Tuesday, July 12, 2011

The ABC Copyright Conference - Access Copyright, Fair Dealing, the Interim Tariff, and Beyond

fThe University of Northern British Columbia (“UNBC”) hosted an excellent two day  conference on June 23 and 24, 2011  of the “ABC” copyright group (Alberta + BC), an informal coalition which comprises various professionals in post secondary institutions  whose jobs involve advising on copyright issues. I was honoured to be the keynote speaker.  An audio recording of my talk will be posted in due course.

Virtually all of the conference was devoted to Access Copyright (“AC”), and its currently  pending post secondary tariff at the Copyright Board that would impose a 1,300% increase over the current basic rate for the licensing of rights that don’t even exist in some instances under the Copyright Act, such as linking and displaying.

I am  glad that I was able to stay for the whole two days. It was informative - though rather sad - to hear from so many copyright professionals how difficult things have become for them in universities and colleges. Prof. Sam Trosow was also there and very active and constructive throughout. The following are some views that were presented and discussed by various participants both on the faculty and in the audience:

•    There is an unsatisfied need for more knowledge and information in the post secondary community about copyright generally and AC and the proposed post secondary tariff and the interim tariff in particular.
•    The AUCC/ACCC suggested fair dealing guidelines are seen by many as being unnecessarily far too conservative, restrictive and even harmful to faculty and students. There is concern that these guidelines, whatever the strategy behind them may have been, could seriously backfire at the Copyright Board and in the Courts by setting new, unnecessarily and unrealistically low and arbitrary thresholds that don’t reflect  actual post CCH norms and practices or any established legal basis, thereby rendering any uses outside of their narrow confines potentially compensable and/or even infringing. The CAUT guidelines are seen as only somewhat better, if only because they are phrased more positively rather than negatively - but reflect similar arbitrary percentage based premises. Here are the AUCC guidelines, and the virtually identical ACCC version.   
•    Many institutions may not adopt these guidelines.
•    Many institutions have not adopted the interim  tariff or will opt out as soon as they can this August.
•    There is a pervasive, unnecessary and frequently excessive concern with risk aversion - invariably based upon lack of information and even misinformation. The fact is that AC has never actually sued any person or institution in the academic community for anything. Moreover, it simply lacks any legal standing to do so on its own. Its test case litigation efforts have all failed - most notably CCH v. LSUC in the Supreme Court of Canada and the Laurier Office Mart case, in both of which it played a significant role. The more recent Staples/Business Depot case was launched with much fanfare, but soon afterwards was quietly dismissed on consent without costs. When the suit was started in 2007, it was described by the Toronto Star as “claiming $10 million in damages over unauthorized photocopying by store customers. The publishing organization said today that its lawsuit contains the largest claim to arise from copyright infringement of published works in Canada.”
•    Even if there were to be litigation - which can’t come from AC directly and would have to come from the copyright owner (i.e. the publisher and/or author) - a Court has the power and discretion to reduce statutory minimum damage awards to whatever amount it “considers just” - presumably down to nominal or even zero - where “there is more than one work or other subject-matter in a single medium”. Moreover, the refusal to issue a transactional license in situations where such licenses have been routinely issued for years could arguably result in any otherwise available remedies being denied.   
•    The near paranoia in some cases is not just coming from AC. It is coming, whether unintentionally or not, from AUCC and ACCC, for example via their suggested guidelines. An example of how such guidelines can be implemented in a manner that could predictably put an unnecessary chill into the minds of reasonable people can be found here in the Academic Policies and Guidelines of a prominent Canadian college updated March 30, 2011 which states:
        Faculty who see students using infringing copies of copyright protected works in class should advise students that:
        a) [s]he should not have made the copy,
        b) [s]he should refrain from making any future copies,
        c) materials protected by copyright cannot be copied unless permission has been obtained, and
        d) [s]he should purchase the book in future.
        Similarly, staff observing students making infringing copies of copyright protected works on public access photocopiers should similarly draw these facts to the attention of the student.

