Good Money After Bad

When will Canada’s education sector kick its incredibly expensive “free culture” habit?

by John Degen

(image courtesy me and my little camera)

In 2017 one of Canada’s largest and wealthiest universities lost a landmark copyright case in Federal Court. No, that’s an understatement. York University didn’t just lose a court case — York University was soundly and embarrassingly schooled on every single argument it brought to justify the massive amounts of unlicensed copying it authorizes.

The court found, as a matter of evidence-based fact, that the university simply did not have the necessary licences, permissions or rationale (and that includes hopeful reference to the Copyright Act’s fair dealing provision) to copy the majority of the contested works it used in the course of its pedagogy. York’s defence didn’t so much fail as it was crushed into a tiny ball and drop-kicked from the courtroom.

The university is now subject to the copyright tariff it had been excusing itself from for years, and its fair dealing guidelines — a sort of rule book for free copying — were thrown in the cylindrical legal file where they belong. York is required to make good on years of unpaid copying charges, plus pay court costs for Access Copyright, the licensing agency representing Canada’s writers, publishers and visual artists. Add those expenses to York’s own court costs — and since the case was originally launched in 2013, that’s a good four years of bloated legal lines in York budgets — plus the legal responsibility for copying charges going forward, and it would appear York has now incurred gigantic legal expense attempting, and failing, to defend free culture theory — a widely discredited intellectual gambit that grew from naive Silicon Valley digital Utopianism.

The end result for York? Fighting against copyright licensing was a monumental and reckless waste of time and money. Might not all the cash they spent on hopeless legal excuse-making have gone instead to tuition subsidies? How about scholarly research? Here’s a crazy thought — library budgets!? York’s administration presumably pays for every other good and service it uses, yet was bamboozled into believing cultural products were suddenly free because, as free culture theory likes to vaguely claim, the world has changed, all creativity is copying, and something something the internet.

What’s more, it looks like this academic giant was sold its legally lambasted bill of goods by extremely well-compensated members of the academy itself — tenured free culture legal theorists who happily accept payment for their own services to education while, clearly, maintaining little pragmatic connection to working legal realities.

The Federal Court ruling should stand as an object lesson for Canada’s entire educational sector who, emboldened by York’s willingness to rack up legal fees, have for years now mostly followed the same free copying template. One would think York’s costly loss would have immediately ended this pointless campaign for free stuff. As a practice, the free culture content grab has done little to enhance the sector. How does it look to potential students to see schools brought to court and called out on questionable copying in the national press? How does it make Canada look to the rest of the world?

And yet, egged on by those same well-paid free culture theorists, York has announced it will appeal the ruling, extending its run as the expensive case study for free culture folly. Not only did York fight a losing campaign against collective licensing and mandatory tariffs for about six years, it will now throw good money after bad challenging a decision considered to be effectively impenetrable to appeal.

In its judgement against York, the court employed impressively damning language. Here are just a few examples:

York’s approach to these copyright infringing actions is consistent with its wilfully blind approach to ensuring compliance with copyright obligations…
It is evident that York created [their Copying] Guidelines and operated under them primarily to obtain for free that which they had previously paid for.
One may legitimately ask how such “works for free” could be fair if fairness encompasses more than one person’s unilateral benefit.”

Despite this clear and incontestable dismissal of industrial-scale free copying, other educational administrations across the country seem to be advising their faculty to carry on with now discredited copying policies. At the University of Toronto, for instance, faculty are told that U of T “is not subject to the court’s Order.” At the University of Alberta, the Copyright Office states “the course materials for Fall 2017 are already being processed at the U of A Copyright Office, and the remainder of those course materials will continue to be processed using the current fair dealing guidelines.” The University of Guelph reasserts its own fair dealing guidelines, which contain an insistence on course pack production and the discredited 10% definition of “short excerpt,” two details central to the Federal Court dismissal of such copying rules.

These bizarre status quo assertions by other educational administrations seem predicated on the uncertain belief a York appeal will stay the current judgement, buying time for more free copying before a final decision. But that’s not how it works. Even with an appeal filed, the current status quo remains that copying like York’s is illegal. Good luck with those reading lists, professors and students.

Sadly, this is how front line copyright policy in Canada is being formulated today — through delay and a faint hope for ongoing court action. In the meantime creator incomes are collapsing, student costs continue to rise, and fewer and fewer original Canadian works make it into Canadian classrooms. All of Canada deserves a better solution.

Canada’s intellectual property laws and all related copyright regulations and policies must be firmly defined by guiding legislation. What’s more, that law must be designed to fulfil copyright’s ultimate purpose, which is to provide both encouragement and protection for the risky entrepreneurship that is professional creation. Canada’s creative professionals must not be subject to arbitrary loopholes, exceptions, and the endless need to assert our rights through expensive court action.

Parliament is mandated to review the Copyright Act, and the government has already signalled its willingness to intervene when laws and regulations around culture have been misinterpreted, as they most certainly have been by educational admins. Canada’s artists know how copyright is supposed to work, and now the Federal Court, taking all previous legal precedents into consideration, has supported our understanding without equivocation. Canadian creative professionals and their supporters are encouraged to sign on to the Focus on Creators coalition, which is asking our government to put creator interests in the forefront of cultural policy considerations like the coming copyright review.

It’s not too late for York to finally do the math and conclude that a return to respectful copyright licensing is a bargain that is good for students, faculty, and the culture in which they operate. The free culture theory has been a bust. Time to admit it, accept the Federal Court’s clear judgement, and move on.

[This article was updated on December 4, 2017.]

John Degen is a novelist and poet. He is Executive Director of The Writers’ Union of Canada, an organization representing more than 2,000 professional authors in Canada. He is also Chair of the International Authors Forum, which represents over 650,000 professional authors worldwide. Views expressed are his own.

Read John Degen’s most popular Medium article: 5 Seriously Dumb Myths About Copyright The Media Should Stop Repeating.

© John Degen, 2017