Facilitating Fair Copyright Compensation in Canadian Universities

During the first week of June this year, Canada’s Standing Committee on Industry, Science and Technology issued its Statutory Review of the Copyright Act Report, after an exhaustive and expensive Canada-wide polling of opinion. The result of a legislated five-year review of copyright, the report’s first recommendation is to strike this review mandate from the legislation. More than one witness pointed to how the conventional legislative reform process is working just fine.

That duly noted, if with a touch of irony, I’d like to focus my attention on a pair of consecutive recommendations, beginning with number 16: That the Government of Canada consider establishing facilitation between the education sector and the copyright collectives to build consensus towards the future of educational fair dealing in Canada.

Shortly after the report was issued, it was encouraging to see Roanie Levy, president and CEO of Access Copyright, reaching out to say her copyright collective “looks forward to working together with stakeholders in government and education to arrive at a sustainable solution.” As an education-sector type, I’d like to, in turn, do my share in helping the Canadian Government with this proposed facilitation. As a first step toward building that consensus, for example, I would join with Ms. Levy in holding that “Canadian writers, visual artists and publishers don’t receive fair compensation when the education sector copies their works.” Or at least I agree that some don’t, and I’d like to fix that.

One way of going about such a fix is to acknowledge that when it comes to postsecondary classrooms, we are failing to distinguish between the works of academics and that of professional writers, artists, and their publishers. Academics are writers, after all, who are paid by their universities independently of the works’ sales and copying. And academics’ work, I suspect, prevails to such an extent that the plight of others is too easily set aside and ignored.

Such suspicions bring me to the Committee’s Recommendation 17: “That the House of Commons Standing Committee on Industry, Science and Technology resume its review of the implementation of educational fair dealing in the Canadian educational sector within three years, based on new and authoritative information as well as new legal developments.”

Among the “new legal developments” is the 2017 decision on Canadian Copyright Licensing Agency (CCLA) v. York University. The court ruled that York’s wholesale educational use did not fall under fair use, although this decision is under appeal. Here, too, I have argued for value (here and here) of distinguishing between writers who are, within this educational context, fairly and unfairly compensated.

This is where the recommendation’s call for “new and authoritative information” comes in. Why not apply machine learning to Canadian postsecondary syllabuses posted online in French and English to determine the relative proportion of non-academic writers, artists, and publishers being used, as well as their identities. Being able to hold up those professionals whose work is used in classrooms but not compensated, compared to the salaried academics and their well-subscribed publishers, will make the universities that much readier to reach a consensus with copyright collectives.

In this, I join sides with Access Copyright. If it’s worth teaching, it’s worth compensating. And worth compensating, I would add as part of the university’s expenditures, and not largely by students pursuing Canadian studies. But then I’d also recommend that Access Copyright move away from its mode of charging by the page for coursepacks (15 cents) and by the copier for non-course-pack copying ($50/$100). Page copying is more than a little dated. Students download files, in my experience, which they read, skim, or skip. Access Copyright would do better to follow the lead of all-too-well compensated academic publishers by offering universities “institutional” pricing for access to Canadian writers, perhaps tiered to the size of the institution, with rights for course use.

The reason that I am giving serious thought to undertaking this data-gathering exercise is not only because of its fairness to Canadian culture, but as such fairness speaks to my larger concerns with how the Copyright Act should support open access to university research and scholarship, as such access is in the public interest. In this, I would ask Access Copyright’s support, in turn, for my position: The law should recognize that research and scholarship constitute a different economic order of intellectual property, compared to other writing (much I have argued above and before).

Following on that recognition, public and scholarly interests are best served by a law that ensures both immediate public access to such works and fair compensation to its publishers by those who depend on such publishing, namely, the universities. This would involve university libraries reallocating subscription and acquisition budgets to underwrite the openness that promotes learning and furthers research. At the same time, such legal reforms would make all the more clear that the work of professional writers, artists, and their publishers is sustained by the marketplace of bookstores, libraries, and classrooms, in ways that should not be unfairly compromised by overreaching interpretations of fair dealing.