Supporters of collective administration of copyrights often promote collectives as the silver bullet that solves copyright law’s underlying dilemma: how to provide incentives for creators, without unduly limiting access to protected works. Collectives often argue that they do both. This kind of argument was presented to the Supreme Court of Canada last week. At the opening of his oral argument in the education fair dealing case, Access Copyright’s counsel asserted that the outcome of the case has no effect on students’ access to educational material. “There’s no issue of access here”, he said. “The students are going to get the material. The only issue is whether the government is going to pay for it or the authors are going to subsidize it.” (You can watch it on the archived webcast, at the 138th minute).
Both claims, that the question before the Court has no effect on students’ access to works, and that a ruling adverse to Access Copyright’s interests means that authors are going to subsidize education, deserve greater scrutiny. This post deals with the claim that the question before the Court has no effect on access to works by students. I will address the claim about authors subsidizing education in a separate post.
The argument that the decisions under appeal have no effect on the ability of students to access works is flawed in several respects:
First, recall that at the heart of this appeal is the Copyright Board’s ruling, upheld by the Federal Court of Appeal, that copies made by or at the initiative of a teacher couldn’t be considered fair dealing. The answer to whether this interpretation of the Copyright Act is correct applies to every work protected by copyright, not only to literary works, and not only to those in Access Copyright’s repertoire. Therefore, the Court’s answer to this question will determine not only how much money will Canada’s schools have to pay Access Copyright, but also more generally what copyright law allows educators to do without getting the permission of copyright owners. If the Supreme Court upholds the problematic distinction between copies made for “teaching” or “instruction” and copies made for “private study”, a teacher would not be legally permitted to make certain copies of works that are not part of Access Copyright’s repertoire, even if the tariff is fully paid. Access to such works will undoubtedly be impaired.
This point is not theoretical, because Access Copyright’s real repertoire is probably significantly narrower than what it would like its licensees to believe. In the proceedings before the Copyright Board Access Copyright argued that more than 99 per cent of works reproduced by educational institutions are currently part of its repertoire, but provided no supporting evidence. The Objectors challenged this assertion, but the Board glossed over the issue (see paras. 179-183). For some reasons, the Objectors chose not to raise the issue in the appeal, but the claim seems to be spurious even in the K-12 context. In the post-secondary context, Access Copyright’s repertoire covers only a fraction of the works that are or could be used (you can read more about Access Copyright’s repertoire–or lack thereof–here, and here, at p. 17).
The second flaw in the argument that the Court’s ruling will have no effect on access to works is that even with respect to the works that are part of its repertoire, the tariff that the Board approved permits only certain limited uses of those works. For example, it permits copying of no more than 10% of a book, or a single chapter from a book provided that it is not longer than 20% of the book. Therefore, if a teacher wants to copy more than 10% of a book, and fair dealing cannot possibly apply to such copying, not matter how fair the copying would otherwise be, access will be unquestionably impaired.
Thirdly, beyond its legal shortcomings, Access Copyright’s argument defies the basic laws of economics and ignores the fact that money is a scarce resource (even for the Province of Alberta, to follow Justice Deschamps’ remark at the hearing). In a world of scarce resources, schools required to pay more money to Access Copyright will have less money to spend on other things, including books. Although theoretically, the tariff entitles educators to make copies from any work in Access Copyright’s repertoire, in practice, a teacher can only make a copy from a book that is physically in the teacher’s or in the school’s possession. When budget is not unlimited, a higher tariff means that schools will be paying more for using the books that they currently have, and consequently will buy fewer additional books beyond the bare essential. Therefore, a higher tariff necessarily means less access. Contrary to the assertion of Access Copyright’s counsel, the students are not going to get the material. They will not.
This scenario is not merely hypothetical. The already dire situation of Canada’s school libraries should serve as a good reminder. Moreover, in post-secondary education, it has been well documented that the consolidation of the academic publishing industry over the last few decades and the licensing practices of the major commercial academic publishers has led to an escalation in the price of periodicals and forced libraries to cut back on their purchase of monographs. This highlights another issue that tends to be overlooked. When publishers (and some collaborating authors) can collude and raise the prices of the most essential books (or reach the same outcome with the imprimatur of the Copyright Board), those who pay the price are not only the users, but also other authors and creators–the majority of Canadian authors–who do not share the monopolistic loot and get to sell fewer works.
Lastly, the question is not just about money and payment. It is also a question about speech. Our current copyright regime is generally one of exclusive rights, not just an entitlement for remuneration. Exclusive rights mean that permission is required. The holding that copying initiated by a teacher is categorically excluded from the purview of fair dealing means that making such copies requires the copyright owner’s permission. But when permission is needed, permission can be denied, or permission could be granted subject to terms not limited to payment, such as restrictions on how the work is used. Suppose, for example, that a teacher wants to engage the class in a critical discussion of a certain text, say an op-ed published in the newspaper, and that the teacher hands out a copy for each student so that the students can read it closely. If this act is categorically excluded from the purview of fair dealing, regardless of any measure of fairness, the implication is that the copyright owner has veto power over this kind of discussion. The owner can determine whether this discussion takes place at all or under what conditions it may be allowed. Therefore, the issue is much broader than who pays and how much is being paid. The issue is who controls speech.
Access Copyright’s counsel attempted to assure the Court that access is not an issue. This is consistent with the efforts to promote Access Copyright (whose official name is “The Canadian Copyright Agency”) as an entity that facilitates access to copyrighted works. Several years ago it even changed its trade name from CanCopy (often nicknamed as Can’t Copy) to Access Copyright. But labels can be misleading. Access Copyright does not promote access. For a hefty price, it may facilitate access to some works. But at the same time, it reduces access to others.