Time to Fix Canada’s Copyright Mistake

by John Degen

(image courtesy Access Copyright 2016 Annual Report)

A version of this piece was originally published in The Hill Times: Monday, May 8, 2017

Some weeks ago, scholars at Concordia University in Montreal were caught infringing copyright in what appeared to be acts of wholesale book piracy. This turned into public embarrassment for the university when Kate Taylor at the Globe and Mail published details of the infringements. Working with The Writers Union of Canada and various concerned publishers and authors, Taylor uncovered what looks like a long history of intentional copying and distribution, little (if any) of which was permitted or paid for.

Here’s what happened. The Centre for Expanded Poetics (CEP) at Concordia University scanned commercial collections of poetry, and created a public digital archive, downloadable by anyone. On one page of the CEP website alone, I counted 22 titles by some of the biggest names in contemporary poetry, Canadian and non-Canadian. The scanning took place on a state-of-the-art book duplicator estimated to cost around $10,000. Those doing the scanning even posted a photo of the activity online.

Many of the book links were listed as 2015–16 course materials, so we can assume this practice went on at CEP for close to two years (at least). How many poets in total were infringed will likely never be known. Caught infringing, the CEP quickly took down all the links. The CEP head admitted vaguely that publicly posting the scans was “a mistake,” but what about the scanning itself? What about distributing works to which one has no rights of distribution? Were those also mistakes? It’s hard to see this incident as anything other than complete copyright ignorance, or intentional disrespect.

This is all the result of weak and confounding law. Each year since 2012, when the Copyright Act was loaded with vague new amendments, many Canadian universities have claimed free access to hundreds of millions of pages of copies, citing their own controversial interpretation of fair dealing. This has cost cultural workers tens of millions of dollars in lost income, and those losses will mount ever higher as long as the law remains without regulatory structure. Ironically, Concordia is not one of those schools, and still pays a collective license for copying. But the parameters of that copying are strictly defined. What it doesn’t pay for, it must claim as a fair dealing, or not use.

Nobody could seriously claim that copying entire books and giving them away is in any way fair. Or could they? The fact is, intentional full-book scanning and sharing is not a new phenomenon among scholars. A current lawsuit in the Quebec courts deals with similar academic book-scanning dating back to 2011. These incidents shock and anger commercial authors, but some scholars with university salaries can be remarkably blasé about the activity.

Janneke Adema is a Research Fellow in Digital Media at Coventry University. One of Adema’s widely-read blog posts (from 2009) considers the “dilemma” of sharing something that is not yours, and cites a number of “little ‘tricks’” a scholar might use for “relieving oneself from responsibility.” Those tricks sound like the excuses we are now hearing from Canada’s anti-copyright apologists. “classifying oneself as a reading group… not hosting the content. One can also state the offered texts… form a special issue or collection of resources, emphasizing their educational and not-for-profit value.”

The Concordia infringement story is about one department at one university, but there are thousands of departments at hundreds of post-secondary institutions in this country. If this was going on quietly for years at a licensed university, imagine what “little tricks” might be going on at the institutions who claim vast amounts of free copying?

Calling what happened at Concordia a mistake is nothing but misdirection. It’s spin from the anti-copyright crowd, and weak spin at that. You don’t purchase a $10,000 book-scanner by mistake. You don’t accidentally sit down at that scanner to create perfect copies of in-copyright books.

If there’s an actual copyright mistake in this story, it was made in Parliament in 2012. The mistake was believing that a huge education loophole carved through the Copyright Act would help teachers and students while doing no damage to Canada’s professional cultural sector. The exact opposite has happened. Student costs have gone up. Scholars and schools find themselves in court for infringement. Writers and publishers are vastly underpaid for their work when it flows through the classroom, resulting in a net loss of content. Other countries now look at Canada to learn how not to deal with copyright.

The current governing party in Canada voted against that 2012 change to the Copyright Act. Sitting in opposition at the time, they recognized the legislative amendment for what it was — a clumsy, embarrassing mistake. Time to fix that mistake.

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