Canadian Literature in Canadian Schools and the Duration of Copyright Protection (Don’t Mix Apples and Oranges)

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If you are fundamentally opposed to any consideration of extending the term of copyright protection to benefit authors and creators, and if you are sufficiently creative in twisting logic, then you can find justification for your position just about anywhere. This is exactly what Michael Geist has done in taking a study released by the Ontario Book Publishers Organization (OBPO) on the lack of Canadian literature in Ontario classrooms and using it to try and argue that it proves his case for opposing any extension to the term of copyright protection. He is trying to put a round peg in a square hole.

In August of this year the OBPO released a study arguing that there are not enough books by Canadian authors used in the province’s high school and middle school classrooms. A survey was conducted of the top ten books most frequently used in school English classes and none of them was by a Canadian author. In the top 20 there were three Canadian titles—and six works by Shakespeare. This is not a new issue. A quick online search reveals the same complaint back in 2010 when Susan Swan, former Chair of the Writers’ Union of Canada asked why more Canadian books were not being taught in schools. She answered her own rhetorical question by offering five reasons; (1) in Canada education is a provincial matter so it is difficult to establish a national curriculum; (2) budget cuts to education, leading to English departments using old texts (by foreign authors) rather than buying new books (presumably by Canadian authors); (3) lack of exposure to Canadian literature in teacher training colleges; (4) redefinition of “text” to include “a wide variety of writing, including newspaper ads, Facebook and posters, leading to a decline in the use of books; and (5) the fact that the choice of books is left to individual teachers and school boards to choose from a set curriculum list. Not all teachers are interested in Canadian Literature, or CanLit (back to point 3).

This problem, if indeed it is one, has been around for quite a long time. The 1951 Royal Commission on the National Development in the Arts, Literature and Sciences (Massey Report) decried the paucity of Canadian literature. If I can remember way back into the last century when I was in high school, the only Canadian author I can actually remember reading was that old stalwart Stephen Leacock. Maybe CanLit wasn’t as good back in the day, or maybe my teachers felt that making us read Shakespeare, Shelley, Keats, J.D. Salinger, Charles Dickens, Mark Twain, Jane Austen, and John Steinbeck was a good enough exposure to great literature. There are many reasons cited for a low exposure to Canadian literature in schools including those outlined by Ms. Swan in 2010. A fairly recent analysis of the issue pointed to other factors as well; a feeling by some that Canadian literature was generally not of high enough quality and that one should stick with the classics, concern that novels that pushed the limits of social acceptability might offend some parents, and of course the ever-present lament about funding; reductions in government-funded book support programs to subsidize Canadian publishers.

So, in short there appear to be many systemic reasons why more Canadian books are not used in schools. But what has this got to do with the length of copyright protection in Canada? Not much, unless you are a contortionist of logic.

The books that are used in schools are a combination of publications in the public domain, like Shakespeare and 19th Century authors, and books that are still under copyright protection. According to the OBPO study, public domain books constitute about 20% of the 100 most popular works used in school literature programs, or 13% if the full range of the 695 books that were surveyed is included. All the rest—over 80%–are still under copyright protection in Canada. Therefore it seems that being in the public domain, or not, is hardly a relevant factor in deciding whether a book is to be used for teaching. Despite the fact that the vast majority of books that are currently being used are copyright protected, Prof. Geist somehow manages to draw the conclusion that,

“despite efforts by some to dismiss its value, the widespread use of public domain works within Canadian classrooms underscores its continued relevance… it reinforces how many of the works used in classrooms fall outside of current copyright protection and not are not subject to licence fees or royalties.”

Prof. Geist admits that many popular titles in use today will not enter the public domain for another 20-25 years under current Canadian copyright law, but then goes on to argue that these works would be directly affected if Canada agreed to extend its term of copyright protection as part of the NAFTA negotiations (or for other reasons).

“Within Canadian classrooms, dozens of books scheduled to enter the public domain would be shut out for decades. These are books that are used by thousands of students today.”

