Access Copyright has issued a new response to critics of its proposed post-secondary education tariff.
Five Fast Facts on Access Copyright's Post-Secondary Tariff Application is a classic “damage control” narrative. Indeed Access Copyright's credibility has been questioned in the wake of the objections filed in opposition to its tariff application. It is unfortunate though that they don't take this opportunity to reassess some of its more contentious points. On a positive note, I will also offer Four Principles for a Fair Tariff in order to summarize some of the main points raised in the objections and get the debate back on track.
Here are the five fast facts, along with some comments on each:
Fast Fact 1:
This is about high-volume copying, not students copying texts for private study.
Every year, Canadian universities and colleges generate several hundred million copies of educational materials. That’s equivalent to over a million books containing the scientific, technical and artistic output of tens of thousands of Canadian knowledge workers. The knowledge industry and the people who work in it are entitled to compensation when the works they create are not purchased because copies are used instead.
There is no doubt that university copy machines and printers are kept very busy. While it would be hard to accurately estimate exactly how many copies are really being made, let's just accept Access Copyright's assertions that the number is very very large. Let's even take as given Access Copyright's claim in the last sentence that compensation is appropriate when works “are not purchased because copies are used instead.”
But Fast Fact #1 really does not provide any substantive connecting material between the first assertion about volume of copying and the need for compensation. Instead, we are only left with an inference that there is some equivalence between the volume of what is copied and the level of compensation that should be collected, or as they put it, “over a million books containing the scientific, technical and artistic output of tens of thousands of Canadian knowledge workers.” With all of this valuable material being copied, maybe we should forward the contents of our paper recycling bins to our libraries and archives before disposal.
In any event, much more is needed to make the connection between what is copied/printed and what is actually compensable. Fast Fact #1 just glosses over that important step.
Fast Fact 2:
Access Copyright asked the Copyright Board to set a tariff to ensure that creators and publishers are fairly compensated.
Under the proposed tariff, universities and colleges would pay a flat fee per student to make all the copies they need, up to 20% of any given publication. It's a simple principle: creators are entitled to compensation when their work is used.
Notice how in Fast Fact #1 the entitlement to compensation is where works “are not purchased because copies are used instead” but in Fast Fact #2 the entitlement is much broader and now applies “when their work is used.” It is difficult to sort through the tariff document itself and find any discernible connection between compensable copying and fair compensation for this particular copying. This difficulty is due in large part to the overbreadth of what is subsumed in the broad defining of “copying” and “course collection” as well as the draconian scope of the reporting/survey and audit requirements.
Access Copyright is asking the Board to do much more than simply ensure that creators and publishers are fairly compensated.
They are asking the Board to download to educational institutions and their staff the responsibility to implement and maintain a massive panopticon which is capable of capturing and reporting routine interactions between academic staff and students and which goes well beyond the moderate requirements in the current license.
Fast Fact 3:
The Copyright Board is a quasi-judicial body that, like a court, hears evidence and delivers a pondered decision.
The Board will examine all the evidence. Arguments about the medium in which the texts originated, the amount of copying, or whether the copying is fair will be decided by the Board, not in the media. Access Copyright is not claiming for works that are already licensed or that are excepted under the Copyright Act. (footnote 1: Some university and college libraries have direct licensing arrangements with some publishers. We support all means of ensuring works are paid for. The effect of those licences and the value of the uses will be determined by the Copyright Board.) The tariff process will identify works for which there is no other licensing arrangement or other exception under the Act. We will only capture what is being used but not otherwise authorized.
True enough, the Copyright Board is indeed a quasi-judicial body and true enough, they will hear evidence and deliver a pondered decision. But It is interesting to see Access Copyright distance itself what from what appears in the tariff to be a claim for otherwise licensed works or uses which constitute fair dealing.
To clear up this alleged misconception, they should amend their proposal to explicitly incorporate the current exclusion for fair dealing and also remove all references in the reporting requirements to licensed works. Note again in the last sentence, the breadth of materials to be “captured” extends to what is being used but not otherwise authorized not to the more limited characterization in Fast Fact #1 with respect to uses substituting for a purchase of the work. This language also liquidates fair dealing, since by definition there is no need to even resort to fair dealing analysis if the use has not otherwise been authorized.
Access Copyright would very much like to have a rule that allows copyright owners to opt-out of fair dealing simply by offering a license to use the work. But the Copyright Board, which as Access Copyright so eloquently puts it “is a quasi-judicial body that, like a court, hears evidence and delivers a pondered decision” will be applying the law as it exists (which includes fair dealing) not as Access Copyright would like it to exist.
Fast Fact 4:
The proposed increase has been grossly exaggerated by critics.
The tariff blends two previous fees, and covers extensive digital copying not covered by previous agreements. The tariff represents a tiny fraction of one percent of university budgets. It’s the university’s or college’s decision whether to absorb the small additional cost, or pass it on to students. Some academics say there should be no payment at all; however professors do not work for free, and their unions are silent when pay increases they demand get passed on to students.
Here it would be helpful,very helpful, if Access Copyright could specificy exactly where the effects of the tariff are being exaggerated by critics. They can start with the thoughful submissions that have been filed and point to specific text where they want to allege there is an exaggeration. in terms of the dollar amounts involved, let's put the whole thing in some perspective. According to Access Copyright's 2009 Annual Report
Fast Fact 5:
Most countries have licensing regimes that include the education sector.
It’s misleading to allege, as some have, that exemptions in U.S. law for educational use make mass copying free. While the law is different in Canada and the U.S., in neither country is it permissible to make copies on a massive scale without a licence. It’s the essence of copyright.
Fair dealing is certainly not "free dealing." The proponents of expanding fair dealing through adding "such as" to the enumerated list of categories or now through retaining the new categories of education, parody and satire in scetion 29 have made thismuch clear. Even if your use satisfies one of the enumerated categories, you still must go through the factual analysis under the six part fair dealing critera. So much is clear from the recent Alberta v Access Copyright decision. The misleading statements about the scope of fair dealing have come largely from Access Copyright, its affiliates supporters.
“Fast facts” can be like “fast food” prepared for mass consumption by a busy public in a hurry. But let's not be in too much of a hurry here. Instead of digesting the tariff like a Happy Meal, let's lay out a table cloth, set some silverware, and slowly savour all of the sauces and spices that went into this strange stew of a tariff proposal. But be careful, there's a lot of gristle in the mix. Let's think about the implications of monetizing linking, creating burdensome reporting requirements and vitiating users rights; and let's do that very slowly and deliberatively.