16, 2010

just another brick in the wall

(image courtesy on flickr)

Not all that long ago, every student in a course at university was expected to buy the same textbook. Educational publishers specialized in creating these textbooks, hired scholars and writers to produce them, and regularly updated them.

Enter the photocopier, and many professors decided their students didn't need entire textbooks -- a bit here and there from a number of books would do. The coursepack, an ugly, often horribly photocopied brick of reading was born, and students everywhere bought new glasses.

To compensate educational publishers for the fact that only portions of their books were now being used, universities signed collective license agreements with Access Copyright, a collective of publishers, writers and visual artists. Revenues from the licenses flowed back to the collective and were distributed to the publisher and creator affiliates. Every effort was made to ensure the price paid was fair and the money went to those who deserved it.

Enter the Internet, and educational practice has changed again. Professors now either scan works to create easily transferable digital files, or they simply find articles online and have their students access them that way. Yet the meat of the activity has not changed - Canadian creators and publishers continue to produce excellent materials for use in classrooms; professors continue to use those works; and students continue to learn from them.

Keeping with the times, Access Copyright has recently proposed a tariff covering all uses, photocopied and digital for a simple per-student fee. The tariff is currently before Canada's Copyright Board and will be adjudicated in due time. Unfortunately for Canada's hardworking cultural creators and publishers, not everyone in the education system is keen to do digital business with Access Copyright.

Prominent copyright critic and University of Ottawa law professor Michael Geist objects to the tariff. He makes a number of sensational accusations about the proposal -- that it ignores fair dealing, that it requires onerous reporting, but mostly that it costs too much.

Of course, one of the functions of the Copyright Board is to decide fair pricing. Think of the Copyright Board as a slightly less exciting version of baseball arbitration. Access Copyright is saying they are a great pitcher (of established educational content), while critics like Geist say AC’s arm is not worth the money. The arbitrator hears both sides and makes a decision on price that both parties should honour.

Except, Professor Geist has decided to unilaterally forgo arbitration and is instead proposing that education ignore the Copyright Board. Geist recently blogged that it might just be time for Canadian education to “walk away” from Access Copyright’s educational repertoire.

Much of the panic around the cost of the tariff is based on the assumption that students themselves will have to pay the bill. The numbers tell a different story. The cost to provide copyright coverage to all of Canada’s 1.5 million post-sec students has been calculated by critics at $60 million. Yet just one representative Canadian university -- say, the University of Ottawa -- could reasonably pay the fee for all of their full-time students with a tiny 0.2% of their budget. It would be entirely unnecessary for them to pass the cost on to students.

Despite the indisputable affordability, Geist is advocating a walk out. He suggests "with the prospect of such a dramatic increase in costs, education must self-assess to determine whether it actually needs these licences.” He then proudly claims that only open access materials are used in his classroom. What this means, presumably, is that students of Internet law at the University of Ottawa learn only from what Geist can provide for them through licenses that require no compensation to the original creator of the work. In other words, if Geist didn’t write it himself, or it’s not free, he won’t teach it.

This seems a shockingly arbitrary and irresponsible policy that will only place artificial (and highly political) limits on education. Students pay good money for their education. Shouldn’t they get the best for that money, rather than the cheapest and most-aligned to the prof's political leanings?

Geist’s walk-out is a version of the brinkmanship one often finds at the baseball arbitration table. Why pay for proven major league quality when a minor leaguer will come cheap? Yet, how many World Series have been won with minor-league pitching?

Canadian writers and publishers produce educational assets proven through decades of continuous use. If Canada is really focused on leading the knowledge economy, we walk away from such assets at our peril.

Tear down that wall

The Toronto Star has published a strong call for amending Bill C-32 (The Act to Amend the Copyright Act) as it pertains to copyright and educational use. The paper states "in one notable respect the initiative is flawed: the government, lobbied by provincial ministers of education, has included “education” in the bill’s “fair dealing” section of the bill, which allows copying within certain limits." The Star calls for Parliament to "rethink and take a hard look at the fair dealing section when Parliament resumes sitting in the fall and Bill C-32 goes to committee."

I have asked for the same rethink at the committee. Responding to my request for more discussion about a broad educational exception, Heritage Minister James Moore seems open to talking. Just another example of how open and consultative this latest round of copyright reform has been.

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Joe Clark said...

In essence, you are arguing that only copyrighted works for which someone, somewhere, pays a fee you deem perfectly affordable should be taught in school.

You and the writers you purport to represent have a poor record at expressing logically cohesive copyright arguments.

Gruesome said...

You seem to be trying to make an arguement where there is none. Geiest also sugests "moving toward individually licenced works where the need dictates (in addition to the purchases of texts and database licencing). Negotiating with individual authors or publishers for the rights to a single work may save money"
Sounds like a possible smart business move to me.

John said...

Mr. Clark,

Thanks for participating in the discussion. I think you may have incorrectly distilled my argument into the essence you wish to see.

What I am arguing, in fact, is that we should not place artificial and politically motivated limitations on what is taught in the classroom.

I would never advise ignoring the repertoire of open source, free or individually licensed educational content. And so I object to the suggestion that education ignore an established repertoire of collectively licensed work.

I hope that explanantion helps you to discern some logic in the argument.


I am all for individual licensing if it works well for both the creator and the educational institution. Collective licensing exists, I believe, because the little-bit-here-little-bit-there nature of educational use makes individual licensing unrealistic for a large repertoire of content.

It's extremely doubtful that the move to individual licensing for all paid content would save money for universities, especially when one factors in the time and staff resources needed to do such a complicated job. Geist may say what he will about the reporting requirements of collective licensing, but they are nothing compared to the level of detail needed to fill a curriculum with individually licensed works.

Michael Geist said...


An "irresponsible policy"?

This past year, my course readings included Supreme Court decisions, statutes, government task force reports, policy submissions, and regulatory findings. There were academic articles from leading experts, virtually all of whom post their work under open access. Last year's course also included guest lectures from CRTC Chair Konrad Von Finckenstein, the Office of the Federal Privacy Commissioner, Telus' Michael Hennessy, and Google's Jacob Glick. The student reviews suggest students felt they got good value.

My course is not unique in terms of the source of materials. As I noted in my original post, law school materials are based primarily on caselaw and statute. This is freely available work. Moreover, database licencing from Westlaw and Lexis cover virtually everything a lawyer or law student would want. It is hard to envision what is left for Access Copyright to licence in that environment.

As one of your commentators notes, I did not say no to licencing. I merely raised the question of whether the Access Copyright repertoire is needed by all. In my view, it is not needed for the thousands of Canadian law students and that reality has absolutely nothing to do with an effort to find "cheap" materials. In the legal discipline, the very best, foundational materials are all free.

As for your arbitration example, I prefer the NHL system of arbitration, which allows the team to walk away from the arbitration decision if they think the price is not right (as Chicago recently did with their goalie).


John said...


Actually, I called the policy arbitrary and irresponsible, and I hold to that assessment. Whether you personally are able to provide value for students using only open access and free content is not the point. Adopting a policy in that direction as a negotiation tactic is, in my opnion, extremely irresponsible.

I notice that you are now discussing law students only, while your original post is about all of Canadian education walking away from Access Copyright licensing. That would have been a helpful distinction for you to make originally.

I wonder as well, do your guest lecturers appear for free?

Gruesome said...

I wouldn't call the policy arbitrary and irresponsible. It sounds like it may need to be examined as a possible course of action. My wife just completed her masters in Nursing and used only material available through one of these databases.
How many students could fall under a similar plan that Michael sugests, all sciences perhaps? More?

The only thing arbitrary and irresponsible would be not to examine this a possible option for schools and students.
What could an examination of this option hurt?

Michael Geist said...


My original post opens in the first paragraph by talking specifically about law. I then ask whether the law experience is mirrored in other disciplines.

Yes, the guest speakers come for free. I also typically do several guest lectures for colleagues each year. At least in my field, I've never heard of a paid guest speaker in a university course.


artistslegaloutreach said...

John I read with interest your exchanges with Michael Geist. I actually teach copyright law to art students out here on the left coast. In addition I have acted for artists and creators for the better part of 15 years as a lawyer. AC has to make its case to the Copyright Board around the tariff and no doubt the (genuine) objections folks have will be made. I have written a few things at about what I think has been lost in much of the copyright debate and that is how to ensure a remuneration stream for creators in the absence of arts funding at any other level. I do not think we can rely on AC or anyone else to rein in what is happening and nor do most of the emerging creators necessarily want them to. This poses a huge challenge for all of us who care about creators as you and Michael both do (but perhaps in different ways rhetorically) The reason so many are dependent on the tariff I suspect is because there is (virtually) NOTHING else but that meagre royalty check from AC (or SOCAN or whoever) The law is not going to change what is I think the major issue: the lack of a cultural policy that values creativity and affords emerging artists access to a vibrant arts and culture sector that supports and nurtures them. Artists want their works read, seen and heard - we need laws that support that process including enabling a system of fair dealing that enhances access to knowledge. Can we not agree that we may have to adopt different strategies to get there including alternative models for distribution of material? It works for law it likely won't work for many other areas but it seems to me Michael's approach is not political and to say so undermines your credible and opposite view.

John said...


I'm not sure anyone is relying on AC to rein in anything. AC exists for a contained and valid reason -- collective licensing. I think it's a mistake to start talking about collective licensing or a vibrant arts policy. There is no reason at all these things should be mutually exclusive.

While I appreciate the tone of your response, I am having trouble with the suggestion that there is nothing political about Dr. Geist's advocacy.

