Why Are Canadian Universities Vehemently Campaigning Against Any Clarification of Fair Dealing if They Are Already Licensing All the Content They Need for Teaching?

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That is the fundamental question that authors and publishers in Canada have been asking themselves as the government begins preparing to consider some long-overdue revisions to the Copyright Act. For the past decade, Canadian post-secondary institutions (outside Québec) have been refusing to acquire licences from the Canadian Copyright Collective, Access Copyright (AC), to cover the reproduction of hard-copy and digital content in AC’s repertoire for use as teaching and reference materials for Canada’s approximately 1.6 million post-secondary students (not including Québec). This practice began after a couple of court rulings and the expansion of the definition of fair dealing by revisions to the Copyright Act in 2012 to include “education” as a specified fair dealing purpose. Is the opposition of the universities to any change in the interpretation of fair dealing because the nature of academic teaching has changed, and the materials used by instructors and professors no longer depend on the kind of content offered by authors and publishers through collective licensing, as some contend? Or is it because a loose and permissive legal interpretation and legislative definition of fair dealing has allowed the institutions to argue that materials they once paid for through licensing are now free for the taking? Are the majority of Canada’s post-secondary institutions continuing to free ride on the backs of Canada’s authors and educational publishers as represented by their copyright collective organization, or have they moved on to new forms of content which they license directly, not relying on fair dealing for teaching or research materials?

Michael Geist of the University of Ottawa, would have you believe it is the former and that changes in the market and new forms of licensing are the primary source of content for the universities. Therefore, he argues, there is no need to revise the definition of fair dealing when it comes to use of educational materials. But if that is so, and if universities no longer access or require the materials held by the copyright collective, why do they continue to refuse to engage in the licensing process which would ascertain (via an arms-length process conducted by the Copyright Board of Canada) whether, or to what extent, materials in AC’s repertoire were actually being used, and why are they stubbornly opposed to any clarification of fair dealing in the education sector? If they use so little of the content held by Access Copyright, surely it would be immaterial as to whether or not they were required to obtain a licence?

I would contend that the reason for refusing to license content from AC is not just because the post-secondary sector has decided to procure its educational content elsewhere but also because it has decided, on the basis of court decisions and the 2012 expansion of fair dealing, that they are entitled to help themselves to materials they previously accessed under licence and paid for. The post -secondary sector hors Québec is refusing to negotiate with Access Copyright for content licences because it can, not because it has moved on and now depends on other sources for its teaching materials. That is why Parliament needs to fix the loophole in the law, regardless of whether or not universities are spending more on direct digital licences than they once did.

Prof. Geist has just published a series of blog posts to mark Fair Dealing Week last month (here is my own contribution to that week) with a common theme of attacking the arguments put forward by, among others, the Writers Union of Canada and the copyright collective Access Copyright, to the effect that unlicensed copying of works from AC’s repertoire has undermined the educational publishing market in Canada, and been a major contributor to the ongoing decline in income levels for writers. According to a study done in 2018 by the Writers Union of Canada, the average income for a writer in Canada declined by 27% in just the three years from 2014 to 2017, shortly after legal and legislative changes were made to widen Canada’s fair dealing regime. If you accept the argument that authors are still being paid, but through alternate routes such as digital site and transactional licences, then one would expect income levels to grow as direct digital licensing has grown. That hasn’t happened. Direct permission requests (not via the copyright collective) and associated revenues to Canadian publishers have also gone down.

Geist’s argument is based on the fact that post-secondary institutions continue to acquire licences for use of copyrighted material, and have increased their spending on direct digital and transactional licensing in recent years. He also points to the increasing use of “open textbooks”, teaching materials often commissioned by educational authorities to be governed by open licences. This, he argues, marks a shift away from hard-copy course packs and  makes the content that Access Copyright offers irrelevant.

