Tuesday, February 22, 2011

are some goods gooder than others?

Last week's video message from The Writers Union of Canada (TWUC) had quite an impact on the copyright debate in the country, in that it got an often reticent writing community to start discussing the issue in some detail.

Of note is a discussion started over at the BookMadam & Associates blog when blogger and Y/A author Jill Murray announced that she wants schools to use her books for free. Since the video was warning about a potential loss of educational licensing rights and revenue for authors, Murray's less than enthusiastic review of TWUC's message attracted a lot of attention. I mean a LOT of attention. The last count I saw had about 4000 sets of eyes on the blog posting and subsequent comment conversation.

The result? Undecided. I count myself among the writers (and commenters) who would like to assure Jill Murray that she can give her work away to anyone anytime she wants, and I will not try to stop her. My enduring concern is that the rest of Canada's writers receive the same consideration and they too are not forced to give up a business model (collective licensing) they want to use.

I also continue to be concerned that the legitimate concerns of TWUC and many (I would have to say the great majority) of professional writers in Canada not be misunderstood as some sort of attack against teachers and educators. So much of the comment surrounding this video assumed that writers were angry at teachers and trying to keep them from the content that will help them teach. As I said in one of my many comments about the video -- how does noting that teachers get paid for their work constitute an attack against teachers?

The "writers are fighting teachers" meme was accelerated by Cory Doctorow's post on Boing Boing claiming the Canadian copyright collecting society uses lies to pit creators against schools.

Doctorow's nasty swipe at Access Copyright is predicated on the idea that the writers in the TWUC video want to deny teachers and other educators fair dealing access to copyright-protected material. That certainly sounds bad.

Except that's not at all what's happening. Teachers have access to the exact same fair-dealing provisions that everyone else in Canada enjoys, and I don't know of a single writer who wants to take those provisions away from them -- in the same way I don't know a single writer who wants to stop Jill Murray from doing whatever she wants with her books.

The proposed fair-dealing category is not about extending rights to teachers they currently don't have, it's about increasing the industrial education sector's leverage in their claims against collective licensing. Let me say that another way - this is not about individual writers denying individual teachers easy access to their work; it's about huge university administrations not wanting to pay (as much, or at all) for the content they use to teach tuition-paying students.

Anyway, I was pretty sure I had that right last week when I entered the fray and challenged Doctorow on his facts. It's awfully nice to see some very authoritative legal opinion backs me up on this. Today on IP lawyer Barry Sookman's blog, fellow IP legal expert Dan Glover has spelled it all out better than I ever could:

What is truly at issue in this debate over C-32 is whether it makes sense to introduce a new allowable purpose of great potential breadth, thus asking one public good (publishing) to deeply subsidize another (education), when other economic inputs into the school system (energy, labour, supplies) face no such challenge.

Writers and publishers good; education gooder? Surely there's a better solution.

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Pieter Hulshoff said...


It would be nice if you could staff your arguments with actual law texts. Looking at C-32, it states:

Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.

I see no way you could read that as a wholesale right for educators to copy works as they see fit. They need to pass the same fair dealings test the other groups do, as they have to do in large parts of the rest of the world (like the US and EU). However, if you feel the law is unclear, why not have it clarified rather than arguing against the exception?

Pieter Hulshoff said...

The other articles I see state

29.4 (1) It is not an infringement of copyright for an educational institution or a person acting under its authority for the purposes of education or training on its premises to reproduce a work, or do any other necessary act, in order to display it.


(3) Except in the case of manual reproduction, the exemption from copyright infringement provided by subsections (1) and (2) does not apply if the work or other subject-matter is commercially available, within the meaning of paragraph (a) of the definition “commercially available” in section 2, in a medium that is appropriate for the purposes referred to in those subsections.

Again, it is clear that this only allows educators to copy a work for the purpose of displaying it, and only if the work isn't already commercially available in a format suited for that purpose.

Again: if you feel it needs clarification: have it clarified in stead of arguing against. Clarification of the law in this regard will not get you any opposition, not even from the "free culture club" as you label them.

John said...

Hi Pieter,

Thanks for including those other two subsections. As I'm not a lawyer, I tend to look at broader implications, rather than the legal wording for my discussion. That said, both you and Dan Glover have given ample examples of how education in fact already enjoys greater provisions in Canadian copyright law than do regular individuals counting on fair dealing.

My (longstanding) issue with the new category is that the other categories you mention -- research, private study, parody or satire -- do not encompass or represent large industrial-scale users, and the vague category education most certainly does.

Since Dr. Geist himself has admitted in testimony before the Parliamentary committee that this new category will result in loss of revenues to creators, what Mr. Glover describes -- one public good being asked to subsidize another -- is exactly what will happen with the introduction of the new category.

Mr. Doctorow has made incorrect claims about the purpose of the new category -- brief quotes, display purposes, etc. -- but as you've shown here, educators already have those rights and there's no need for a new category to secure them.

Furthermore, the intention of the industrial education sector is clear and unhidden. They intend to challenge existing collective licensing structures using the new fair dealing category in the hopes of achieving a CCH-like Supreme Court victory that will do away with the need to licence most of not all classroom use. In other words, they are hoping this new category will help them avoid paying tens of millions per year to the legitimate rightsholders of work they use in delivering paid education. They have explicitly said so in submissions to the copyright consultation.

BTW, the six-part test we are all supposed to pin our hopes on did not help the legal publisher who lost in CCH -- despite the fact that there was clear damage to an existing market.

Finally, you suggest artists should be asking for clarity rather than the elimination of the new category. If you had followed this debate from the beginning, you would know that clarity - specifically, "clear legislative guidance" -- around the new category is exactly what a coalition of writers groups has asked for. By contrast, Dr. Geist (a.k.a. Mr. Free Culture) advised that clarity was not needed, and that in fact the call for clarity from writers was really a nefarious scheme to overturn the CCH decision.

As my writer friends say... you can't make this stuff up!

"Legislative Guidance" on Fair Dealing: The Plan to Reverse CCH?

BTW, no comment on my ice-walk? I'm not just a copyright whipping boy, you know. I have other interests.

Sandy Crawley said...


I'd say that fresh air did you good. You've come back with a fresh calm in the face of distortion and negative spin from the "technology trumps rights" crowd. One foot in front of the other is better than a Skidoo any time...