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Copyright Fear Mongering Hits a New High: Writers Groups Post Their C-32 Brief

By Michael Geist

A coalition of English-language writers organizations have publicly posted their response to Bill C-32.  Despite an ideal opportunity for constructive dialogue and a good faith effort to find compromise positions on the more contentious elements of the bill, the groups have chosen to increase the level of fear mongering with a misleading and often inaccurate document that implausibly claims the end of Canadian publishing is near if C-32 is passed in its current form. 

Perhaps most disappointingly, the groups had promised in August to offer "constructive suggestions", particularly on the issue of fair dealing, which was said to require clear legislative guidance.  Rather than offering proposed language for such guidance, the groups simply want to hit the delete key.  Inclusion of education as a fair dealing category?  Delete.  Non-commercial user-generated content?  Delete.  Digital inter-library loans?  Delete.  Format shifting for private purposes?  Delete. 

At a time when the opposition parties are asking for constructive advice on how to determine the confines of issues such as fair dealing, the writers groups maintain that there is no scope for including education as a category and refuse to offer any suggested language to improve the bill.  Instead, they offer hyperbolic claims about how C-32 violates international copyright law (despite the fact that the U.S. typically offers more flexibility on these issues) or will result in unfettered copying (ignoring the fact that fair dealing includes a test for determining whether the copying is fair).

The full issues and recommendations section from the document (in italics) - along with a much-needed reality check - are posted below:


1.    Expansion of "Fair Dealing" to education

Issue

Bill C-32 as drafted would expand the current purposes of "fair dealing" to include "education". This appears to be an enormously broad exemption of uncertain scope, added to an existing "fair dealing" exemption in the current Copyright Act that already allows educators and students, as well as others outside educational institutions, to reproduce copyright material for research and private study.

The exception is neither enormously broad nor of uncertain scope.  As the groups acknowledge, fair dealing already covers categories such as research and private study, which accounts for a significant amount of copying that takes place within education.  The inclusion of education fills in some gaps, but is hardly a dramatic change from the current system.  Moreover, the scope is not uncertain since fair dealing analysis involves a two-part test. First, does the use (or dealing) qualify for one of the fair dealing exceptions. Second, if it does qualify, is the use itself fair. The extension of fair dealing to education only affects the first part of the test.  In other words, while Bill C-32 will extend the categories of what qualifies as fair dealing, it does not change the need for the use itself to be fair. The Supreme Court of Canada has identified six non-exhaustive factors to assist a court's fairness inquiry: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work.

There are also many specific exemptions for educational institutions in the existing legislation - cost-saving provisions that permit the copying of materials that educational institutions might otherwise need or want to purchase.

Many of the exceptions have little to do with cost savings or the avoidance of purchasing materials.  Rather, they merely offer clarity that engaging in things such as writing on boards does not involve an act of infringement.

If this new, unstructured educational "fair dealing" exemption were to become law, educators would claim that most of the massive widespread copying that takes place in educational institutions is "fair dealing".

False. The Federal Court of Appeal ruled this summer on the limits of fair dealing within education and noted that the inclusion of education as a category would not have changed its analysis.  All copying within education would still be subject to a fairness analysis, making it very unlikely that educators would make such ill-advised claims.

Business corporations would also benefit at the expense of rights holders, as "fair dealing" for the purpose of education is not restricted to non- commercial users, and there will be no lack of newly, self-styled "educators".

Anyone seeking to rely on the education category within fair dealing would still have to prove that the dealing was fair.  The fact that some may try to fit within the education category would change very little, given that today they might be similarly inclined to argue that they are engaged in research or private study. 

If courts were to interpret this proposed provision as broadly as its wording invites, Canada would be in breach of the Berne Convention and similar international obligations.

If Canada is in breach, so too are many other countries.  For example, the U.S. fair use provision has no limits on the categories that may qualify as fair use.  The Canadian equivalent - even with C-32's reforms - is more restrictive.  There seems to be little risk of a claim against Canada that would not also call into question rules elsewhere.

Potential Impact

Because neither users nor rights holders will know the bounds of what can be copied as "fair dealing" for the purpose of "education", the new fair dealing provision for education will encourage litigation to determine what can be copied without a license.

False. The test of fair dealing is well known to all and the prospect of widespread litigation is very remote.  While there may be the occasional case, this would be consistent with fair dealing in Canada over the last decade, as there have been a handful of cases that have provided all parties with considerable guidance on the test for fair dealing.  It is also open to the government and opposition parties to codify the test within the law to further remove any perceived uncertainty.

Because educational uses represent approximately 85% of the revenues collected by Access Copyright, Canadian English-language writers will no longer receive significant payments from Access Copyright. Currently almost 9,000 writers are signed up with Access Copyright. In 2009, affiliated writers received about $600 each, with a few receiving considerably more, for copying during 2008. Quebec writers affiliated with Copibec will also receive much less. This new free use would represent a significant loss to independent professional writers, whose average annual income from their writing is under $20,000.

Potential reductions in payments to Access Copyright have little to do with fair dealing.  To the extent payments may go down, this reflects changes in the way education accesses works, including campus-wide licencing of materials in databases, open access to materials, book purchases, and individual licencing.  These alternatives may result in offsetting increases in payments to writers and publishers through non-Access Copyright licencing.