(Emphasis added)
•    If two panels of the Federal Court of Appeal ruling within weeks of each other in 2010 can reach apparently inconsistent conclusions on fair dealing, how is a community college teacher, no matter how well intentioned, supposed to judge on the spot what is “infringing”?  More to the point, since when is that part of his or her job? It goes without saying that item (c), if read literally,  is simply inaccurate because it disregards the doctrines of substantiality and fair dealing. Moreover, is a student required to buy every book he or she needs to copy from to undertake legitimate research and private study?   Obviously not.
•    This risk aversion is clearly having negative consequences. For example, there was a question about whether it is legal to put an actual book (not a copy of it or any part of it) on reserve when that book is  required reading. The answer, of course, is that it is perfectly legal. However, this is actually not such a surprising question, given the Copyright Board’s CMEC K-12 decision, and the current climate and interim tariff relating to AC’s pending post secondary tariff. However, it is disconcerting that a question such as this should even need to be asked on a Canadian campus. One wonders what users’ rights are being denied to faculty and students due to such misunderstandings on such basic points.
•    Moreover, some wondered to what extent they should monitor and police whether students are making photocopies of required reading material on reserve or keep an eye on other student copying activities. The view was voiced that university and college faculty and staff should not become “copyright cops”.
•    There was insufficient awareness that the Supreme Court of Canada has said quite clearly that an institution with an appropriate copyright policy in place is entitled to presume that its facilities will be used legally and is not required to prove that every person in every instance always refrained from  infringement. Arguably, too much control and supervision could make an institution more rather than less liable.
•    The Copyright Board’s K-12 decision as upheld by the Federal Court of Appeal was seen as unfortunate and there is considerable hope that it will be reversed in the Supreme Court of Canada. While this decision could be very harmful to the post-secondary educational sector if not reversed, it is arguable that its holdings about prescribed reading and multiple copies need not apply literally in the post secondary realm where the factual circumstances involving fair dealing are quite different overall and vary widely in different situations. This is especially so with respect to any attempt to impose any arbitrary distinction between required and supplementary reading material and any arbitrary exclusion of any multiple copies.
•    The interrogatory process in the current hearing has been incredibly onerous and there is consternation that the considerable efforts of most institutions have turned out to be unnecessary, since the Board recently ruled that “The associations should provide a reasonable amount of relevant information, from a reasonable number of institutions, preferably identified with the concurrence of Access.” The way things work at the Board, that would presumably have meant a representative sample of small, medium and large institutions. Ironically, it seems that most if not all members of AUCC and ACCC  first learned about this ruling here on this blog over a month ago on June 8, 2011.
•    The institutions still didn’t know how this ruling will impact on the need to do the considerable unfinished interrogatory work over the summer.
•    Those many institutions not relying on the interim tariff trust that the normal practice of providing of transactional licenses will be promptly restored.
•    There is considerable frustration by AC’s inability and/or unwillingness to adequately identify its repertoire and the Board’s apparent tolerance to date for this position - which has direct and daily implications for those who conscientiously try to secure necessary rights on a transactional basis, even when such licenses are available - which is allegedly generally not the case at present.
•    There was widespread belief that any tariff that is finally imposed by the Board must clearly allow an institution to operate outside of any tariff if it so chooses, because it should have other options for clearing the repertoire that it actually needs outside of a prohibitively expensive and restrictive blanket license.

My own observations:

It was apparent that many in the post secondary community want simple answers and bright lines. This is understandable. However, fair dealing by definition does not admit of such certainty.

The purpose of copyright law is not to prevent the normal operations of universities and colleges but rather to encourage such activity. The outer limits of fair dealing need to explored in good faith and courageously for the sake of Canada’ academic community; they should not be gratuitously conceded in an unnecessarily restrictive manner as a result of highly exaggerated and often unfounded concerns about risk aversion.

The duty of post secondary institutions is to serve the needs of their students and faculty. The Supreme Court of Canada has given this community a “large and liberal” conceptions of “users’ rights”. This should not be undone by AC or others who take positions that cut back on what the Supreme Court has said.

