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Last month I wrote about the 200 year history of copyright in Canada, (Two Hundred Years of Copyright History in Canada: What a Journey!), drawing on a recent book by copyright scholar Dr. Myra Tawfik, “For the Encouragement of Learning: The Origins of Canadian Copyright Law”. That work outlined the genesis of Canadian copyright law in Lower Canada in the 1820s and 1830s, carrying through into the 1840 pre-Confederation period in the united Province of Canada (Canada East and Canada West). As Professor Tawfik pointed out, the motivation for the first copyright laws in what eventually become Canada was to incentivize the production of localized school texts. Appropriate books for local schools were hard to come by; books produced in Britain or France were expensive and did not always meet local needs in terms of content. Books from the US, while obviously not able to address the needs of Canada’s French speaking population, were also considered suspect in the English-speaking colonies because of their “republican” content.
Various local authors petitioned the assemblies of Lower and Upper Canada for financial support to produce books of local interest, often school texts but also sometimes maps, geographies and natural histories. Support was often provided, either in the form of an advance payment (which carried the obvious risk of funding a work that ultimately was not published), or else a commitment to purchase a set number of copies once the work was in print. The problem of the lack of suitable pedagogic materials was chronic, and the Assemblies got tired of being importuned. The solution, first bruited in the 1820s, but then implemented in the 1830s, was to introduce a copyright law to provide authors with a revenue stream from royalties to encourage production of more local content. In terms of achieving its objectives, this legislation was generally successful, despite constant interference from Britain which wanted to standardize copyright laws throughout the Empire and would not recognize Canadian copyrights in Britain unless the works were registered, and copies deposited, in London. Nonetheless, Canadian copyright laws allowed Canadian authors and publishers to establish themselves and begin a long tradition of Canadian educational publishing.
Fast forward two hundred years to the present and the disconnect between the goals of those early legislators and educators, and the situation today, is stark. I find it highly ironic that while the impetus for the first Canadian copyright laws came from a desire to promote learning and production of educational materials, today most Canadian educational institutions are taking a massive free ride when it comes to paying for teaching materials. Instead, they are using every pretext possible to avoid paying collective licence fees to the Canadian copyright collective for authors and publishers, Access Copyright, for their use (reproduction) of printed or digitized educational materials, using the “education” fair dealing exception introduced in 2012 as the excuse. Two hundred years later, we have gone backwards with respect to meeting the social objectives of copyright law.
I have written a number of times (most recently, here, but also here and here) on the fundamental unfairness of the way in which educational fair dealing has been interpreted by the educational sector in Canada, spurred on by university librarians, and abetted by the courts, resulting in upsetting the fundamental copyright balance between creators and users in this segment of the market. In the process they have turned their back on Canada’s copyright history. The negative impact on the educational publishing sector in Canada has been well documented, with several publishers giving up on the K-12 or post-secondary markets in Canada and many authors facing a drastic loss of income.
Universities and librarians continue to protest when this unfairness is pointed out, advancing a variety of arguments to justify their free ride on the work of others. One good example of the kind of self-justification put forward is an article published last summer in “The Conversation” by a couple of prominent university librarians. Among other things, they argue that the market has changed, moving largely to digital resources and digital access, no longer requiring any copying. (They seem to equate “copying” with photocopying although lots of digital reproduction takes place. This has the same impact on the market as the former practice of photocopying pages of textbooks). They point out that universities spend considerable sums on obtaining access to digital content directly from publishers. These facts are true, but they do not represent the full picture.
While many works are accessed by students from library sources directly through links, considerable copying and sharing (which a reprographic licence would permit) still takes place. After all, if there was no reproduction, the educational institutions would not have to invoke fair dealing to justify the unlicensed copying and sharing that is taking place. In testimony before the House of Commons committee reviewing the Copyright Act, one university librarian estimated that over 15% of access to course materials by students at their institution was based on fair dealing (as unilaterally interpreted by that university). Yet we have no proof that this copying complies with fair dealing guidelines, or indeed that the fair dealing guidelines published by the universities are consistent with fair dealing jurisprudence. In the long drawn-out case between Access Copyright and York University over educational copying and whether the tariffs (user fee per student) established by the Copyright Board of Canada were mandatory if universities used materials represented by the copyright collective (the courts ultimately determined that the tariffs were optional, not mandatory), the issue of whether York’s fair dealing guidelines were “fair” was never determined. The initial Federal Court ruling found that they were, in fact, not fair, and on appeal the courts declined to issue a statement requested by York that would have blessed its interpretation and application of fair dealing.