I won’t argue with the numbers he presents in terms of what universities are currently spending on digital and transactional licences, (although they are anecdotal and I suspect there is a selective use of such data to prove a point), nor on the transition from hard copy to digital books, but there is a major disconnect between the “facts” he presents and his conclusions. The “we’re spending more on other content so we don’t need yours” argument is a total red herring. It is not a question of what universities are paying for; rather it is a question of what they are not. Moreover, the content they are currently licensing and the content they are taking under the guise of fair dealing is by and large, not the same. It looks to me like they are robbing Peter (authors and publishers who depend on royalties through collective licensing) to pay Paul.

There is no doubt that a transition is occurring in campuses all across North America, and elsewhere, away from hard copy to digital content. Anyone who has taught a course in the last ten years is more than aware of this. The first place for students to search for information is the internet, and only then the university library. The library is now a virtual repository of huge amounts of digital content, from e-books to journals. The proliferation of online learning, accentuated by the COVID pandemic, has fundamentally changed the nature of teaching for many institutions. But books have not disappeared. Hard copy books are seldom checked out of libraries or purchased at the campus bookstore, although some still are. Much more likely, however, is digital access to the work. As the student body has grown and as the trend from hard copy to digital content has taken hold, one would naturally expect that more would be spent on the acquisition of digital materials. This is indeed the case. However, it is far from a zero-sum game where every dollar increase spent on direct digital licences means a dollar less spent on materials that used to be covered by licences from Access Copyright. AC also licences digital content and e-books. Access Copyright currently has affiliation agreements with approximately 700 publishers and 13,000 authors and bilateral agreements with over thirty collective management organizations covering thirty jurisdictions (including the US, UK, Australia, and New Zealand). Overall, the repertoire consists of hundreds of millions of works. It is inconceivable that post-secondary institutions in Canada would not need to access this repertoire.

The real reason for refusal to licence content is the unilateral decision taken by Universities Canada, after several court cases and changes to the Copyright Act, that large portions of content–previously licensed by Access Copyright (such as ten percent of a work, one article in a newspaper, one chapter in a book, etc)—would now be considered within the parameters of fair dealing. Even though the actual determination as to whether these guidelines are consistent with fair dealing has not been decided by the Courts, the universities outside Québec have managed through the courts to undermine the principle of collective licensing and continue to refuse to obtain Access Copyright licences. Yes, libraries may continue to increase spending on content acquisition and licensing, increasingly focused on digital materials, but to suggest this is the reason they have stopped licensing educational content from AC for use in course packs, digital or otherwise, is to ignore the reality of a permissive legal regime that has allowed this to happen. When the Copyright Act was amended in 2012, did Parliament intend to give one commercial sector (the “education industry”) a free ride at the expense of another (authors and publishers), in the process destroying the Canadian educational publishing sector and removing incentives for the continued creation of Canadian content? I doubt it. Fortunately, there is a reasonable solution.

Authors and publishers have proposed an amendment to the Copyright Act that would clarify that payment is required for unlicensed reproduction by educational institutions where licensed alternatives for content exist. This is what is done in the United Kingdom. Students could still exercise their fair dealing user rights, but the free ride for universities and colleges would end. They would be required to license content either through the rightsholder or a collective, if they wish to use it, when that content is commercially available. If they are already licensing everything anyway (as Michael Geist would have you believe), why is this problematic?

The ferocity with which educational sector is attacking these proposals surely indicates they know full well the extent of the free-riding that is taking place at the expense of authors and educational publishers. It has even descended to some pretty offensive name calling. Stephen Spong, Director of the law library and copyright officer at Western University has accused those seeking changes to the Copyright Act of “goblin mode gaslighting”. In case you are not familiar with that term, Spong defined “goblin mode” as “a type of behavior that is unapologetically self-indulgent, lazy, slovenly, or greedy, typically in a way that rejects social norms or expectations” and “gaslighting” as “grossly misleading or deceiving someone especially for one’s own advantage”. If that is how the copyright officer at one of Canada’s leading universities regards Canada’s authors and publishers who are trying to earn a just return for the unlicensed use of their copyrighted materials, then there is something seriously wrong with the appreciation of the academic sector for the contribution made by creators to the educational ecosystem. In fact, it is downright insulting. Spong first published his attack in a regional newspaper and then in an “inside Ottawa” journal (so perhaps they weren’t read that widely) but then became a podcast guest of Dr. Geist to ensure that his message was given wider circulation.

