massaging the message

One of the things I find most interesting about the copyright debate is seeing my position(s) defined for me by others. I read an awful lot of assertions like Degen believes such and such, and he's wrong because...

Recently, I've learned from others that I fully support Bill C-32, that I favour a late 20th Century model of creator’s rights, that I want content locked up against fair dealing, that I support censorship, and so on. Step into this debate and you could spend so much time defending yourself from ridiculous assertions, your actual opinion may never be heard.

Which, I guess, is the point.

So, yesterday I reported about Access Copyright's legal victory at the Federal Court of Appeal, and about their concern that this win for creators could be cancelled out by ill-defined changes to copyright law. I wrote "the introduction of an overly broad exception to copyright for educational use would all but eliminate fair compensation for this established use."

Bill C-32, the federal government's Act to Amend the Copyright Act does indeed contain new educational exceptions, and they are not defined as clearly as many creator groups, Access Copyright and I would prefer. If interpreted in an overly broad manner, they could provide a legal leg-up for the kind of tariff challenge Access Copyright has just finished defending. I am certainly not the only one who thinks this way. Lawyer and publishing consultant, Gary Rodrigues, writes:

"Based on an amended Copyright Act, the Ministers of Education might ask for a review [of] the new tariff before it is fully implemented."

I have mentioned my own concern about overly broad interpetation, informally, to both federal ministers responsible for C-32 (on Twitter!) and have been reasonably assured definitions will tighten up through committee work. I think that would be a great outcome, and I have hope that this recent Court of Appeal ruling will help with the tightening process.

Today, I am informed by the prominent consumer advocate, Michael Geist, that my concerns about an overly broad exception to copyright "bear little relation to reality," and that the recent Court of Appeal ruling proves I'm worrying for nothing. Well... good, then. I hope Dr. Geist advocates strongly for that interpretation at the C-32 committee.

But wait, I'm mistaken -- Dr. Geist actually wrote "fears that the extension of categories will wipe out all revenues bear little relation to reality." I see the problem. When I wrote the introduction of an overly broad exception to copyright for educational use, Dr. Geist read the extension of fair dealing categories.

Of course these two things are NOT the same, nor did I ever mean for them to be. I have called for better definition around fair dealing for a long time (in my copyright consultation submission, for instance), and am happy to talk about category extension - I think parody, for instance, is an important freedom. Yet somehow, I find myself prominently advocating a position I do not hold on this country's central site for consumer-focused copyright discussion. And this... let's call it a misunderstanding... is, I guess, how the copyright debate maintains its momentum.

Meanwhile, three comments into the discussion of my newfound opinion on Dr. Geist's blog, we find this gem:

"I just don't get the need to be compensated for ones work being used to teach kids or others. If I had a school teacher pick up my work and use it to teach kids about the world I'd be more then happy to see my work get used for free. Why the hell could you not want that?"

Clearly, concerns about overly broad exceptions to copyright are completely unfounded. I will stop worrying.

an education in educational use

Sifting through all the copyright commentary out there on the net, I came across an account of Dr. Michael Geist's recent presentation at the University of Calgary. A video interview of Geist in Calgary is available on the Fair Copyright Facebook group, and some net sources, probably his own website included, have his entire talk on video or audio file. Go wild.

Me, I'm a reader, so I dug into the blogs and came up with this very interesting account and analysis from one D'Arcy Norman, who appears to be a thoughtful and committed advocate for open source/open content. Mr. Norman attended the Geist presentation, and has complimentary things to say about it. And then he relates an anecdote about listening to others interpret what they've heard. He writes:

Walking back from the presentation, chatting with two unnamed faculty members. They were saying how eye-opening the session was, and how they had no idea that Fair Dealing was as useful and potentially as flexible as it sounds like it is. How great, that they can go ahead and scan books as PDF and post them in their courses in Blackboard.

Scan entire books as PDF, and then use them as unlicensed course material for tuition-paying students in a publicly funded institution? Is this a potential new practice Michael Geist is advocating for under expanded fair dealing? I can't imagine it is. Does it sound fair to anyone out there?

Norman goes on to register his own extreme discomfort with what he was hearing. His perspective is totally open content, which is not always my own, but I think our core values in this discussion are the same:

First and foremost, we need to model ethical and appropriate use of copyrighted materials. Hiding copyright infringements behind the Blackboard login is not good enough. You have to realize that you’re modeling this infringement for your students to see. “It’s OK to infringe on copyright, because The Man can’t see, right?” “uh… if Dr. Whatsisname could do it, why can’t I?”

Norman sends his readers to the University of Calgary's copyright policy for classroom use, which in itself is an education.

Under Print Materials that need to be scanned, they have this:

Discretion must be used in deciding what amount of a work can be copied as a fair dealing.

Ordinarily requests to use one article from an issue of a journal; one chapter from a book; or no more than 10% of a collective work such as an anthology will be recognized as a fair dealing.

... which clearly does not recognize a fair dealing that would allow unlicensed PDFs of entire books. Yet under Digital Material, the policy states it will allow use if:

- The material is available on the open Web, and the Library can provide a link to it.

... which sounds to me like the University of Calgary has an acting Publicly Available Material exception already in place. Note there is no mention of the copyright status of the material on the open Web, only that it is available.

So, a physical book that anyone can take out of any library cannot be scanned and used digitally in its entirety because of a recognized limitation under fair dealing. That same book available on the Internet (just as it is in a library), yet still protected by the same copyright law that determined UoC's fair dealing policy, is suddenly fair game as publicly available material.

So much respect for working creators as long as they kill trees; so little respect as soon as they hit the web.