by John Degen — @jkdegen
(image courtesy me and my little camera — you’d never see free degrees at Canada’s universities, but they sure claim a lot of writing for free)
This article was originally published in The Hill Times on October 9, 2012.
Bill C-11, the Copyright Modernization Act, received royal assent in late June (2012). As Canada’s professional creators wait to see how this controversial reform of the Copyright Act will play out once it is active law, we are getting a rather depressing preview of the most likely outcome.
Bill C-11, or rather one highly-disputed part of the bill — the inclusion of “education” as a fair dealing category — has already inflicted potentially irreversible damage to the incomes of Canada’s professional writers and publishers. Educational licences worth millions of dollars in annual royalty payments are currently unsigned and far overdue, royalty cheques uncut. Populist free culture advocates berate, abuse and insult the collective solidarity of Canada’s creative sector, while the educational publishing business broods under a dark cloud. Meanwhile, frontline teachers and students are more confused than ever about what they can and cannot copy.
Should Canada’s writers blame the government for this ugly situation? I don’t think so.
The federal government undertook an unprecedented consultation process during the design of Bill C-32 (C-11’s pre-election predecessor), and the work of the Bill C-32 and C-11 committees was as non-partisan and exhaustive as one could hope for. I certainly did not agree with the inclusion of the educational category. I think it was always bound to cause harm to writers and publishers who depend on royalties from established educational uses. But one can’t blame Heritage Minister James Moore, now former industry minister Tony Clement, or any of the committee members for thinking this was a benign reform. After all, the educational sector assured them it was a benign reform.
Educational representative after educational representative appeared before the copyright modernization committees and promised Canada’s lawmakers that the new fair dealing category would not harm writers or publishers.
Ramona Jennex, minister of Education for Nova Scotia, and chair of the Council of Ministers of Education testified before the Bill C-32 committee that “the amendments we’re suggesting…will not impact any of the creators or any businesses at all. Those things will stay intact. We’re not asking for anything for free. The education system, the sector, pays for licences and copyright, and will continue to do so. What we’re asking for with these amendments is to have things clarified.”
Jay Rahn, chair of the Copyright Committee for the Canadian Federation for the Humanities and Social Sciences, said “we did not aim these adjustments at avoiding certain costs in producing teaching materials. Indeed, educators believe that creators, a group that includes many teachers, should be fairly compensated for their work. This is intrinsic to copyright.”
John Staple, deputy secretary general of the Canadian Teachers’ Federation, assured Parliament: “Teachers are not in the habit of copying books, full works; they’re more in the habit of copying small extracts, one or two pages, two to three pages of works, but not copying full texts. That would not be fair dealing.”
Yet, after years of battling expanded educational interpretations of fair dealing, and increasingly ill-tempered tariff negotiations before the Copyright Board, writers and publishers were understandably doubtful. When we voiced our concerns, we were shouted down by free culture crusaders like Michael Geist, accusing us of “fear mongering,” (michaelgeist.ca, November 15, 2010,“Copyright Fear Mongering Hits a New High: Writers Groups Post Their C-32 Brief”).
Well, look where we are today. The education sector, egged on by free culture theorists, is now pushing for an overly-broad definition of fair dealing that will result in nobody paying for the copying of hundreds of millions of pages fancifully interpreted as “short excerpts.” This campaign has already damaged collective licensing, and has already deprived writers and publishers of revenue they could reasonably and legally expect at any other time.
The Association of Canadian Community Colleges has reportedly published a new fair dealing policy for its members that takes direct aim at existing licences and, if followed, would force writers and publishers to demand their rightful royalties through expensive litigation. The ACCC policy is not publicly available on their website; they seem to be keeping their cards close to the vest. But Geist has published the policy document on his blog, and generously added his own extremely broad analysis, concluding that existing collective licences provide “very little value to education, as fair dealing covers much of what the copyright collective currently offers educational users.”
The ACCC policy does not refer to the “two or three pages” presented to lawmakers by Staple. Instead, it claims “up to 10 per cent of a work” (so, 30 pages for a 300 page book) or even an entire chapter as fair dealing. It also makes the astonishing claim that fair dealing covers the inclusion of such copied material in educational course packs — a use that represents millions of dollars per year in royalty payments to authors.
If the ACCC formally implements this new policy, refusing to pay traditional royalties and pushing writers and publishers to the brink of legal recourse, it will tear an ugly rift in what has traditionally been a mutually beneficial partnership between culture and education. When that rift opens, I hope Moore demands answers from those who promised such damage would never happen.
John Degen is a novelist and poet. He is Executive Director of The Writers’ Union of Canada, an organization representing more than 2000 professional authors. He is also Chair of the International Authors Forum, which represents over 600,000 professional authors worldwide. Reach him on Twitter @jkdegen
Read John Degen’s most popular Medium article: 5 Seriously Dumb Myths About Copyright The Media Should Stop Repeating.
