Spinning Out of Control at the Copyright Review

Canadian education reps try desperately to suggest their massive free copying isn’t hurting anyone. Ironically, no-one’s buying it.

By John Degen

(CMEC’s thoroughly discredited “Fair Dealing” guidelines. Image courtesy me and my little camera.)

The Council of Ministers of Education Canada (CMEC) recently testified before Canada’s Copyright Review. Somewhat embarrassingly for CMEC, the review committee has been reminded several times now that way back in 2011 CMEC assured Parliament again and again that education would continue to pay licences for copying, and that creators would not suffer economically from radically expanded fair dealing.

Now, in 2018, with education having excused itself from licensing, and Canadian writers watching their copyright royalties shrink toward zero, CMEC is forced to spend a lot of time and energy telling Parliament that concerns over what they promised in 2011 are all a big misunderstanding.

Many of the questions from the review committee referenced those early promises, and the responses from CMEC were… underwhelming.

Let me paraphrase:

We aren’t actually asking for free stuff. We pay for a whole bunch of stuff. Look, artists and publishers aren’t suffering at all from the free stuff we’re, um, not actually asking for, and didn’t mean to take in the first place. There’s a lot of free stuff just lying around, you know. The Supreme Court actually lets us take free stuff so if we were taking free stuff, which we’re really not doing all that much, we’d be totally justified in doing it, but we don’t, and it wouldn’t hurt anyone, especially not artists. Does it hurt to lose $30 million a year? Does it really? A little bit of free copying here and there won’t hurt anyone, but we’re totally not doing that very much and probably won’t even more. Have you heard about the internet? It’s changing everything, free-stuff-wise.

Round and round we go. Canadian cultural workers have been hearing the same disingenuous spin from the education sector for six years now (more if you count the many assurances of continued payment for copying they made pre-2012).

What’s more, the loudest public voice defending education’s rapidly unravelling position on fair dealing comes from — surprise! — inside the same very, very well-paid academy that has been doing all the free copying:

(Source: Ontario’s “sunshine list” of public employees making above $100,000)

BTW, I believe that number (above) is this free-culture spinner’s base salary, and does not take into account the annual funding received for occupying a research chair Canadian taxpayers also pay for.

To put that number into perspective, the annual salary for a Member of Parliament is $172,700, while the average annual earnings for a Canadian writer are currently just under $13,000.

(Source: The Writers’ Union of Canada’s 2015 income survey.)

I don’t begrudge anyone their salary, especially when they’re earning it (and the MPs on the Copyright Review are certainly earning their pay). But I believe authors earn every penny of their income in a very tough and poorly-understood business. They should be earning more, and they would be if educational copying were properly regulated. Canada can do a whole lot better for its authors and publishers in relation to, say, its publicly subsidized and well-protected researchers.

And by “a whole lot better” I mean maybe don’t authorize industrial-scale copying of our work. Maybe don’t destroy a necessary market for our labour.

So, let’s go through all this once again.


Spin:

Educational institutions have increased their spending on materials since 2012.

Why that’s irrelevant:

Even if it’s true — and there’s plenty of documentation to suggest academic library budgets are actually in crisis rather than in bloom — the spending they are talking about is not on licences for copies of commercial works that appear in print and digital course collections. It’s almost entirely on research materials in expensive foreign academic journal bundles. In other words, they’re spending plenty for their researchers, but the stuff for students they’re just grabbing for free.

Access Copyright CEO, Roanie Levy puts this spin out of its misery in her own testimony before Parliament. See the video clip below:


Spin:

Education is taking all this stuff for free not because of the change to the Copyright Act in 2012. They’re taking it because the Supreme Court said they could.

Why that’s not true:

Nothing in the 2012 SCC decision — referenced again and again (and again) by educational reps — authorizes industrial scale copying of works for use in course packs and digital course management systems. We know this because… well, first of all, because we’ve actually read the SCC decision. Anyone wanting to see behind the curtain of this particular bit of educational spin should do the same.

But we also know that the SCC does not authorize the huge amounts of copying education claims it has court permission for because the Federal Court examined that decision in detail before ruling against York University, who was attempting the same spin. And I quote:

“…the situations contemplated in [the SCC ruling] bear little resemblance to the facts of this case. It is one thing for a teacher to have the school librarian run off some copies from a book or article in order to supplement school texts, and it is quite another for York to produce course packs and materials for distribution through LMSs, which stand in the place of course textbooks, through copying on a massive scale.”

The guidelines that CMEC are desperately trying to defend are virtually identical to York University’s own fair dealing guidelines, which the Federal Court justice declared “not fair in either their terms or their application.” And again, that’s after considering the previous SCC ruling.

The introduction of educational fair dealing in 2012 is obviously the foundation of the educational sector’s massive content grab. If that’s not the case, why are they working so hard to keep it? It’s a gaping wound in copyright protection, one education promised not to exploit. It must be closed by Parliament.


Spin:

StatsCan says Canadian publishers are doing just fine. That means education can’t possibly be hurting the creative sector with all its free copying.

Why that’s just ridiculous:

There’s so much wrong with the line of thinking in this piece of spin it’s hard to know where to begin. I’ll begin here:

Canadian publishers are succeeding despite steeply declining copyright royalties? Great!

That means they are very good at their jobs, and that’s what a country looks for in its publishers, isn’t it? StatsCan data showing increased sales for Canadian books between any one given year and a later year is what I would call the universe unfolding as it should. Authors and publishers working in the commercial market are supposed to succeed.

All success is relative. How much better would Canadian authors and publishers be doing if primary sales to the educational market were not being parasitically interrupted by free copying? How much better would we all be doing if we could once again count on payment for use in course packs and digital course management systems? There’s no way to know because not even StatsCan can measure absence.

Let’s make this simple. If you crack me on the shin, I’ll bloody well still get to the end of the race somehow; but I’d sure get there faster and in better shape if you hadn’t hobbled me.

Educational reps before Parliament should just stop it with the cultural workers are not suffering enough argument. It’s embarrassing.



John Degen is a novelist and poet. He is Executive Director of The Writers’ Union of Canada, an organisation representing more than 2,000 professional authors in Canada. He is also Chair of the International Authors Forum, which represents close to 700,000 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, 2018