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

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.