All my life I have tried to behave well around librarians lest I be given a steely stare and be chided by the person on duty. I have tiptoed, suppressed coughs, and whispered in hushed tones. And generally, I have succeeded in avoiding reprimand. Until now.
Lorisia McLeod, Chair of the Canadian Federation of Library Associations (CFLA) is not happy with me, nor is Victoria Owen, Chair of the Copyright Committee of the CFLA. The source of their displeasure is an op-ed I wrote in July for the Globe and Mail (“Why We Need Copyright Reform Now”). In it, among other things, I stated that there was a need to narrow the overly wide “education” fair dealing exception introduced in 2012 that has led to Canadian authors and publishers indirectly subsidizing the post-secondary sector for more than a decade. As a result, writers have suffered a precipitous decline in income and fewer Canadian educational texts have been published. According to Ms. McLeod, my suggestion that the drastic decline in income for creators is related to the education sector’s refusal to negotiate reprographic licenses for copying hard copy and digital course material (under the pretext that the broader education fair dealing exception introduced in 2012 removes the need for it to do so), constitutes an attack on libraries that “needs to stop”.
When it comes to the payment of royalties by publishers to authors whose works have been licensed by libraries, she says “Copyright is not part of that transaction”. This makes no sense. I surmise she means it is a contractual issue, but contractual payments by publishers to authors are based on copyright, which confers the rights on the creator. While all contracts may not be identical, publishers who have licensed rights to a work share the licence fees with the author. For example, in the case of my recently-published book, “In Defence of Copyright”, I get a share of the revenue on each copy sold whether for hard-copy or digital works, with the payment for a digital copy amounting to fifty percent of the revenue that the publisher receives. But payment by publishers to authors is not the issue when it comes to the education exception.
The issue is an abuse of fair dealing, the user’s rights that are built into copyright law to provide limited permissionless access to copyrighted works for specified purposes and under specific conditions. McLeod refers to these as a “sliver of balance” offering limited rights to users. At the present time, some $200 million in uncompensated copying in the educational sector is in dispute. Some sliver! The “limited rights” she refers to have been turned into paper and digital course packs comprising significant portions of works that authors and publishers have produced, predominantly for the educational market, all without a nickel of payment for copying these materials, under the guise of educational fair dealing. And guess what? In many cases, the educational institutions charge students for these course packs through the university bookstore.
McLeod states that “Libraries purchase access to content including books, periodicals, and data and pay publishers hundreds of millions of dollars each year to provide students with digital access to these works.” Yes, they do. That is not in question. But as the Writers’ Union of Canada, supported by ten other copyright, authors and publishers groups, stated in a response to the CFLA statement, (“CFLA Statement Contains Damaging Inaccuracies”);
“In no way do current subscription, transactional, and access fees paid by libraries offset or excuse the massive amounts of unlicensed copying that happen every year elsewhere in Canadian education because of the misinterpretation that fair dealing permits such copying. Such use requires a license, and that license is currently not being paid.”
The basis of McLeod’s argument, amplified in a recent podcast hosted by well-known copyright critic Michael Geist of the University of Ottawa, featuring CFLA’s Victoria Owen (mentioned above), is that there is no need to acquire a blanket reprographic licence from the copyright collective, Access Copyright, because most works today are in digital format and libraries gain access to these works through digital licences. But do licences that provide access to a digital work and, in the case of libraries, lending rights as well, also allow for reproduction? Victoria Owen is categorical that they do. “Reprographic[i] permissions are bundled into the licences” (Podcast at 23:40). That is no doubt true in the case of some publishers, particularly the larger ones, but by no means do all publishers, especially smaller Canadian publishers, offer reprographic rights when they license digital content to a library. In situations where reprographic rights are included, students have full online access to those materials, so they seldom show up in paper course packs or uploaded on learning management systems. What does show up in course packs and on learning management systems are individual works, older materials, and other content that is not licensed in the manner alleged. Moreover, a licence to service a specified number of users at any one time is not a blank cheque for unlimited unlicensed digital copying of works or excerpts of works as is currently the case on most university campuses.
If “the market has changed”, to again quote Owen from the Geist podcast, and there is no unlicensed reproduction of materials in Access Copyright’s repertoire, why are the universities so opposed to submitting their case to fair examination and adjudication through the Copyright Board of Canada? Instead, they prefer to hide behind an expansive definition of education fair dealing to justify opting out of collective licensing for the considerable unlicensed copying they still resort to.
Owen goes on at length about user rights, clearly taking delight at the progressive dismantling of copyright protection for creators that has occurred in recent years. We all know that creator rights are not absolute and there is a balance in the form of user rights. Where that balance lies, or should lie, is a legitimate topic for debate, but in the eyes of many creators the scales have been unduly tilted in favour of, not users (i.e. students), but rather institutions who because of tight budgets are happy to cut costs by taking a free ride through a unilateral interpretation of fair dealing. They cannot escape direct licensing fees for digital works that in many cases have replaced book purchases, so they don’t, but if they can invoke an expansive definition of fair dealing to avoid payment of fees for reproducing all the other works in their holdings, current and historical, hard copy and digital, they will.
