Tuesday, April 09, 2013

what's your hurry, free culture?

Yesterday, Access Copyright, the collective licensing agency for Canada's writers and publishers announced they had been forced to launch legal action against "York University, ministries of education, school boards and post-secondary institutions that copy - and promote the copying - of copyright-protected materials without a licence."

According to their statement, these actions were taken reluctantly as a last resort against intransigent former partners who have simply walked away from the legal necessity to licence the works they continue to use in large quantities.

To anyone following the now Homeric plot of copyright reform in Canada, legal action by Canada's writers and publishers, through their collective, is about as surprising a twist as the Blue Jays not being handed the 2013 World Series trophy by their opponents on opening day. Writer groups, publisher groups, Access Copyright themselves all made official submissions to government during the design and passing of last year's Copyright Modernization Act, and all unhappily concluded we would have to go to court if educational administrators used ill-defined changes to the Copyright Act as an excuse to stop paying for our work.

So, here we all are. Those pushing a free culture agenda in the educational community have always claimed that they do not condone copyright infringement, that they respect the rights of creators and publishers and truly believe Canada's cultural creators deserve to be paid when their work is used in educational settings.

Well, Access Copyright believes they have found instances of infringement, and an organized and officially sanctioned lack of respect for the rights of creators and publishers. They believe their affiliates are rightfully owed licence royalties for work used in educational settings.

Is free culture sympathetic? Of course it's not.

Today, free culture theorist and law professor Michael Geist characterized the Access Copyright legal action as a "desperate declaration of war against fair dealing." In a blog posting that admitted to not researching the actual legal documents in the suit* (they weren't online - how was a professional scholar supposed to find them?), Geist seems to conclude Access Copyright does not have a substantive argument to make.

In a talk Michael Geist gave to the Professional Writers Association of Canada in 2006 (a talk for which he was paid - I know, because I signed the cheque) he insisted that copyright infringement is against the law and that writers should take infringers to court. In 2013 apparently, legal recourse is no longer a remedy for writers; instead it's an attack on fair dealing.

Also quick out of the prejudgement gate today was the Canadian Association of University Teachers (CAUT). In a press release, CAUT decided the Access Copyright lawsuit against York University is "hopeless," that the business of collective licensing represented by AC is "obsolete" and that, bafflingly, the Supreme Court of Canada established fair dealing for research and study in 2004 (pretty sure fair dealing for research and private study predates 2004 by several generations, and still doesn't condone large scale infringement).

On their website, CAUT makes this statement about intellectual property:
CAUT actively defends the works of academic staff from expropriation and misuse by employers and other special interests.
Access Copyright believes it sees expropriation and misuse of work (much of it by academic staff, no doubt - there's a lot of writers in the academy). Not only is CAUT expressing zero sympathy for the rights of those possibly misused in this instance, somehow they figure they know the end result of this legal action. It's a confusing position for a professional association to take. Don't bother trying to protect workers against expropriation; it's hopeless.

Writer groups (like The Writers' Union of Canada, for whom I work), publisher groups and our collective licensing agency are all involved in active outreach to academic faculty, students and information workers in libraries across the country. We're working to counter an awful lot of incorrect assumptions that seem to have grown up around the need for licensing in educational settings. It's funny, when you get away from the gurus and the radicalized advocates and talk to the people who actually have to use copied materials, you hear an awful lot of regret that some administrations might be poisoning our cultural well by trying to avoid licensing, and you hear a lot of hope that at some point the courts will find a remedy for this mess.

Free culture objections to the very idea of legal action on infringement sound an awful lot like issue avoidance. We all want to know if lines have been crossed here. Why don't we let our legal machinery work the way it's supposed to?

Why the rush to judgement, free culture?

* For the record, the actual court documents filed by Access Copyright are crystal clear about what is in dispute, and it has nothing to do with any theoretical definitions of fair dealing (as suggested by both Geist and CAUT):
Effective September 1, 2011, the defendant represented to the plaintiff that it was no longer making or authorizing the making of any non-exempted reproductions of copyright-protected works within the Repertoire. The defendant asserted that the terms of the Approved Tariff were not applicable to its activities. No further royalties were paid by the defendant to the plaintiff for any period subsequent to that date. Thus, as and from September 1, 2011, all acts of reproduction of copyright-protected works within the Repertoire by Educators and the defendant’s students have been unlicensed and not in accordance with the terms and conditions of the Approved Tariff... 
As particularized in Schedule “B” herein, more than one Educator has, on and after September 1, 2011, reproduced, in whole or substantial part, and authorized the reproduction by students and third party copy-shops, in whole or substantial part, of more than one copyright-protected work within the Repertoire.
Maybe we should all reserve judgement until the court weighs the evidence?

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(image courtesy Access Copyright)


Janet said...

Well I just hope this doesn't get settled. Certainty would be the best outcome.
Unfortunatley, how many years will we have to wait as this meanders through the court system?

Matt Lonsdale said...

The lawsuit absolutely has to do with the theoretical definition of fair dealing.

At paragraph 13 of the State of Claim, they state that "The Approved Tariff does not obligate any person to pay royalties to the plaintiff unless that person is making or authorizing the making of non-exempted reproductions of copyright-protected works within the Repertoire".

So right away there's an admission that if copies made fall within statutory exceptions (such as fair dealing), there is no obligation to pay royalties.

Later, at paragraphs 22-26, they argue that the Fair Dealing guidelines adopted by York authorize and encourage members of the York community to create copies which are "not encompassed within the fair dealing exemption under the Copyright Act".

I'm not making any predictions on the outcome of the case, or whether York's fair dealing guidelines will or will not be found to be authorizing copyright infringement. But to say that this case does not concern the "theoretical definition" of fair dealing simply isn't true.