I am working this year on developing a copyright amendment that is intended to do a much better job of supporting open access to research than the current law. This work is catching something of the tailwind filling the sails of open science, brought on by tragic, disruptive turns of the global pandemic. The rising tide of open preprints, data, and article access is accelerating the pursuit of vaccines and cures, and some believe science will never be the same. Yet science operates within an intellectual property regime that makes few distinctions over its particular economy. Thus the need to consider copyright reform.
In the spirit of this openness, while the project is still in draft form, let me share some reform ideas in the context of the continuing saga of York University v. The Canadian Copyright Licensing Agency (Access Copyright), which I have dealt with more than once in these columns. In the latest installment, on April 22nd, 2020, the Canadian Federal Court of Appeals ruled against Access Copyright’s ability to impose mandatory tariffs on York students to cover the royalties involved in the assigned readings for their courses. It also denied the overall validity of York University’s reliance on its “Fair Guidelines for York Faculty and Staff,” which set out the terms of “fair dealing,” to protect the institution from charges of copyright infringement.
Michael Geist has called it “an enormous win” for York, but I find that the ruling manages to leave matters in an unsatisfactory state for both parties. It reveals how the law is not yet up to handling the digital-era transformation of scholarly communication (although it has been updated to meet entertainment industry concerns). While I’m starting with the United States Copyright Act for reasons explained in an earlier column, such reform will work only if they work everywhere. Thus, the value of testing it out with a case such as this.
The York case hinges on fair “dealing” which is no longer the right legal instrument, in my opinion, for effective knowledge dissemination and creation in twenty-first century universities. The issue is not whether readers use research for the purposes and under terms that count as “fair dealing.” What matters is improving the circulation of research which, as the pandemic is making clear and scholarly publishing stakeholders have agreed, is through open access, which is to say public and free access. This is not just in the students’ and public’s interest, it is in authors’ interest, and it grows out of what distinguishes research publications from other types of work.
Because researchers explicitly work from and build on relevant earlier studies and because research finds its value in how others come to use it in a similar way, then open access to such work raises its quality and value. This distinct aspect of research has a bearing on the author’s “moral rights” in Canadian law. Consider “the right to the integrity of the work” (C-42, 14.1.1). Authors see the integrity of a research work in a number of ways, one of which is the extent to which they have been able to access the relevant literature on the topic. The law allows that this moral right is “infringed” when the work “is, to the prejudice of its author’s…honour or reputation,… distorted, mutilated or otherwise modified” (28.2.1.a). The “distortion” in terms of researchers’ “honor” and “reputation” arises from restrictions in their access to studies, as well as from restricting others’ access to their work thereby limiting the contribution it makes.
The legal irony here, which speaks to the need for legislative reform, is that copyright is contributing to the distortion of the moral right it grants, if only in the case of research. This is because copyright offers publishers no other scalable means of recouping their investment beyond charging readers to access the work. The need for another option is at the heart of the case for copyright reform in support of research and the public interest.
Thus, I propose that copyright recognize “research publications” as a distinct category of intellectual property, much as Canadian law recognizes as a “publication… the construction of an architectural work” (C-42, 2.2.1.a.ii). I also propose a version of compulsory licensing, borrowed from the music industry, that requires the principal institutional users and funders of this research to pay for the publishing services of certified scholarly publishers (much as they do now without offering open access). While these two aspects are more complicated than can be dealt with here, interested readers are welcome to read and comment on the case for copyright reform that I have under construction here.
What then of the trade publications of professional writers that instructors assign as course readings in York v. CCLA? Again as I argued in an earlier ruling, I think it reasonable for students to pay royalties for these literary and non-fiction readings. That does leave a question about what proportion of scholarly and trade publications are assigned in Canadian institutions of higher learning. And as I promised in this column a year ago, I finally have underway a study that will answer that question and perhaps bring what is fair for students and faculty, writers and publishers, into sharper focus.