The CFLA statement further muddies the waters by confounding the situation of public libraries with those in the post-secondary sector, where licence terms differ. Public libraries continue to have large physical holdings and continue to acquire physical books along with e-books. That is understandable as there continues to be a strong public demand for books—books you can hold and take home. Just look at the still vibrant business model for independent bookstores alongside online platforms like Amazon and Indigo. And users often want to photocopy information from these books which explains why public libraries continue to have “paper only” comprehensive reprographic licences with Access Copyright. The copyright collective also offers reprographic licences for digital content.
Victoria Owen is right about one thing; rights-holders are trying to reclaim ground lost–to an unnecessary and excessive widening of educational fair dealing–and are seeking to restore some balance. She argues that it was really several court decisions, such as CCH v Law Society in 2004, not the 2012 legislation, that undermined the collective licensing model. While court rulings can indeed change the legal landscape, it is legislation that ultimately determines the law. Courts interpret the law, but if they get it wrong, Parliament can clarify its intent through legislative change. That is what authors and publishers are now seeking. The 2012 amendments that included education as a fair dealing exception went too far. Research and private study were already accepted fair dealing exceptions. The addition of education allowed institutions to substitute themselves for their students in proclaiming a user right. The solution, proposed by the Heritage Standing Committee report, Shifting Paradigms (Recommendation 18), is eminently reasonable.
“That Government of Canada amend the Act to clarify that fair dealing should not apply to educational institutions when the work is commercially available.”
This tweak would not eliminate education as a fair dealing exception but would limit it to the unlicensed reproduction of copyrighted works by educational institutions when, and only when, no commercially available alternative (that is, content available through licence) is available. This would include the digital reprographic licenses that the CFLA claims libraries are obtaining directly from some publishers as well as a blanket hard copy and/or digital licence from the copyright collective for use of works included in the repertoire.
Fixing the education fair dealing exception by narrowing it in this way is needed to restore fairness and balance in the market. It would also be an important step in helping stem the decline in incomes of our creative sector. While other means to increase incomes to writers mentioned by the CFLA, such as expanding the Public Lending Right or the Canada Book Fund are not mutually exclusive to fixing the fair dealing free riding problem, it is far better to have a market-based solution to guarantee a vibrant creative sector than to rely on various forms of government hand-outs, welcome as they may be.
The CFLA is crying foul, but they need to look at themselves in the mirror and ask what is really going on. The sector of the library world represented by post-secondary institutions in English Canada (noting that Quebec institutions have agreed to continue their licences with Access Copyright’s Quebec counterpart, Copibec) is exploiting the ambiguity of the education exception to throw Canadian authors under the bus. How is that in the “public interest” that Victoria Owen talks so much about?
The relationship between libraries (and librarians) and writers and publishers should be mutually supportive. They have a complex but mutually dependent relationship. No authors means no books, digital or otherwise. No books means no libraries, or librarians. A few years ago, a Canadian publisher, Kenneth Whyte, accused libraries of “pimping free entertainment to people who can afford it”. As I noted in a blog post that I wrote at the time (“Are Libraries the Enemy of Authors and Publishers?), the Association of Canadian Publishers (ACP) was quick to distance itself from Whyte and his accusations. The Executive Director of the ACP stated that “Canadian publishers recognize that libraries are an important part of the reading ecosystem and a primary channel for book discovery….Library sales are also an important part of the publishing business model” . As for the CFLA, it will claim that it supports writers but then go to great lengths to undercut a fair market model for content.
I started this blog by talking about being chided by librarians. I accept that some in the library sector have a different view of the value of copyright than I do. They seem to rejoice when copyright is weakened, and exceptions widened. I don’t. I want to see a fair balance restored. All writers, myself included now that I have published my book “In Defence of Copyright” (which I hope will become a useful reading for students of creative writing, film-making, music performance and composition and, yes, library science), recognize the necessity for prescribed exceptions to copyright. We build on the work of others, using citations, references and so on. But we don’t appropriate the work of others to teach the next generation of creators by copying without fair compensation.
So, while I have always been respectful toward librarians and the library setting, creeping around quietly and following the rules, this time I am going to stand up and loudly shout, “Enough. You know damned well what is going on. The obfuscation needs to stop!”. The specious argument that authors are not getting paid by publishers, or that the growing use of digital content eliminates the need to pay for the massive amount of unlicensed copying that takes place on Canadian campuses—promoted by the CFLA and amplified by copyright minimalists like Michael Geist—are smoke-screens that need to be called out. The legislative fix that is needed to restore balance to the system is clear and has been recommended by an all-party Parliamentary committee. Now, Parliament and the government need to move.
© Hugh Stephens, 2023.
[i] Reprography is a form of reproduction, i.e. the duplication of a published graphic image or text. The word derives from the combination of two words: “Reproduce” and “Photography.”
Reprography produces a facsimile of a published graphic image or text using mechanical or electronic means, for example by the following processes:
5. Electronic transmission, such as faxing
6. Electronic storage in databases
The exact definition of reprography varies from country to country, but essentially it boils down to making a copy by mechanical or electronic means of an existing image or text.