It is self-evident that if the term of copyright were extended by 20 years, as has been done in the US and EU, and a number of other countries (over 60 world-wide), books that would enter the public domain in Canada 25 years from now would not do so for 45 years. This is a mathematical fact. However, what is important is whether or not this will have any material difference on educational opportunities in Canada. There not a shred of evidence to conclude that this is the case. Opponents of term extension will use any argument they can find to oppose it, such as the silly and unfounded arguments used by the executive of the Girl Guides of Canada to argue that a term extension of 20 years would damage the Guiding movement.

It is hard to conclude that if the vast majority of books in current use are copyright protected, somehow dragging more of them into the public domain is going to change any educational outcomes. In fact, if we go back to the basic premise of the OBPO study, that there are insufficient Canadian works being taught in schools, it is highly unlikely that any new Canadian works that are introduced into schools in the next few years will be in the public domain for a very, very long time. Most of the best known current Canadian authors (Alice Munro, Margaret Atwood, Yann Martell, Joseph Boyden, and apologies to those I didn’t name) are, happily, still alive and thriving. It will be decades before their works enter the public domain, but an extension of the term of protection now would enhance the value of their work when negotiating with their publishers, putting more money into the pockets of the creators we want to encourage.

But Prof. Geist argues that term extension will have a negative impact on students and on the Canadian economy. To support his conclusions, he cites a widely discredited New Zealand study that calculated the loss to the New Zealand economy of extending the copyright term in that country by twenty years at “tens of millions of dollars per year” (Mr. Geist’s quote). The exact amount reported by the study commissioned by the New Zealand government was $55 million NZD annually, but as I reported last year, this study was fundamentally flawed. The study was reviewed by Dr. George Barker, Director of the Centre for Law and Economics at Australian National University who concluded that the 2009 government study contained an enormous mathematical error regarding the cost of music imports, while completely ignoring any upside benefit to New Zealand artists. (Had a decimal point been misplaced, he asks?). Dr. Barker concluded that when benefits for artists were added to the model, the result could well be a net benefit to New Zealand of up to $150 million per year rather than a net loss of $55 million.

The only reliable study on the costs and benefits of term extension done in Canada is more than ten years old. In that study Prof. Abraham Hollander of the University of Montreal concluded that the net cost to Canada (i.e. outflow of royalties) would be about $2.5 million annually. While an additional period of protection would mean a further period of indirect royalty payments by Canadian users to the rights holders of protected works residing outside Canada, extending the term of protection will also bring economic benefits in the form of increased economic incentives to Canadian creators. Among these creators are the Canadian authors whose work is apparently under-represented in Canadian schools.

Basic economics suggests that an additional economic incentive to writers will normally result in the production of more creative work. Not only will output increase, but royalties returned to Canada will also likely increase. This is because many jurisdictions, including the EU, apply a policy of reciprocity to the period of copyright protection granted. (e.g. the EU only gives Canadian authors the same period of protection in Europe that Canada grants to EU copyright holders). The 2005 Hollander study was not able to take account of the growing creativity of Canada’s artistic community over the past decade (Alice Munro’s Nobel prize being a good example), which suggests that any outflow of royalties could by now have been reversed as Canadian writers build their international reputation.

This leads us back to the original study by the OBPO. It didn’t draw any conclusions about use of public domain books in Ontario schools; Michael Geist simply hijacked their study to pursue his own anti-copyright agenda. However it is worth noting that the Ontario government is responding to the “CanLit crisis” by creating a fund to encourage home-grown publishers to produce supplementary materials for classroom use based on their existing titles (all of which, I am predicting, are copyright protected).

Let’s not mix apples and oranges. The low rate of usage of works by Canadian authors in Canadian schools is a legitimate issue to discuss. To extrapolate from that to argue that extending the term of copyright protection in Canada would be damaging to education and students is misusing and misinterpreting data to try to strengthen a weak argument.

© Hugh Stephens 2017. All Rights Reserved.

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