Because of reduced sales of their books as a result of widespread uncompensated copying, the educational publishing sector in Canada will contract dramatically. Educational publishers will receive less revenue and will cut back on the number of titles they produce. Lower revenues will make it impossible for some publishers to stay afloat and others will be forced to reduce their publishing programs. This will mean a significant loss of income for the writers whose work is included in books published for educational markets.

There is simply no evidence that fair dealing will lead to widespread uncompensated copying or reduced sales since all copying must still meet the fair dealing test.

Publishers of trade books, such as novels, poetry and non- fiction will also see their market shrink because of widespread copying. These publishers will lose income, make smaller royalty payments to writers and cut back on both staff and their lists of new books. Trade book publishing houses will shrink in size and some may not survive.

False. It is inaccurate to suggest that full copies of novels will be copied without compensation due to the fair dealing reforms.  Such suggestions is fear-mongering at its worst.

Layoffs across the publishing sector in Canada will reduce Canadian-created content in schools, colleges and universities.

Once again, fear mongering without evidence.  If anything, new methods of distribution are increasing the creation and availability of Canadian content.

Writers will see their markets for existing works shrink, and it will be more difficult to get new works published because of publisher cutbacks. This will detract from their professional contribution to Canadian society.

Greater flexibility within the law may actually increase the market for existing works and increase opportunities for Canadian writers.

Universities, colleges, ministries of education, school boards and other educational institutions will save a relatively tiny percentage of their annual expenditures but will be faced with a significant reduction in the number and quality of Canadian publications that reflect Canada's citizens and culture.

More fear-mongering without any evidence. If anything, schools and universities re-thinking their approach to licencing materials may find that they have more money available to invest in Canadian publications with publishers more than ready to offer new choices.

Recommendation   

Delete "education" from the list of purposes of "fair dealing". Any exceptions should be clearly delineated to reduce uncertainty for both users and rights holders and the likelihood of prolonged and costly litigation.

After months of calling for legislative guidance on fair dealing, it is shocking to see these groups call for the absolute deletion of education from the list of fair dealing categories.  The inclusion of education is a small step from the current approach and wholly consistent with the Supreme Court of Canada's view of fair dealing and copyright as a balance.

2.    Non-commercial user-generated content or "Mash-ups"

Issue   

Bill C-32 as drafted allows anyone to incorporate entire existing works into a "new" work without permission or payment as long as the use is non-commercial, but there is nothing to ensure that any such new use will be fair. Professional writers may not object in principle to others incorporating reasonable excerpts from their works into new creative works as long as they are credited and the use is truly non-commercial and if the new work does not interfere with the market for the original work.

This is precisely what C-32 proposes.  The provision is limited to non-commercial purposes, providing attribution if it is reasonable in the circumstances to do so, ensuring the underlying work is not infringing, and confirming the use of the work does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work.  In other words, the provision is very narrowly tailored and features protections for the original creator.

However, distribution of these so-called "mash-ups" by commercial disseminators such as Facebook or YouTube without payment encroaches peremptorily and unfairly on writers' rights. Whether there is "a substantial adverse effect" on the original work, which would result in an infringement, will not be known until too late and may depend on how many others create "mash-ups" using the same work. This feature of C-32 represents an erosion of rights that does not exist anywhere else in the world and that would certainly put Canada in breach of the Berne Convention and similar international obligations.

False.  The limits of the provision draw directly from the Berne Convention's three-step test as it is designed to be limited and not to apply where it significantly harms the market or potential market for the work.

Potential Impact

Without clear rules to ensure fairness to the creators of the works incorporated in "mash-ups", the market for existing works and for sequels, films, games and other derivative works based on those existing works may be destroyed.

The provision provides clear rules and protects against harming the market for existing works.

For example, "fan fiction", if widely disseminated on the Internet, could deter a publisher from subsequently publishing an author's own sequel to his or her own novel.

Fan fiction is already widely disseminated and frequently increases the marketability of the original.  In fact, attempts to stop fan fiction raise serious free speech issues.  It is shameful to find writers groups seeking to stop others from writing and engaging in original creativity.

Or, a teacher could develop and post course materials on a website, such as a collection of articles or an anthology of poems, which other teachers could access freely and use in preference to a coursepack licensed by Access Copyright or an anthology made available commercially by a publisher. Writers will not be paid for these uses which piggyback on their work.

The claims that a non-commercial user generated content provision could be used as a substitute for coursepacks in education is so absurd as to not merit a full response.

Recommendation   

Delete the "mash-up" provision and engage in consultation with authors on how such a provision might be structured to allow reasonable use of another author's work in a new work while ensuring "fairness" to that author whose work is used.

Again, the writers groups simply want to hit the delete key, much like the instances where rights holders have demanded that parents delete home videos of their children because a song was playing in the background.  Bill C-32 rightly protects this form of speech and does so in a balanced way that respects and protects creators.

