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
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: