Monday, January 12, 2009

Textbook Infringement

There's a very interesting story in today's Toronto Star about the copying of whole textbooks that are required by post secondary students for their courses. Naturally, one cannot condone such activity, especially if deliberately done for profit by a commercial copyshop.

However, what is most interesting about the article are the issues it raises concerning the economics of the college and university textbook market. There are over a hundred often very angry comments about teachers requiring the use of textbooks that change very little from year to year, but just enough to make it impractical to utilize a used version. These books are often very expensive, and for no apparent reason since some sell in very large quantities. One parent of a University of Guelph student reports spending over $2,000 a year on textbooks and expects to spend at least $10,000 on textbooks for the kid by the time he/she gets an honours B.A.

The Star suggests that many students are now commonly paying well over $1,000 a year for textbooks, some of which can cost up to $300 each.

Perhaps there would be less infringement if the cost of these books could be controlled. For example, university management and faculty might explore ways in which professors could be encouraged to use the most cost effective text that delivers sufficient quality. If relatively minor update material is required due to new developments in a field, it may be reasonable to encourage professors to provide it by way of a coursepack rather than requiring the purchase of a brand new edition. Even coursepack costs are quite high because Access Copyright demands $0.10 a page for much of the material that appears in coursepacks. The high cost is attenuated by the large copyright bureaucracies and copyright chill that are prevalent in most Canadian post secondary institutions. Access Copyright ("AC") has not yet had to face a contested hearing at the Copyright Board over this and other high high components of their license. For almost two decades, the AUCC has chosen not to go through with a Copyright Board hearing involving AC.

Last but not least, the whole area of textbook costs and the cost of books generally in Canada is something that the Competition Bureau might want to look at when it gets a new Commissioner who may be more proactive on IP matters than the outgoing one. Once again, anecdotal evidence strongly suggests that Canadians are paying more for less than Americans, with insufficient corresponding cultural benefits.

This also a problem in the USA, where there’s been a bill passed to deal with the issue, inter alia. See this discussion of H.R. 4137 which is now Public Law No: 110-315.



  1. From the Copyright Act: "section 29. Fair dealing for the purpose of research or private study does not infringe copyright." Possibly students pooling together to make copies of textbooks or course materials is exempted under fair dealing, possibly it is not. It would be interesting to see a case decide this. The stickier part is having a copy shop basically police this copying, i.e. for sure if you are just copying an excerpt as a student that is covered by s.29. Perhaps copying an entire long textbook isn't. But to have a copy shop employee make these calls invites mistakes - i.e. they could knock out what is legitimate copying in a misguided effort to stop unauthorized copying (however as your piece indicates the smarter ones are going to realize that kind of behaviour runs against their bottom line). Now all that said, the shops that copy entire volumes and sell them to students, that is not protected by s.29, and is an infringement (though I am sympathetic with those students).

  2. Possibly students pooling together to make copies of textbooks or course materials is exempted under fair dealing, possibly it is not.

    It is not. This is not a particularly vexed legal question. Sam Trosow's CAUT fair-dealing guide will stand you well.

  3. I rarely comment on comments. However, the first comment contains a dangerous and incorrect suggestion, as I understand it. This appears to be that it “possibly” would be fair dealing for several students to systematically (i.e. “together”) divide up the work of copying that would not be legal if done by one person. That is wrong and the second commentator is right.

    Here’s the CAUT Advisory to which the second commentator refers.


  4. Commenter #1 here.

    HK I did not mean to suggest that doing something collectively, as opposed to individually, enables extra fair dealing rights.

    to Commenter #2: it seems to me not impossible there could be circumstances in which copying of textbooks or course materials in an academic context fits within the ambit of fair dealing as outlined in CCH. Granted, perhaps not often or most of the time, but to say there are no possible circumstances seems an overstatement.

  5. There may be a large number of circumstances where fair dealing allows students to reduce their text book budget.

    The instructor will often provide a reading list in advance or on the first day of class which indicates which pages of the text book are required reading. If say, 50 pages out of 500 pages were deemed 'required reading' and the student(s) assembled those 50 pages into an 'abridged' version of the text, would this be fair dealing?

    I think in some situations it may be. While still a very substantial portion of the whole work, it seems to be less so than the taking of "an entire article" which the S.C.C. indicated would be acceptable for research purposes under CCH. ("For example, for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision.")

    It is true though that it would substantialy eliminate the market demand for the 'complete' book, as nearly everyone in the class would be satified with the abridged version, and this would have to be taken into account.

    (different anon from above)

  6. Frankly this is yet another case where copyright is contrary to the public interest, to common sense, and to reality.

    Continuous overreach by copyright interests will have a predictable denouement: the abolition of copyright. Dunno how long it will take though; alcohol prohibition lasted decades in the US.