If it is self-indulgent, lazy, slovenly, greedy and grossly misleading to suggest that Canada’s post-secondary sector should pay fairly for copyrighted materials they use in course instruction, then I plead guilty! The red herring of alternate licensing must not be allowed to obscure the fact that the ill thought-out changes to the Copyright Act in 2012 have been largely responsible for the decimation of Canada’s educational publishing sector and fair incomes for many authors engaged in the production of such materials. If it is true that the hundreds of millions of works held in the repertoire of Access Copyright are no longer relevant, then the post-secondary sector should have no concerns about submitting to a licensing process that would determine the facts of this assertion. In fact, the content is in constant use. It’s just that Canada’s post-secondary institutions outside Québec want to be able to continue to use large portions of AC’s repertoire without any payment, a situation made possible by an excessive widening of fair dealing and weakening of remedies available to rightsholders in 2012. We have had more than a decade to see the damage and injustice this has caused. Now is the time to reset the pendulum back toward the centre.

© Hugh Stephens, 2023. All Rights Reserved.

“The Declaration on the Essential Role of Artists and Creative Expression in Canada Act”: Will it Become Law?

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Last fall, in October, the Canadian Senate gave Third Reading to Bill S-208, The Declaration on the Essential Role of Artists and Creative Expression in Canada Act”. That legislation, sponsored by Senator Patricia Bovey, a distinguished art historian by profession, (former director of the Winnipeg Art Gallery and the Art Gallery of Greater Victoria, Adjunct Professor of Art History at the University of Winnipeg, and the author of a new book to be released later this month, Western Voices in Canadian Art), was then sent to the House of Commons where it was introduced by a Member of Parliament, Jim Carr, and given First Reading there. To become law, it must also successfully undergo three readings in the House, receive Royal Assent (a formality) and eventually be “proclaimed” in order to become an Act of Parliament. What does the Declaration cover, how likely is it that it will become law, and what would be its impact if it did? Let’s unpack these various questions.

First, the ten-point Declaration itself. Here is its full text, contained in an annex to the Bill.

Declaration on the Essential Role of Artists and Creative Expression in Canada

1. The essential role and contribution of the arts, culture and heritage to the health and the social and economic well-being of everyone in Canada, including all aspects of social justice and reconciliation, is hereby recognized and affirmed.

2. Everyone in Canada, including artists, has the right to freedom of expression and association, especially on issues and at times of public debate.

3. Canadians and residents of Canada of all ages, cultural diversities and backgrounds have the right to know and participate in their artistic memory and collections and in their material and built heritage, which together define our histories and experiences and our individual and community traditions.

4. People in Canada of all cultural diversities and backgrounds have the right to take part in the arts through access to and attendance at artistic events, including music, literature, drama, visual arts, film, dance, theatre and all performing arts.

5. People in Canada of all ages, including children and youth, have the right to engage in artistic creativity and the expressive arts, including the right to learn and acquire the knowledge and the creative processes and skills needed to play a musical instrument, draw, dance, compose, write, design or otherwise live a life of creative innovation.

6. Artists have the right to the intellectual property in and copyright for their work; to be free from cultural appropriation; to equity in employment and to economic security; and to be accorded recognition for the value of their work, which is integral to our nation’s economic health.

7. Artists in all disciplines have the right to earn a prominent presence in public life through their art — including public art presentations — and to the incorporation of their voices and artistic visions in democratic debate.

8. Canadian artists have the right to be represented to the rest of the world, and the public has the right to know about and explore art through the ages from all parts of the globe.

9. Artists, arts organizations and production companies in Canada have the right — and should have the arm’s-length support and capacity — to take risks and invest in creative innovation while serving communities and the public interest.

10. Everyone in Canada, including artists, has the right to be free from discrimination, including racism, ageism and all stigmas, and artists, including those with disabilities or those who are deaf, have the right to barrier-free physical access to places and spaces to create, perform and present their work in both behind-the-scenes spaces and on stages and in galleries, museums, studios and practice spaces, and through online and digital opportunities.

