C-32 committee meeting 8 thoughts

This was an interesting day as it saw author Douglas Arthur Brown and two representatives from the Canadian Teachers' Federation (Mary-Lou Donnelly, President; John Staple, Deputy Secretary General) as witnesses. As can be expected, the topic was educational copyright. There were a few statements made that just blew me away, so there is much to write about. I will keep this as brief as I can.

Mr. Brown started his introduction by echoing a claim from Access Copyright that up to 85% of his income is threatened by the inclusion of "education" to the list of fair dealings categories. I've written elsewhere that I consider this nonsense. The vast majority of the educational publishers who receive the bulk of that money are North American, and not Canada-only. In the USA they use the language "teaching (including multiple copies for classroom use)" as one of the illustrations for their flexible Fair Use regime. While Canada has a two-step test (category + fairness test), the USA only has the fairness test which is prefixed with a list of illustrations using starting with the phrase "such as". (If anyone hasn't read it, look at US Copyright law § 107. Limitations on exclusive rights: Fair use)

I think it is informative to think about where that 85% number comes from, which is the percentage of money flowing into Access Copyright which comes from educational institutions. This amount of money flowing into Access Copyright is threatened, but it is not from fair dealings reform but the ongoing move within the global educational community from the legacy royalty-based publishing industry to one-time-payment systems such as Open Access. In this move authors often make more money, but they make it up front and without a large number of intermediaries taking their massive cuts along the way. While there will be more money for authors at the same time as easier budgeting for educational institutions, this comes at the "cost" of skipping unnecessary intermediaries.

I put "cost" in quotations as it is a cost to those intermediaries, but a benefit to the authors and educational system as a whole. I consider this transition to be a good thing, and have found it unfortunate that Canada has been slower in this movement than other jurisdictions.

The educational publishers who dominate the money flowing into Access Copyright are under considerable competitive threat, but this should not be confused in any way as representing a decrease in payments to Canadian authors. If anything, this transition will represent an increase.

When asked where Mr. Brown got the 85% number from, he clarified it came from Access Copyright and that he trusted the number because they were the "agency that represents my best interests". Obviously I disagree. Access Copyright provides a critical financial service to creators using specific business models, but no more represent the best interests of authors than my bank manager can claim to represent my political interests solely based on me being a customer.

Mr. Brown also included an example of a teacher who had photocopies his entire children book multiple times to hand out to children. Mr Del Mastro clarified that this was illegal today, and will remain illegal after the passage of C-32.

This is something that is often missing from creators who come before the committee. Copyright is not, an should never be treated as a government funding program. It is a government granted monopoly where certain activities require permission from the copyright holder. If someone does one of these things without permission, then the copyright holder must take the alleged infringer to court. This is no different than any other non-criminal activity. Copyright holders claim it is expensive to go to court, but so what? Going to court to protect ones rights from illegal activity is always expensive, and there is nothing that makes copyright holders special.

If the associations claiming to "represent" professional creators wanted to be helpful, they should come forward and be willing to pool resources and help defend the existing copyright related rights of authors (legal fees, hire full-time lawyers, etc). Instead they don't help creators, and misinform them about the alleged threats to their rights.

I have never understood this line of thinking. If people are infringing the existing contours of copyright, how can making more activities into infringements possibly help? The correct answer is that it can't! Making copyright easier to understand and respectable will reduce infringement, and will increase revenues to creators. C-32 in many respects goes the opposite direction.

It seemed from questioning that Mr. Rodriguez and Ms. Lavallée were confused about what the issue was, and what the CTF were concerned about. It really is simple: they want clarity that anything that is legal for students to do at home is also legal in the classroom. Above this, teachers should be able to step into the shoes of students and be able to do on their behalf anything that would be legal for the students to do for themselves.

While C-32 contains institutional exceptions that go beyond this, it was the additions to the limited list of fair dealing categories and works available through Internet (new subsection 30.04) that were highlighted by the CTF. These are both examples that should be seen as offering clarity to where teachers would be stepping into the shoes of students and doing things which would be perfectly legal for students to do at home.

This was not a matter of teachers not wanting to pay authors, or any of the other misunderstandings that were made.

The CTF representatives did mis-use language and suggested that they would pay where there is "copyright", confusing the existence of copyright with a demand for additional permission and/or payment. This might have been accidental, and I suspect when/if I am before this committee I will be flustered by the aggressive treatment as well.

Something being made publicly available on the Internet doesn't make it "public domain" in the Copyright sense (unregulated by copyright), but it does infer that there is an implied license for people to access and make limited personal use of the content without additional permission or payment. Why should educators make additional payments to show to students in the classroom content which the students have already been given permission to legally access by the copyright holders?

Forcing educational institutions to pay in these circumstances sounds like an arts funding program to me, dishonestly paid for out of provincial educational budgets rather than the federal Heritage Canada budget. Whether this is a deliberate slight of hand by federal legislators or not I will never know for certain, but that doesn't make including funding programs in the Copyright Act any more valid.

My recommendation on this issue is in my C-32 FAQ. The short-form is that I would include "including multiple copies for classroom use" in an illustrative (rather than exhaustive) list as part of fair dealings reform, and otherwise remove education institutional exceptions. There should be no government funding programs for either educational institutions or intermediaries like Access Copyright embedded into the Copyright Act.