Friday, December 23, 2011

false problems and bourgeois tragedies

I took an early winter holiday to the great American northwest, enjoying lots of fog and espresso all along the Puget Sound and in downtown Seattle. As a result, I missed (blissfully, joyfully missed) most of the latest round in the ongoing Canadian copyright reform tussle, including a two day argument-marathon before the Supreme Court of Canada on December 6-7. I am really just now settling in to reacquaint myself with the issue.

Copyright? What's copyright?

Well, according to some in the growing field of quasi-legal populist theorizing, copyright is that inconvenient and potentially evil thing what stands between the innocent, interested student and her education.  Having been thoroughly schooled in his own various interventions at the Copyright Board (and the Supreme Court?), law professor Ariel Katz takes to his blog instead, continuing to insist that without a fair dealing category, broadly interpreted, education will be terribly hobbled and free speech assaulted in classrooms across our fair land.

In both Fair Dealing, Copyright and the Haggadah, and Access? Copyright! Professor Katz indulges in the classic free culture gambit of introducing a false problem and then claiming that only a substantial weakening of creator rights will solve that problem.

The False Problem

In his attempt to explain free culture through sacred text, Professor Katz insists that recent Copyright Board decisions would force teachers to treat students differently according to their individual levels of interest and ability to request information. Anyone even vaguely familiar with the reality of public education in Canada knows that teaching inconsistency and the importance of student engagement have been the norm forever and have nothing to do with copyright. Still, Katz tries to blame copyright and a too narrow interpretation of fair dealing.

It's an interesting approach, though fatally constructed on a fallacy... that being some mythical link between the ability to educate and the ability to obtain educational materials outside copyright licensing requirements. Free culture advocates love to paint copyright as an iron curtain that shuts out users and imprisons true creativity, but such an image has no relation to how our free and open society actually uses created materials.

Copyright cannot stop a teacher from teaching. It cannot stop a student from learning. If a teacher (or a school, or an educational industry) refuses to deal in good faith with copyright, pay reasonable license fees and compensate creators for their work, that is not something imposed on them, that is a choice they are making.

Katz repeats this logical misstep in Access? Copyright! where he also tries to show how copyright law will stifle free speech within the classroom. Defining the simple licensing requirements for educational use as a "veto power" over education, Katz presents the nightmare scenario of a teacher unable to discuss or criticize a newspaper op-ed because she cannot distribute free copies of that op-ed to her students.

"I can't have this thing because it's not free" is what my lovely wife calls a bourgeois tragedy. We should remove the rights of artists, other creators and a vital segment of Canada's cultural economy because a school refuses to license 30 copies of a newspaper op-ed for their students? Really?

At most, we're talking about $3.00 for this hypothetical lesson that somehow can't happen because of copyright. If our educational system cannot spend $3.00 to teach 30 students something important, we have far bigger problems than copyright to deal with.

To blame copyright for the refusal of educators to do their jobs within the law is so diabolically illogical it frightens me to think such an idea is housed at the University of Toronto (where Professor Katz teaches). U of T remains one of great institutions of learning in this country. It is my alma mater, and I'm extremely proud to say it is one of the universities in Canada that continues to deal in good faith with my copyright collective.

Stop in the Name of Love (and copyright)

Thankfully, there are the Supremes. Back in early December, Canada's Supreme Court justices had little patience for such weakly constructed arguments. From the very first submission in the recent SCC appeal hearing on a K-12 educational tariff, the Supremes were looking decidedly quizzical and concerned, wondering why educators would claim fair dealing for insubstantial copying, and forcing education's counsel to admit that tens of millions of dollars of substantial copying were actually in dispute.

After years of slippery rhetoric from those arguing against collective licensing of copyright-protected works in schools, I can tell you it was unbelievably refreshing to watch that particular spin crash to the floor of the Supreme Court.

You can see the full appeal arguments before the Supreme Court in this archived webcast - warning, not for those interested in actually being entertained; only the copyright-geekiest will enjoy.

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*(image of the Honourable Mr. Justice Marshall Rothstein courtesy the SCC webcast; image of fog in the beautiful trees of Puget Sound courtesy me and my little camera)


Sandy Crawley said...

Thanks for this post and the SCC link John. Spot on, as usual.

Bruce Wilson said...


Bruce Wilson said...