There is a lot to digest there. What are the key takeaways? The Declaration talks a lot about “rights” but generally speaking rights are enshrined in the Charter of Rights and Freedoms, which in most instances overrides legislation. Put another way, legislation must be consistent with the Charter. As far as I can tell, the Declaration meets this test although it does not add any additional rights. What the Declaration does do is to recognize the key economic and cultural role the arts play in Canada’s economy and society. The rights to freedom of expression and association are affirmed along with the right to participate in artistic creativity and endeavours through learning and acquiring skills. It further notes the importance of intellectual property and copyright and recognizes the economic struggles that many artists face in earning a living from their work. There are other points too that you can read for yourself—freedom from discrimination and racism, having artists voices included in public debate, etc. In fact, if this Declaration became the guiding rule for artists and creators, (as Louis Armstrong loved to sing), what a wonderful world it would be!

As a statement of broad objectives and support for the arts, the Declaration is a laudable piece of work. But if it passes, how is it intended to be implemented in the real world? The Bill requires that the Minister for Canadian Heritage consult with various other federal ministers (Labour, Indigenous Relations, Justice, Health), provincial governments, the Canada Council for the Arts (funding agency), the Official Languages Commissioner, artists and organizations whose objects include promotion of artists and the arts, French-speaking artists and organizations representing those artists, artists who represent the ethnic and racial diversity and all other diversities of Canada and organizations that work on their behalf, First Nations, Inuit and Métis artists and organizations representing those artists, and, in case anyone felt left out (which is hard to imagine given the inclusivity of the list), “all other interested persons or organizations that the Minister considers appropriate”. The point of all this consultation is to develop an Action Plan, within two years of Proclamation, to implement the Declaration. How that is to happen is left to those named although as part of this planning, a conference of stakeholders is to take place within six months of the passage of the Bill. This is no small task, especially considering the interdepartmental and intergovernmental nature of many elements of the Declaration, not to mention a certain degree of non-specificity with respect to many of the “rights”.

This is why this Declaration, welcome as it is as an aspirational target, is unlikely to become the law of the land. There is really nothing in the Declaration that a reasonably minded person could object to, but this is also part of the reason that it will almost certainly remain a hortatory call to arms rather than a concrete plan of action. As a private member’s bill (i.e. not one proposed by the government), it has no budget attached. It cannot create a spending authority without government sponsorship, although this could happen later in the process if the government decides to support the Bill. However, this is most unlikely to happen as the aims of the Bill are so broad that specific action flowing from them would be difficult to define.

Even if the Declaration had the force of law, to whom would it be applied? Would the “the right to learn and acquire the knowledge and the creative processes and skills needed to play a musical instrument” mean that a local school board that decided to terminate or scale back its music program in order to save money and meet its budget (as happened recently in Victoria, BC, where I live) would be prevented from doing so? That won’t happen. Education is a provincial responsibility, and local school boards are given considerable autonomy in setting their budget priorities. Would the right of Canadian artists “to be represented to the rest of the world” mean that the Canada Council or some other organization is obliged to provide financial support for overseas exhibitions of Canadian art? Overseas exhibitions will continue to be supported for various reasons but not because of any inherent right on the part of artists. Does the “the right to take part in the arts through access to and attendance at artistic events” mean that it is your right to attend even if you don’t have a ticket, and that you have a “right” to buy a ticket? (Taylor Swift fans would love it). I don’t think so. You get the idea. These are declaratory rather than legal rights.