3.    "Interlibrary Loans"

Issue   

Bill C-32 expands the existing exception for "interlibrary loan" to allow digital delivery directly to the computer of a reader. One copy of a book, magazine, journal or newspaper purchased and held by a single library can be the source of material delivered directly to the computer of every library patron in Canada.

This takes fear-mongering to a new level as the writers groups now claim that a digital interlibrary loan provision so restrictive that many in the library community find it useless could result in just one copy being purchased of a book for all of Canada with massive digital distribution and sharing of that single work.  The reality is that the provision is limited to digital copies requested through other libraries, the digital copy must be restricted so that the copy cannot be distributed to any other person, and it must be rendered unusable after five business days.  Indeed, the provision is so narrow that the government should be working on removing some of the restrictions, not removing the provision itself.  Moreover, some on the library community argue that digital delivery of loans is already permitted by the existing fair dealing provision in the Copyright Act.

It is already possible for a single library to provide material digitally to another non-profit library, archive or museum, but the copy must not be given to the person who has requested it in digital form. Free electronic delivery by these institutions will pre-empt rights holders' sale of electronic books, magazines and other electronic materials that are in the holdings of a library and can be obtained without charge anywhere in Canada and also would preclude Access Copyright from ever authorizing electronic delivery to library patrons as part of its license or tariff for libraries, archives and museums.

Many of these materials are not obtained via an Access Copyright licence at all, but rather are licenced independently.  The suggestion that Canada should restrict the availability of materials in digital form so that Access Copyright can charge for it, runs counter to current practices and to the goals of a country focused on enhancing the role of the online environment to access to knowledge.

We are not aware of any other country that has a similar provision for legalized "sharing" of materials held by libraries, archives and museums that are open to the public and we believe it would breach Berne and other similar treaties.

False. This is a very narrow provision that clearly complies with international copyright law.

Potential Impact

A source of revenue for writers and publishers will evaporate before other, long-overdue revisions to the Copyright Act are enacted to make the digital distribution by libraries more secure. Royalty income from photocopying in libraries, now licensed by Access Copyright, is very modest but will decline as digital delivery becomes the norm, unless Access Copyright can license digital delivery.

Access Copyright income may decline, but it is not a result of this provision.  Rather, libraries are finding new ways to access works - particularly through open access and licenced databases - which already provide digital delivery rights without the need for an Access Copyright licence.

Recommendation   

Delete the amendment to the "interlibrary loan" exception that permits direct digital delivery to library patrons and allow collective societies an opportunity to offer a license to libraries, museums and archives that will include digital uses. The principle of copyright payment for reproduction of published works - formerly almost exclusively by photocopying and soon almost exclusively by electronic or digital means - must remain intact.

The government should not be in the business of propping up a single business model - in this case licencing digital copies through Access Copyright.  Digital interlibrary loans are a logical extension of longstanding lending policies that meet the needs of libraries, patrons, and the broader public, while providing protection for authors. The brief is asking the government to support Access Copyright rather than public access, a dangerous and misguided approach.

4.    Reproduction for Private Purposes

Issue

Professional writers do not object in principle to reproduction of their works, if legally obtained, for the truly private use of individuals. There is not and has never been any problem with the lending of a work as embodied in a physical object. But when works are in digital form and downloaded or reproduced to make additional copies without payment for unspecified "private purposes", writers are deprived of income.

This represents an incredible leap of logic.  Note that the provision only applies to format shifting of works from non-infringing, legally acquired copies of works that may only be used for private purposes.  It is not clear how writers are deprived of income for such copies.  If anything, the clear right to make such copies increases the likelihood that consumers will purchase these works in the first place and the right to copy would be completely consistent with consumer expectations in making the original purchase.

We are not aware of any other country that has such a broad provision for uncompensated use by individuals and believe that it will violate the Berne Convention if implemented without substantial amendment.

The U.S. fair use provision has been used to cover similar copying for more than two decades.

Potential Impact

The impact of this broad exception for reproduction for private purposes is unpredictable, but it will certainly deprive writers of income and result in greater use of technological protection by rights holders. More technological protection of works will further exacerbate the frustration of users and ultimately encourage "hacking" and a general disrespect for intellectual property.

This prediction exhibits remarkable disrespect for Canadian consumers, viewing them as little more than ATMs, who can used for regular withdrawals.  The fact that the writers groups admit that rights holders may increase the use of digital locks to stop consumers from viewing or reading content they have purchased on the device of their choice demonstrates why C-32 needs a clear exception for circumventing locks to exercise such consumer rights.

Recommendation

Engage in consultation with rights holders and users specifically on the exception for reproduction for private purposes. It is premature to enact a broad exception that includes format shifting prior to ensuring adequate compensation for rights holders. Consider a copyright levy on Internet Service Provider (ISP) accounts.

It is hard to understand how there is any connection between a new levy on ISPs and consumers having the right to view or read content they have purchased on the device of their choice.  The proposal provides a fitting conclusion to the brief, which seemingly views consumers, students, educators, and ISPs as little more than sources of revenue whose only rights are those determined by the creator.  There is no balance in this vision of copyright and for that reason it should be soundly rejected by Canadian MPs.

Full post as published by Michael Geist on November 15, 2010 (boomark / email).