Who’s Guarding the Gate?
by John Degen — @jkdegen
As Canadian universities controversially insist they may copy enormous amounts of published work for free, we’ve seen the rise of the Copyright Officer on campuses across the country. The CO is generally a non-teaching position charged with the respectful and conscientious clearance of copyright for educational purposes. Currently, hundreds of millions of pages per year are photocopied and/or scanned for student readings in Canada. For decades, those copies were all respectfully paid-for through licences — until 2012 when most schools across Canada opted out of licensing arrangements in favour of claiming the same work for free.
Authors reeling from a steep income drop are told to trust in the copyright knowledge and clearance skills of this rapidly expanding layer of academic middle management. Don’t worry, the copyright officers know the law, and they will guard the gate for you. They respect both the law and your work. They will make sure you are either properly compensated or otherwise dealt with fairly.
Okay.
So what, exactly, is this recent tornado of copyright confusion from Memorial University’s copyright office?
“Baby you can drive my car: A defence of fair dealing and copyright,” is an op-ed written by a Memorial copyright officer, Nancy Simmons, and published in the university’s house organ, the Gazette. Memorial tweeted the op-ed to the world on March 30th.
One problem. There seems to be very little copyright-related knowledge on display in the article. Instead, we get irrelevant platitudes about the nature of creation, and recycled rhetoric from a rapidly aging free culture movement whose ideas already feel stale and ridiculous less than a decade and a half after their birth.
Where to begin? Well, the article starts with a bizarre attack on a celebrated Canadian author, suggesting she is careless with metaphor. That’s right — Memorial’s guardian of copyright scolds Margaret Atwood (the multi-award winning author of seventy-some books, chock full of metaphor) for likening copyright infringement to theft, and then insists “intellectual property… cannot be equated with personal property.”
Why can’t intellectual property be equated with personal property, exactly? Ms. Simmons provides no explanation or supporting evidence. Instead, she constructs a counter-metaphor to Atwood’s, in which she herself equates intellectual property with — wait for it — personal property.
That book you wrote? It’s like a fleet of cars. When I buy one of the cars, you can’t stop me from giving it away if I want to. I bought it; it’s my property now.
This argument-like construction leans heavily on a tired and widely debunked assertion from libertarian free culture crusaders — the old piracy is not theft gambit, which goes something like if I make a copy of your book the original book still exists, so I haven’t stolen anything from you. How can it be theft if you still have the book? Nobody interested in respectful dialogue about copyright engages with such discredited rhetorical sleight of hand (see here and here for why infringement is, in fact, a form of theft). It’s deeply troubling to see such diversionary nonsense underpinning copyright talk at a university.
To be clear, what is stolen in copyright infringement is your right. When you create an original work, you are granted the exclusive right to authorize copies of that work (therefore, that right can have significant value in a marketplace). The work, the right, and the potential value are all part of your intellectual property. That’s the foundational architecture of the cultural economy.
If you’re a professional author, you use your exclusive right to negotiate agreements with publishers, authorizing them to copy the work in order to bring it to market, or you self-publish, retaining your right and hiring service providers for print and distribution. If someone else makes copies without proper authorization or clearance, and then distributes those copies in an established marketplace where you also sell your work, they have snatched a right that doesn’t belong to them. The exclusiveness of your right has been stolen from you, and the value of your work has been irreparably damaged.
And that is what authors in Canada are fighting for — respect for our hard-earned right to authorize large-scale copying of our work. That’s why two large Canadian universities now find themselves in court. That’s why Concordia University in Montreal was recently embarrassed by national media coverage of longstanding illicit scanning under their watch.
These things are happening because the exclusive right of authors has been left unprotected by bad law and even worse practice. Changes to the Copyright Act in 2012 may not have been designed to rip a huge loophole in the law, but an aggressive overreach by school budget-makers has torn away at traditional protections anyway, and the world’s creative industries now look at Canada in horror. The gates of copyright protection at Canadian universities have been flung open by an expanding regulatory vacuum and an insatiable appetite for cost-cutting — twin black holes of market failure.
Despite its title, nowhere does the Memorial op-ed actually address real fair dealing — the provision within (Canadian) copyright law allowing limited copying and use without permission — other than to say Memorial does not pay for fair dealing. Well, no kidding. If a copy is an actual fair dealing, you don’t have to pay for it. That’s the point of fair dealing. No-one pays for it.
“Ideas are not copyright,” Simmons insists.
Agreed. Of course, one doesn’t actually assert fair dealing to copy and use an idea from a work. Fair dealing has nothing to do with ideas. Both copyright and fair dealing are concerned with original expression, not ideas.
“Information isn’t copyright either,” we’re told. See above. Fair dealing has nothing to do with information. These are, kind of, the very first steps on the long road to understanding copyright.
Simmons seems to be suggesting that an author exercises the fair dealing provision when she builds on the work of an earlier author by incorporating ideas or information copied from the earlier work. Sadly, that’s a complete misreading of both the law and artistic practice. Unless you’re copying the work (not the ideas, not the information) word for word, neither copyright nor fair dealing are in the picture.
Such confusion about fair dealing is rampant among the populist hangers-on in the free culture camp, but one expects to see an inexpert grasp of the law there. Is it too much to ask there be no such confusion on the desk of a copyright clearance professional?
When Simmons writes “we pay for copying that goes beyond fair dealing” she seems unaware that Memorial’s definition of what goes beyond fair dealing is radically different from other measurements of the same territory. The Supreme Court has ruled that short excerpts (defined in court proceedings as 1 or 2 pages from a book) of incidental copying may be fair if used to supplement a lesson. Memorial’s copyright guidelines, on the other hand, claim a full 10% of a published work (i.e. 40 pages of a 400 page book), and not as a mere supplement or incidental class handout, but to republish in course packs as part of required reading.
There is a huge, economically disastrous gulf between those two definitions of fair dealing. Much of Canada’s creative economy is disappearing into that gulf.
The current dispute over fair dealing in Canada is about percentages and volume — how much of a work can be copied “fairly” — but it’s also about who can copy, how often, why, and just how negatively this copying may affect the market. With several ongoing court cases, a seemingly stalled Copyright Board, rapidly falling author incomes, and a legislative review of the Copyright Act scheduled for later this year, one simply cannot say there is anything settled about educational fair dealing in Canada.
Referencing her own “insatiable need to consume copyright,” Simmons concludes with this entirely uncomforting sentiment:
“I hope it all balances out in the end.”
If the last twenty years have taught us anything about copyright, it’s that hope is a terrible strategy for guarding the gates protecting our cultural works. I think it’s safe to say Canada’s authors remain unconvinced that universities are the best guardians of our copyright.
Government must step in with a firm regulatory structure, or there may not even be a gate the next time we look.
#fixfairdealing #focusoncreators
John Degen is a novelist and poet. He is Executive Director of The Writers’ Union of Canada, an organization representing more than 2,000 professional authors in Canada. He is also Chair of the International Authors Forum, which represents over 650,000 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.
© John Degen, 2017