When all is said and done, realistically this legislation is very unlikely to have any greater chance of success than most private member’s bills, which is to say, little to none. Another obstacle is that it needs to find a new sponsor in the Commons, a task made more difficult by the untimely passing of the MP who sponsored the Bill’s First Reading in the House, the Hon. Jim Carr. (First Reading is essentially a formality. It is the Second Reading, Committee Review, and eventual passage at Third Reading that really counts). If getting privately sponsored as opposed to government sponsored legislation passed is such a heavy lift, why do we have private member’s bills within the Parliamentary process? Many Members of Parliament or Senators want to advocate for their beliefs and causes and choose to use privately sponsored legislation as a means to do so. And on very rare occasions, where a private bill attracts government support, it sometimes even passes. Private members’ bills are a useful part of the Parliamentary system, providing a good platform for the socialization of ideas and initiatives, even if they never become law. The idea of a Declaration dedicated to artists and creators is one such example.

The arts and cultural industries play key economic roles in many countries, and this is often under- appreciated. For example, the Ontario Arts Council estimates that Ontario’s arts and culture sector represents $28.7 billion or 3.5% of the province’s GDP and 301,495 jobs. For Canada, the figure is estimated to be close to $60 billion, larger than that of agriculture, forestry, fishing and hunting, accommodation and food services and eight times larger than sport. The figures are similar in other countries. In the US the percentage of GDP generated by the arts and culture sector is 4.3%, and with the enormous size of the US economy, that translates into economic impact of over $900 billion and 5.2 million workers. In the UK arts and culture contributes £10.8 billion to the UK economy. A broader definition that includes film, TV and music brings the total to £32.3 billion (and that was in 2018). But, of course, it is not just economic impact that counts. Arts nourish the soul of the nation. Culture fosters identity and encourages expression. If “The Declaration on the Essential Role of Artists and Creative Expression” makes the role of artists and creatives more visible and respected, that is a good thing, even if Senate Bill 208 never becomes law.

© Hugh Stephens 2023. All Rights Reserved.

Google’s Threat to Block Canadian News Search: Will Its Intimidation Tactics Work?

Google is at it again. It has confirmed it is temporarily blocking some Canadian users from accessing news content through its online search function. According to the company, this is part of “product testing” in response to the Canadian government’s move to enact legislation, known as the Online News Act (Bill C-18), that would require Google to reach content deals with Canadian news media when it makes their content available on its platform. Facebook is also targeted by the legislation. This is part of Google’s strategy to push back against the impending legislation, which is currently undergoing review in the Senate. Both Heritage Minister Pablo Rodriguez and Prime Minister Trudeau have spoken out against Google’s actions, with Rodriguez saying that Canada will not be “intimidated” and Trudeau calling Google’s actions a “terrible mistake”.

Recall the long saga of Google’s struggle against the Australian government when that country moved to establish its News Media Bargaining Code which would require “designated digital platform services” enjoying “a significant bargaining power imbalance” with respect to news businesses (read, Google and Facebook) to reach agreements with Australian news content providers to compensate them for the inclusion of news on Google’s and Facebook’s platforms and services. Google fought back tenaciously, threatening at one point to leave Australia as part of a lobby campaign to get Australian consumers to pressure their own government to back off. It didn’t work. In the end, in the face of firm resolve from the Australian government, both Google and Facebook managed to reach content deals with Australian media that enabled them to avoid being designated under the Code.

Google has played this game before to stop governments from requiring it to pay for access to news content, starting in Germany and later in France. In Germany, Google removed from Google News the content of German publishers who had sued it for ignoring a new law requiring payment for news content, announcing that it would allow publishers to opt back in only if they waived their right to compensation. The publishers caved in and Google emerged triumphant, wielding its market power like a club. It similarly played tough in Spain when a similar law was passed, simply shutting down Google News in that country. In France, it was not so  successful as the French competition authority dug in and issued an order requiring Google to negotiate with French press publishers and news providers for payment for news content appearing in Google search listings in France. Google finally reached agreement with the main French publishers in early 2021 but at the same time continued its threat, first, to block Australian news content in Australia, and then to leave Australia altogether. Australians stood up to this blackmail.

