Thursday, December 09, 2010

pouncing on copyright in the classroom

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?

Bookmark and Share

*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)


Crockett said...

John, I'm not sure everyone in the world is out to get as much for free as they can. I think people are generally reasonable if they receive and then in turn give respect.

Having said that I am in agreement for more clarity on any of the fair use provisions in C-32. Lets avoid confusion and unnecessary court time and costs.

I do have some honest questions about educational materials. I hear mention of some institutions moving to using open, database subscriptions and direct licencing sources. Are not some of these paid service that will also compensate creators or are they something different?

I understand open is often 'pro bono', but how much of a return from the other services can creators expect to see? The same/less/more? Will there be a degradation or improvement in the amount/quality of the material available to students?

I have not heard much spoken on these issues. Thanks.

Joe Clark said...

The “$45” fee you insist is not only fair and affordable but a God- and legislation-granted right goes to a copyright collective, not to “creators,” who see little or none of it on the back end.

In case you still do not understand, the purpose of copyright is not to ensure perpetual rents to copyright intermediaries.

If you wish to argue for a guaranteed revenue stream for collectives that add nothing at all to scholarship or creators’ rights, do so, but that would require accuracy and honesty. We’ve been waiting for those for rather a long time and have mostly given up.

Gruesome said...

You had me laughing out loud on this one. My wife is like, "what are you laughing at?"
Well lets see the not so funny part, this 80% lost revenue, isn't that unrealized revenue as Universities are starting to walk away from Access Copyright altogether. I assume you're doing a calculation based on the so far unaccepted new terms.
The truth is Universities are more likely to maintain if not increase their spending on educational Materials as they seek other sources other than AC.
As for this University ,1 bad actor out of approx 3600 Universities in the litigious US is sued.
And I checked I couldn't find another one.
What does that say
Says to me that Universities ought to be lauded for their outstanding commitment to respect of authors copyright.
John you have actually become the chicken little that ran out to yell "ALL IS CLEAR! IT"S COMPLETELY SAFE!"

Gruesome said...

Forgot to mention. Could you please explain the logic that would suggest that this particular incident would have certainly been avoided with education removed from fair use.
Set rhetoric to stun, no wait lets build the Death Star, of course like the Death star this rhetoric...well we know what happened.

Sandy Crawley said...

Copyright collectives such as Access Copyright pass through the royalties to the rights holders including the creators whose works are copied. Some for-profit databases pay rights holders and some don't. Creators regularly get scr#%*d out of their rights by contract. Collective administration is by far the most practical way for individual creators to be compensated for the copying of their works. No one is suggesting that copyright last forever.

Joe Clark is either ignorant or dishonest on these points.

John said...


The 80% is not my calculation. It is quoted from an advisory to students by the Canadian Federation of Students. Interestingly, this admission by the CFS that the central concern is saving money has been removed from their site since I first grabbed the quote for another posting. Circle the wagons.

Another CFS advisory on copyright includes this information:

Although Canada’s fair dealing provision recognises the
need to make copyrighted works available to encourage
reasonable access for educational purposes, it is inferior
to those of many other nations with more extensive
provisions for educational use. Unlike the American “fair
use” clause, the Canadian provision does not even include
the right to make multiple reproductions of a work for
classroom use.

The link between fair dealing for education, mass copying for classroom use and the saving of lots of money that would otherwise go to creators and publishers is explicitly made by the groups advocating for this new category. Ignore it all you want to satisfy your ideological concerns. It's there.

I'm guessing if the publishers win against Georgia State we will either see new litigations based on this precedent or a wholesale adoption of proper copyright procedures in e-learning in the American college sector. That's sort of the point of litigation.

Joe Clark,

You contribute nothing to the conversation. Your comments now are mere repetitions of past statements you've made here, and those original statements were inaccurate.

The collective you are so angry with was created and is staffed by cooperating creators and publishers both individually and through their professional associations. As a creator associate, I'm a voting member, I affect policy, and I receive a share of the educational licence royalty. Learn the basics of what you're talking about or keep quiet.

Finally - Crockett... fair question - database subscriptions and direct licencing are perfectly agreeable forms of content delivery, and they compensate creators according to the terms of the contracts creators have signed with the service for the content used. I have no issue with those methods - nor do I care if a creator offers her work as open access. I am about the creator controlling those choices.

