The recent Canadian Federal Court ruling against York University and for Access Copyright has frustrated universities, librarians, and students while delighting publishers and authors. As a member of the former group, I am also annoyed and confused by this ruling that appears to directly contradict previous rulings by the Supreme Court (see Di Valentino and others).
I don’t want to dive into the exact problems with the ruling. Smarter people than me have done that it the last link. What I want to talk about is why this divide between users (universities, librarians, students) and creators (publishers, authors) has formed around fair dealing.
I was a bit taken back by the outpouring of joy from publishers and authors about this ruling. I know that in basic terms that it means Access Copyright gets more money, and so publishers and authors benefit. That it’s all about the money. That Canadian publishers and authors are currently struggling and this will help them survive.
I know all this.
I also know that weakening fair dealing puts the cost back on students. That Access Copyright’s loss of income from educational institutions is not solely the result of Fair Dealing, but largely caused by a boom in open access resources, new affordable licensing and textbook rental models, and, of course, piracy. That the divide between users and creators is a red herring in the copyright debate. Universities’ publish, students are authors, authors read and use material from the library….etc.
Bursts into courtroom: FAIR DEALING ALSO BENEFITS WRITERS AND CREATORS. STUDENTS ARE WRITERS AND CREATORS…LET GO OF ME! NO! STOP! pic.twitter.com/fvJWPzXH1b
— Ryan Regier (@ryregier) July 12, 2017
Fair Dealing was organized by the Supreme Court as a balance between creator and user rights. The “Fair” in Fair Dealing recognizes that a work can only create value and benefit in a society if reasonable usage of this work is allowed without needing approval from that work’s creator. Fair Dealing is not there to steal compensation from creators, but to work for the long-term/big-picture benefit of that creator and society as a whole. It’s like a tax or a health insurance policy. It does take income from you in the short-run, but overall it is better for everyone.
The Access Copyright vs York case was centered mostly around use of selections of works in course-packs. York Faculty put together these course-packs relying on Fair Dealing provisions for copyright clearance instead of Access Copyright clearance fees. Doing this saved students from having extra Access Copyright fees added to their tuition (adding already terrifyingly high student debt) or needing to pay more and purchase textbooks (Textbook costs are also a massive problem). Long story short: York University was using Fair Dealing to save students some much needed money.
Most current authors, writers, publishers were students at some point. That’s likely where they learned about their current genre/format of writing. Where they discovered the leaders in their field, became readers and customers, and built off that material to create their own works. Students that read and use more of an author’s work in university will likely grow up to be readers or peers of that author. These student/author and user/creator relationships are very intertwined. Fair Dealing holds these relationships together. It allows works to be discovered, appreciated, shared,and built-off.
Fair Dealing is for authors and publishers too. It may hit your wallet initially, but it’s better for all of us in the grand scheme of things. That’s why it is important, as stated by Supreme Court, that it shouldn’t be interpreted restrictively (CCH, para 48).
I think we in the librarianship community need to work on our outreach to publishers and authors to explain these big-picture benefits of fair dealing. It won’t be an easy task. Hopefully, in a few years we will see a new batch of early career professionals who have made use of fair dealing in school and understand its benefits.
However, maybe this isn’t the real solution here. The more interactions I have with copyright and intellectual property (IP) law the more frustrated I am by it. It seems set-up to encourage selfishness and greed instead of a willingness to share and build. Maybe the solution is that information shouldn’t be treated as property. Sam Popowich makes a good argument from this perspective to why creators don’t support fair dealing:
Their opinion on whether fair dealing is a healthy and necessary part of any copyright regime is beside the point, which is that they are forced to protect what little economic benefit they gain from the sale of their work by any means possible.
It has exciting to watch the growth of Creative Commons and the Open Access Movement over the last decades. Instead of trying to change governments’ copyright laws to support openness and sharing, CC has set-up a “separate” copyright regime that allows and encourages the two of these. The growth of the open access movement and open education resources has shown that it is starting to work. Students (and everybody else!) are starting to get access to more information resources for less.
Is it time for unis to setup OER offices & pay authors directly for new type of OE licence that allows use of 3rdpty works in perpt. online?
— Amanda Wakaruk (@awakaruk) July 12, 2017
This gives us a good three-pronged plan to work on:
- Work within the system: Continue to advocate and argue for Fair Dealing.
- Try to change the system: Lobby our governments to design intellectual property laws that encourage openness and sharing.
- Develop our own system: Support Open Access and Creative Commons.
A Way of Happening 
From the conversations I’ve had over the last decade+, the debate isn’t really about “Fair Dealings” at all, but whether collective licensing for educational uses of works are relevant any more.
We have seen both a rise in open access publishing (author pays) as well as royalty based (reader pays) educational databases. The vast majority of works used in the educational sector are already licensed, and there is only a fraction that falls into this debate.
If what we as a society want is to fund creators based on educational use of their works, then lets model that after the Public Lending Right (PLR) which is accountable to the taxpayers (provincial or federal) and goes directly to authors. We should avoid using outdated foreign-publisher dominated entities like Access Copyright which are extremely inefficient (approximately 30% overhead going to their lawyers/etc) compared to a properly managed government program. As a taxpayer, author and reader, I don’t want to be paying more taxes for an inefficient way to fund authors.
Thanks for commenting Russell. I think you might be right, we are trying to solve the wrong problem here! I’m all for a system that sees authors getting paid but doesn’t overly restrict how material can be used and shared.
I’m not that familiar with the PLR. Will look more into it! Thanks for pointing me in that direction
I think there was a lot of damage that politicians like Sheila Copps did, who saw extensions of the scope and term of copyright as a replacement for stable arts/etc funding. While the accompanied reduction of the spending from Heritage may have made departmental budgets look a bit thinner, it was bad public policy (both for creators and for their audiences/fans). Much of the money/control transferred away from creators/audiences to intermediaries who often stand as barriers to adopting modern distribution methods/etc (Outside of written works and problems with AC you have legacy “broadcasters” blocking legal streaming, and so-on).
Having a PER (Public Education Right) similar to the PLR, and extending the exception for public education, would be an efficient way to reverse some of the damage of trying to use copyright as a substitute for proper funding.
I’m an advocate of extending fair dealings to cover uses of works which are not available for license (region restrictions, device restrictions, etc) — essentially putting “effect on the market” as primary, suggesting there is no infringement in cases where there is no market. I see failures to offer reasonable licensing to be a much larger problem in copyright than infringement caused by any other problem. (See differences between “inducement” secondary infringement compared to “enablement”).