Google hasn’t gone to quite the extent of threatening to pull out of Canada in the face of the Canadian government’s determination to bring in a regime similar to that of Australia’s. It has, however, resorted to some of the same pressure tactics, such as seeking to enlist the services of the US government to lobby on its behalf by having its tech industry proxy group, the Computer & Communications Industry Association (CCIA) argue that C-18 violates the US-Canada-Mexico (USMCA/CUSMA) trade agreement. I examined that allegation here. (Hint: it doesn’t). Not only is C-18 not in violation of the USMCA/CUSMA, there are US industry voices pushing for a similar regime in the US, as expressed in this recent editorial in the Seattle Times.  

There are those in Canada, such as University of Ottawa professor and blogger Michael Geist, who seem more than happy to amplify Google’s threats, noting that Google, among others in the tech industry, has been laying off workers and that the cost of reaching content deals with Canadian media is not chump change. I would turn this on its head. Because it is facing some new economic challenges, Google can hardly afford to cede its leading role in internet search because it is reluctant to find a way to strike content deals in Canada when it has been able to do so in Australia and France. Once C-18 becomes law, Google has two options. It can either strike deals with eligible news businesses in Canada (it has already reached agreement with some media outlets, like the Globe and Mail, and if it widens its net by reaching agreement with enough other outlets it could conceivably be granted an exemption), or it could comply by blocking all links to Canadian news content sites, in effect exiting the market for news search in Canada. When users search for Canadian news items, only results for US or other foreign providers would be accessible. As National Post journalist Bryan Passifiume, one of those “randomly” selected by Google to be blocked, has recounted,  it is not just Google Search that produces no results. When he searched for specific Canadian news items on various Canadian websites (CBC, National Post, Toronto Star) while in the Chrome browser, he got nil returns. One can’t help but wonder how Google has managed to select journalists working for major Canadian dailies as the victims of its blocking experiment, given that it is apparently targeting just 4% of its Canadian users.  

To stick it to Canadians would be a colossal blunder. That is not the way to maintain market share (and brand loyalty) in a G7 country which, while offering nothing like the size of the US market, is nonetheless the world’s 10th largest economy with a growing population approaching 40 million. As one well-known Canadian journalist has observed, Google (which is being sued for anti-competitive behaviour by the US Justice Department and was fined for the same practices in Europe) is doing this “because it can”. However, if Google were to decide to block access to news in Canada as its response to C-18, not only would it backfire in terms of its other business offerings in Canada, but its competitors, notably Microsoft and Apple, would be quick to take advantage of the vacuum.

It is worth recalling that when Google was engaged in its “stoush” with the Australian government, its main competitor in online search, Microsoft, stepped in with Brad Smith, its Vice Chair and President, explicitly endorsing the Australian proposal. Smith stated that should Microsoft achieve the kind of market dominance enjoyed by Google, “we are prepared to sign up for the new law’s obligations, including sharing revenue as proposed with news organizations.” As I wrote at the time (Google’s Tussle Over Payment for News Content in Australia: Microsoft Scrambles the Cards–With Positive Implications for Canada and Others, February 2021), the entry of Microsoft into the fray made it much more difficult for the US government to intervene on Google’s behalf, especially when both Microsoft and Google are large, powerful entities with significant lobbying clout in Washington.

But Google has more to worry about than just Microsoft encroaching on its dominant role in the Canadian market for online search. Microsoft is working to energize its previously lacklustre search engine, Bing, by the addition of AI capabilities through ChatGPT. The fact that Google’s rollout of its competing AI offering, Bard, was somewhat of a flop has given Bing an even greater fillip. It is way too early to predict whether Bing will be able to successfully challenge Google’s dominance in online search but for the first time in years it appears that Google needs to look over its shoulder. Taking on Canadian consumers, Canada’s news media and the Canadian government at the same time that this is happening is not a very good idea.

C-18 is not yet law. It could still undergo some minor tweaks in the Senate before it returns to the House of Commons for final passage. However, given the commitment that the Trudeau government has made to this Bill and to the Canadian news media, backed up by support from two of the three opposition parties, the chances of it going away because of Google’s bully tactics are nil. Google can comply by reaching deals with Canadian media or it can shoot itself in the foot by following through on its implicit threat to block access to Canadian news sites and Canadian news.

© Hugh Stephens, 2023. All Rights Reserved.

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