What you see happening over fair dealing (and TPM, really) is an ideological struggle to define the accessing of publicly available work as fair, whether the creator should reasonably expect compensation or not. The battle against collective licencing is an attempt to undermine and ultimately remove altogether the idea that a blanket licence is needed to cover uses not locked down into subscription or closed licencing models. The idea that it is about confidence in access is a red herring, as I've pointed out above. The licence exists to provide that confidence. The real issue is money.

John said...
This comment has been removed by the author.
John said...

... and to follow up on Sandy's colourful point, yes, the terms of contracts for colsed licencing systems can be quitye bad for creators, which is an important side issue ion this discussion. Creators, especially individual creators, are always the weaker party in contract negotiations, at least until they reach star status (which is, of course, rare).

All that said, bargaining power for creators is certainly not likely to increase if their basic rights to ownership of their own work are undermined by the law itself. The inherent value of created content is indisputable. If everyone didn't want to get their hands on it, we wouldn't be having this discussion.

John said...

Finally, can I just say I'm disappointed no-one has commented on the Georgia State fight song in the panther link.

I wonder if the GSU lawyers sing that as they march into the courtroom to do battle with the publishers.

Unknown said...

Thus the need for OpenCourseWare. Now that would allow a significant cut in the cost of a University education.


Crockett said...

@John "... and to follow up on Sandy's colourful point, yes, the terms of contracts for closed licencing systems can be quite bad for creators, which is an important side issue on this discussion."

Which is all the more reason for creators to pursue other distribution methods using new emerging technologies.

If the current crop of publishers and labels give such crappy contract terms to creators then I fail to see why the creative community is so fast to jump to their defense?

Would it not be better to join together and form some type of co-op and leverage digital direct to market distribution?

Unknown said...


Gather you are on holiday - Merry Christmas to you and your family.

I saw this interesting article from Iran, thought you might like to read it:



Unknown said...


Another link you may be interested in:


Spencer said...

Hi John - Good to meet you yesterday at the Thinking Culture debate.

I would just like to clarify in your post that my organization, the Canadian Alliance of Student Associations, which was the only student group to have presented when this post was written, has never claimed the 80% figure you cite. We don't believe that will be the effect and have never done so. For our members, modernization of the Copyright Act is about ensuring we have the freedom to manipulate copyrighted materials in appropriate ways and without restriction, rather than getting the costs of those materials down in the first place.

We do, however, believe that the allowance of format/time shifting will allow not only students, but everyone, to be protected from licenses that seek to charge Canadians multiple times for the same content over multiple media. So from our perspective, there's an opportunity to limit cost growth, definitely, but little opportunity for a reduction in current costs.

I acknowledge that two different national student associations create confusion at the best of times but it seems relevant to point it out given that you're suggesting some form of double-talk on the part of students.


John said...

Hi Spencer,

Thanks for the comment. I do recognize that your particular organization is not the national student organization looking forward to an 80% cost reduction paid for by Canada's professional creators.

Your point at the debate yesterday about ease and immediacy of classroom use is a strong one -- I just don't believe we need to strip professional creators of established rights to get there.

A negotiation has to happen, with licensing as the eventual outcome, both the private corporate licensing and open access Geist favours (those are interesting bedfellows, no? why those two and NOT collective licensing?), and licensing by the copyright collectives that have done such excellent work on behalf of creators and educators in Canada.

What is to often overlooked, and what I try to keep some focus on because I think it's quite dangerous, is the established fact that a number of prominent and loud theorists are using the shell of the debate you and I engaged in yesterday to advance something far more extreme.

We heard Roanie Levy dig it out from what Adrian was saying yesterday. There's a little bit of sneakiness going on, in which certain educational interests are trying to inject law into C-32 to give them what they consistently have not been able to get through either the courts or the copyright board. It's not easy to spot, because much of the initial campaigning is well in the past and these folks now studiously avoid repeating their old arguments. These are the folks, like Geist and Knopf, who have advised in the past that fair dealing could actually be interpreted far more broadly and give educators far more freedom from licensing if they just insisted upon it more.

I've been saying for years that I think Geist stopped talking about an education-specific exception to copyright because he believes he can get that and more by advocating for a general expansion to fair dealing.

Anyway, my rambles from an airport lounge. Good to meet you, and best of luck completing your studies

Unknown said...

My main issue is a side one. I don't think that the artists have sufficient control over the Collectives. In my personal opinion, there should be no corporate representation on the boards of any of the collection societies.

Which is a radical notion, that the corporations will oppose to the death.