Because of the uncertainty this unilateral interpretation of fair dealing has engendered, universities have had to strengthen their oversight of copyright to ensure they stay out of trouble. Trying to make a virtue of a necessity, they have used this additional investment in library staff to attempt to demonstrate their respect for copyright. Among other things, they have had to improve their communications to make students aware of copyright and explain what they can and cannot do with copyrighted content. It is true that if you go to any university website, such as this one from Simon Fraser as an example, you will find an extensive discussion of the “do”s and “don’t”s of copyright. But is there any enforcement? Who knows? What is clear is that if these additional resources had been invested in acquiring a collective licence instead of unnecessarily bulking up on staff, this would have resulted in a better outcome for all concerned and would have provided the degree of protection needed. (“Throwing Good Money After Bad: How Canadian Universities Wasted Millions by not Acquiring a Copyright Licence”).
Many, if not most, of the digital licences obtained directly from publishers provide for access to works (usually limited to a certain number of users) but do not contain reprographic (reproduction/copying) rights. Educators have argued that the previous Access Copyright licence that covered photocopying of printed materials is no longer relevant in the digital age. While there may be truth to this in respect of printed materials, which are used less, Access’s licences also now cover digital copies. A copy is a copy, and an unauthorized copy is an unauthorized copy, whether hardcopy or digital.
Then there is the double-dipping argument that an Access Copyright digital reprographic licence would duplicate a similar licence obtained directly from a publisher, and so users would be paying twice for the same material. This is another red herring. Access Copyright represents most publishers. They belong to Access for sound business reasons. It is to receive compensation for unlicenced copying of the works they represent. If a situation arose where there was potential double-counting, Access Copyright has the ability to adjust its licence to accommodate such a situation through negotiations with the education sector, provided educational institutions were willing to demonstrate which materials were already covered by a direct licence from a publisher.
Finally, and this is the most galling assertion of all, apologists for the educational free ride (as in the article from The Conversation cited above), argue that the nature of university funding has changed. Students are now facing a heavier burden, and universities and colleges are challenged when it comes to funding. Both are true and both are irrelevant in terms of justifying the broad use of educational fair dealing to deprive authors of payment for reproduction of their content. Rather than pass on any savings to students, post-secondary institutions have found a plethora of ways to squeeze a bit more from them, as best exemplified by current stories regarding heavy dependence on–one might even say exploitation of–international students by many institutions. Do funding challenges mean that caterers for cafeterias, or cleaners in student dormitories, or any of the other suppliers to a university should suddenly provide for free what was previously paid for? Why should publishers and authors carry the burden for the funding challenges faced by many of our post-secondary institutions? We are talking about a few dollars (a couple of cups of coffee) per student per year.
Since there is no denying the hit the educational publishing industry and authors have taken, the educational sector has been quick to point to the Canada Book Fund and the Public Lending Right as alternatives. In other words, someone else should pay—but certainly not the users of the content! Whatever happened to the user-pay principle?
What is the solution? It is not to undermine fair dealing, or to remove education as a specified fair dealing purpose with respect to use of materials by students themselves. It is to put reasonable limits on its use by educational institutions who have been enjoying a decade long free ride. The Standing Committee on Canadian Heritage in its review of the Copyright Act proposed a reasonable solution. It recommended that,
“The Government of Canada amend the (Copyright) Act to clarify that fair dealing should not apply to educational institutions when the work is commercially available.”
This would preserve education as a fair dealing purpose but, with respect to educational institutions, would mean that it would not apply in situation where a commercially available licensed alternative is available. This would include both digital reprographic licences obtained directly from some publishers as well as a non-duplicative collective licence from Access Copyright for works in its repertoire. This is similar to what is done in the UK. Such an amendment would restore the education fair dealing balance that has become so badly skewed as a result of the 2012 Copyright Act amendments, and the subsequent broad interpretation thereof by the education sector, an imbalance that was surely not foreseen nor planned by legislators at the time.
Today’s Parliamentarians can make common cause with their predecessors of some two centuries ago by recognizing the symbiotic relationship between copyright, authorship and the production of quality educational materials. They need to act, and act soon. To date, despite assurances by the current government that it would take measures to ensure a sustainable educational publishing industry, including fair remuneration for creators and rights-holders, nothing has been done.
Canada’s first copyright laws were introduced almost two hundred years ago to encourage learning. That should still constitute a prime policy objective for copyright legislation; to incentivize the production of quality content for the education of today’s scholars. It is said that those who fail to learn from history are doomed to repeat it. In this case we seem to be forgetting the progress that has been made in building a vibrant and (until relatively recently) viable Canadian publishing industry and are turning our back on two centuries of copyright development for the sake of giving the education sector a short-sighted (and hopefully short-term) free ride.
(c) Hugh Stephens, 2024