Thanks for the comment.

John said...


Since I can't seem to leave this response on your blog... "reviewed by administrator"... I'll leave it here. It works for your last comment here as well:


This is really a shameful bit of dodge and weave from a public intellectual.

You have a bee in your bonnet about Access Copyright -- have had one for a long time -- and you have clearly suggested that all Canadian universities - not simply law schools - walk away from AC's collective licensing.


"Last week I raised the question of whether Canadian universities should consider walking away from Access Copyright in light of its recent tariff demands."

Really, sir, "I'm just talking about law classes" doesn't cut it.

You suggest this walk-out in the context of a running campaign against AC's recent tariff proposal.

The source and substance of your objection to the proposal has been effectively and honestly refuted by AC themselves as well as some of your own commenters.

I am happy you feel you manage to provide your students with enough open access and freely licensed content as they need to pass your classes, but I repeat that a blanket policy for all education that involves walking away from an established, used and tracked repertoire of content is both arbitrary and irresponsible.

I think it shows ignorance of just what goes into a high-quality liberal arts education in this country, and it shocks me to see such ignorance displayed here. You are, or should be, very well aware that AC covers a specific repertoire unlicensed elsewhere, is not interested in payment for fair dealing uses, is not advocating a 1300% increase, and provides licensing efficiencies that make the suggestion of individual licensing meritless in this context.

I asked if your guest lecturers are paid for their contribution, to which you replied, proudly, that they are not. While that's all very generous of the guests you do bring in, I find it hard to believe there isn't some outside expertise your students would find invaluable that doesn't come at reasonable cost. So, again, a blanket policy against paid content would insert an unnecessary prejudice against such a guest.

But let's go with your scenario - all content in law schools is freely available by its very nature, and all guests come without charge.

So why charge tuition at all?

Anonymous said...

I've been paid to speak to University classes for many years. It's a low rate compared to traditional public speaking, but I never speak for free. Pay ranges from $100 to $500. Michael clearly seems to bend the facts to suit his arguments.

RedWritingHood said...

"Let me get all the resources I can for free".

"Now let me charge you a lot of money to show you them".

Yeah... that actually sounds like something lawyers would come up with. Funny that individuals that will eventually charge you to look in your general direction would lean so heavily in favour of getting things for free.

Presumably as soon as they graduate they will begin to use the mantra that good counsel never comes cheap.

Gruesome said...

There seems to be a lot of misdirection here on what Mr Geist actually wrote.
First their was a question "Should Canadian Universities Walk Away From Access Copyright?"
Then their was an example specifically targeting law that showed little use for AC, "use openly accessible materials - court cases, statutes, government reports, and open access licenced articles."
Then he makes a suggestion "it may be time for the post-secondary education community to ask whether it should walk away from Access Copyright altogether"
The Suggestion is not that universities walk away from Access Copyright. But whether Universities ask themselves this question.
Then he says "education must self-assess to determine whether it actually needs these licences or whether individual licences with the authors (or copyright holder) where needed makes more sense"
I would hope that this is true, I come form a mostly business background and decisions of this type need to be examined no matter what field you're in to make sure your money is being spent wisely.
Given even a small increase of 10% I would think should cause anyone too look at how necessary a cost truly is.
Imagine if a business allowed every supplier to increase costs like this without an examination of value. And value is always determined by the purchaser and his right to walk away.
Then he asks many unanswered questions in regards to measuring the need, which truly should be asked if a University is in the business of education.
Then he makes a guess that Universities could walk away based on 'A Guess' "Their students purchase copyright works as courses require, use licenced databases, copy independent materials for research purposes, or make copies for private study purposes. None of this requires an additional licence."
Then he makes his strongest suggestion that Universities need to think about it "If this is the case, universities need to think seriously about walking away from Access Copyright and moving toward individually licenced works where the need dictates (in addition to the purchases of texts and database licencing)."
Also please note "If this is the case" Hardly a mandate to walk away from Access Copyright
His article is full of qualifiers, notably left out of your quotes.

I end up quoting almost his entire article because John honestly your interpretation is creative and the little snippets you seem to quote out of context

My belief here is that you may be feeling under siege, and not purposely being so "creative" with Mr Geist's words. You are taking somewhat unpopular positions and I realize you've been personally attacked before.
But as we look at some of your words I have to ask if your reading these articles with an open mind.
I mean 2 sentences on his not paying guest speakers and you got "which you replied, proudly, that they are not"

Pride? Really John?
Seemed like a quick answer to the question you asked but seemingly weren't happy to hear.

"But let's go with your scenario - all content in law schools is freely available by its very nature, and all guests come without charge."
Actually that wasn't his scenario, his included licensing directly from creators where necessary.

I could go on but you were kind enough to link back to the original article which.

I understand your passion but not the rhetoric.