All in all, this as a very well organized conference with a very enthusiastic crowd of professionals who really want to respect both owners’ and users’ copyright rights. Contrary to AC’s overstated submissions at the Parliamentary hearings and elsewhere, all of these people and their institutions are quite happy to pay authors and copyright owners whatever amount is fair and reasonable.  However, they do not wish to pay too much and to pay too often for too little - and especially don’t want to pay for repertoire or rights that AC doesn’t have or don’t even exist - such as posting a link or displaying a work on a computer screen.

The enormous cost inflicted on the system by AC is reflected not only in tariffs that could soon exceed $80 million a year in the educational sector but in the enormous number of skilled people in these institutions whose jobs it is to provide answers that may be unknowable to faculty and administrators who are often misinformed in their belief that there is serious risk involved in normal activity and that there are bright line answers in all cases. The enormous direct and indirect costs of catering to AC could be better be used to provide more rather than less access to books, licenses, etc. and to hire more professors and staff to better serve the post secondary community.

There was growing interest and concern that AUCC and ACCC are taking positions, e.g. with their suggested fair dealing guidelines, that seem to be more favourable to AC than to the educational community.

Subsequent Developments:

The concern about how the AUCC/ACCC  guidelines, etc. could be harmful was nothing if not ironic in retrospect, given Prof. Trosow’s subsequent post on his blog after the conference. He points out that CRIA, the trade association that represents the world’s four largest record companies, is arguing in one of the forthcoming Supreme Court hearings for a very restrictive interpretation of fair dealing that could have “a profound impact on the direction and outcome of the Access Copyright Tariff proceedings” and that CRIA’s argument in the Supreme Court case is being made by the same counsel, namely Glen Bloom, who is currently representing AUCC in the Copyright Board post secondary tariff proceedings.
Michael Geist provides more detail on how CRIA’s position is an attack not only on fair dealing but the CCH case itself. Indeed, Michael states:
    CRIA proceeds to use its test ("if the framework for the construction of exceptions developed above is applied") on several occasions in the factum, displaying remarkable hubris of telling the Supreme Court of Canada that it is wrong and its manufactured test for fair dealing is right. CRIA's legal arguments are weak - they rely almost entirely on non-Canadian law since Canadian law clearly does not support its position - but in doing so, it is taking aim at fair dealing in an effort to revert back to a time when there was little pretense of trying to strike a balance in Canadian copyright law.
    (Emphasis added)
Indeed, it’s very hard to see how CRIA’s argument against fair dealing could succeed in the Supreme Court of Canada without seriously harming the universities’ position in the current Copyright Board proceeding.

Some Concluding Thoughts:       

Canada is completely out of step with the USA in most respects on these issues. I’m told reliably that American profs visiting in Canada can’t believe what they see on our campuses. They simply don’t need to think this way in the USA and they enjoy far greater academic freedom and access to educational material at far less cost than in Canada.

Above all, there is very little benefit in all this enormous expenditure of time, resources and money for actual authors, who all the fuss is presumably about.

Many, if not most, of the authors who do a get a cheque from AC will receive much less per year from AC than any of the lawyers working on these matters either for or against AC bill per hour. The legal bills for the post secondary tariff will presumably be several millions dollars this year alone. For a very large proportion of AC writer members, actual royalty receipts have fallen by 50% or more in the last year. A reliable attendee at AC’s recent AGM indicates that the median writer’s payment for last year was only $267.72 and the average royalty for AC authors was $438.36. Even the latter number is a fraction of the average hourly rate of the lawyers who are working on the current AC Copyright Board cases.

For 2011, AC has budgeted $2.2 million for “Copyright Board applications”, $1.3 for “professional fees”, and $6.3 million for “general and administrative” expenses. Expected licensing revenue is $27.2 million.

Whoever all of this is benefiting, it is certainly not the academic community or the cause of research, education and innovation in Canada.          


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