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?A Response to Professor Michael Geist’sClearing Up the Copyright ConfusionBy Dan Glover*Abstract·The creation of copyright works for educational uses is a complex and substantial endeavour,particular in a country as large, diverse and sparsely populated as Canada. Careful thought should be givenbefore adopting fair dealing rules that threaten the health of educational publishing.· "Fairness" is an eye-of-the-beholder concept that must be revisited on the facts of every new case.Only six years after the landmark CCH case on “fair dealing”, this issue is returning to the Supreme Courtfor a second review!· By exposing all copying with any connection to “education” to a vague fairness assessment, Canadarisks violating its international treaty commitments. Such a broad and ambiguous phrasing would beunparalleled among the world’s major trading partners.·The government’s stated desire to promote new technologies in the educational setting would be farbetter achieved by implementing targeted exceptions that will not be vulnerable to abuse.*Dan Glover is an associate in the Intellectual Property Group at McCarthy Tétrault LLP. Thiscomment is written in Mr. Glover’s personal capacity.
Sowing New Confusion? A Response to Professor Michael Geist’sClearing Up the Copyright ConfusionBy Dan Glover1) Introduction
In mid-December, Professor Michael Geist published a blog entryentitled “Clearing Up the Copyright Confusion:Fair Dealing and Bill C-32”, a comment on the government’s proposed addition of another user right in the form of “fair dealing for the purpose of … education”. He concludes that this reform would not affect the balance betweencreators of educational materials and the users of such materials.Of all of the critically important amendments proposed in Bill C-32, this reform may have the largest measurableimpact. Professor Geist himself hasnotedthat educational institutions and students currently spend more than a billion dollars a year on books and hundreds of millions of dollars on access to educational databases. Arepresentative of the rightsholder collective Access Copyrighttestifiedbefore a Parliamentary committee thatCanada's education sector alone reproduces more than half a billion pages of text for use in classrooms. Currently,authors are compensated for much of this copying because only a percentage of these copies is made for allowable“research” or “private study” purposes. Under the new regime, any educational purpose would be an allowable purpose, leaving it up to courts to decide whether or not the dealing is fair. While estimating the potential futurelosses to publishers resulting from the change will never be an exact science, projections raised in committee haveranged between$40-million per year (Bloc MPs Carole Lavallée and Serge Cardin) and$60-million per year
(Access Copyright). Due to concerns about the breadth of this reform, both theLiberal Partyand theBloc Québecois
have suggested that they will seek to amend this provision.It must also be remembered that the educational marketplace in Canada is an intricate ecosystem with characteristicsthat are not present in larger marketplaces such as the United States. While certain popular texts will receive widecirculation in Canada, many other texts will be aimed at far smaller marketplaces. Any legislative rule must becalibrated to avoid disincentives for authors and publishers to publish new educational works for these smaller marketplaces, such as those aimed at cultural and linguistic minorities. With so much at stake, the importance of correctly evaluating the policy implications of this particular provision cannot be overstated.Unfortunately, I do not have the same confidence as Professor Geist that the effects of the proposed amendment will promote new technologies while minimally impairing the interests of authors and publishers. In particular, I amconvinced that Professor Geist significantly understates the potential impact of the proposed new educational fair dealing exception, in part because he places too much faith in the second “fairness” stage of the fair dealing test togovern behaviour in the marketplace. Further, Professor Geist’s survey of other laws omits a principled analysis of whether the proposed exception risks putting Canada offside its international treaty commitments, in particular thethree-step test enshrined by TRIPS and the Berne Convention for the Protection of Literary and Artistic Works.In responding to Professor Geist, I offer the disclaimer that although this blog entry is my personal opinion and was prepared in my private time, part of my understanding has been developed through retainers as counsel for a number of rightsholder organizations in this field. (As counsel, I have also advised numerous institutional users of copyrighton their fair dealing rights, and appreciate that users have real concerns with respect to managing use of copyrightworks in a complex technological landscape.)As a final introductory point, I should note that it is not always easy to respond to Professor Geist, primarily due tohis a tendency to make bold pronouncements without explanation or support. A representative example is Professor Geist’sstatementthat “Educational institutions and students spend over a billion dollars each year on books andhundreds of millions of dollars on licencing [
sic
] for access to databases. That will not change with the inclusion of education within fair dealing.” Professor Geist does not provide a source or a rationale for this critically important prediction. Furthermore, he tells a different story elsewhere intestimonybefore a Parliamentary Committee, wherehe admitted that the fair dealing for education reform would result in lost revenues for authors and publishers:
Mr. Pablo Rodriguez (Honoré-Mercier, Lib.):
Regarding the education example, don't you think that the exemption, as it is now, would cost revenues to someof the creators, writers, or producers?
Prof. Michael Geist:
Right. As I mentioned in my opening remarks, I think that any copying that takes place, including under thenew exception for education, must still be fair. It would be disingenuous to argue that there is going to be nocopying that's currently compensated for that might now fall within fair dealing, but by definition any copyingthat does indeed qualify through the court's analysis is fair. [Emphasis added.]Given such disparities in message, and given Professor Geist’s
ad hominem
complaint that rightsholders have made“misleading claims about potential losses, inaccurate comments on copyright and Internet materials, and dubiousarguments about the compliance of the reforms under international copyright law”, it has been necessary to respondat length to the main contentions in Professor Geist’s blog entries, articles and testimony.
2) Why Is Educational Publishing Important?
Canada is not the first country to step to the brink of considering creating broad exceptions to copyright to reduce public expenditures for education. While Professor Geist tells the story of the United States and Israel to promote hisdesired result, the experience of the United Kingdom explains why passing such an exception may lead tounanticipated and undesirable results.In the United Kingdom, the case for not treating educational publishing differently than other sectors of the publishing industry was made by the Whitford Report as long ago as 1977. Decades before the age of the Internet,the makers of the Report recognized that there was an ongoing friction between the educator’s desire to promote“new methods of teaching” and the rights of publishers and authors. The Whitford Committee’s conclusion, which isworth quoting at length, was that governments should resist the temptation to save on education funding by drainingthe resources of publishers and authors, on the grounds that it was a self-defeating exercise:The needs of education in modern society are changing. In the new teaching situation […] it is no longer considered appropriate for text books to be issued to each pupil. We were told that new methods of teaching andlearning require the use of a wide range of teaching material to meet the particular needs of a student or groupof students. This concept of ‘resource-based learning’, whether applied to independent or class activity, wassaid to require the availability of a diversity of material, extracted from a great variety of sources.[…]In view of the growth of reprography as a problem in the educational field since the time of the GregoryCommittee, we have considered first the question whether there should be any express exceptions in favour of educational establishments at all. We feel that the fact that “education” is a good cause is not in itself a reasonfor depriving copyright owners of remuneration. Nobody suggests that the makers of notebooks, compasses andrulers should supply these products to educational establishments free of charge. Although the types of materialused in such places today are very different from the text books of the past and indeed are much more diverse,education is still in a large measure dependent upon the work of authors, artists and composers. Education isequally dependent upon the work of the publishers who first produced the material which the authorities want tocopy for educational purposes.(
Report of the Committee to consider the Law on Copyright and Designs
(London: Her Majesty’s StationeryOffice, 1977) at paras. 254-56, 268-69)In evaluating the same issues recently in a copyright dispute between educators and authors, the UK CopyrightTribunal affirmed the Whitford Report, and warned that crossing this line could destroy a longstanding symbioticrelationship between publishers and the education system:
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Glover Clearing Up the Copyright Confusion
A Response to Professor Michael Geist’s Clearing Up the Copyright Confusion
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