Under the current Copyright Act, short excerpts of work, typically ten per cent of a text, can be republished for education purposes without infringing copyright. This is part of the act’s “fair dealing” provisions. Many students at TRU have likely seen this in action when their professors photocopy a chapter of a book for readings in class.
Now, the Copyright Act and the fair dealing provisions that let work be used for educational purposes are up for review by a House of Commons committee on industry, science and technology.
This law is mandated to undergo review every five years. The last time the Copyright Act was reviewed was under Harper’s Conservative government in 2012, when the scope of fair dealing was expanded to include education, satire and parody.
While the act will likely be under review until early 2019, according to the committee, both student groups and publishers across Canada have been raising concerns over what they would like to see out of any changes to the act’s fair dealing provisions.
On April 24, the Canadian Alliance of Student Associations (CASA) was given the chance to present to the House of Commons review committee. They claimed that further restrictions to fair dealing would only lead to higher costs at the post-secondary level, hurting both students and educators.
Michael McDonald, executive director of CASA believes that further restrictions to the scope of fair dealing won’t necessarily make more money for publishers, but will instead restrict what content students can access in the classroom.
“Educators, who don’t have licenses to the content, might just decide to not distribute that material,” McDonald said. “It just means there is less diversity in the material presented in class and that affects the quality of education.”
Instead CASA believes that the Copyright Act should be left the way it is. Given that the law is still being interpreted, they believe it is something to let the Supreme Court sort out in future cases.
“Right now we feel that what is important is that the fair dealing be left intact, that there be no additional restrictions placed on it,” McDonald said. “It was something that was added to the Act in 2012 and it’s still new in copyright law, so it’s still being interpreted and it’s best to let the courts sort out the details.”
Much of the reason for this, McDonald says, is the transfer from a print economy to a modern digital economy. Models of publishing and distribution that worked in past decades simply aren’t as effective in a modern world where many texts can be found online, he added.
“Any restrictions on fair dealing would be like an attempt in 2001 to protect the music industry by protecting CD manufacturers,” McDonald said. “It is just not the format we engage in anymore and the act needs to be reflective of this.”
Though CASA and McDonald still want to make sure content creators are paid for their work, they also want to make sure there are no artificial barriers to content for education purposes.
“This pushes students to not access content. Sometimes, if they don’t pay for it, they just won’t access it,” he said. “We don’t think this is taking away from content creators, we think it is more of an opportunity to engage with the content they want and find interesting.”
Publishers however, realistically want the same thing. Their goal isn’t to restrict access, but simply make sure they are compensated for their work, says Kate Edwards, executive director of the Association of Canadian Publishers.
“We want to make sure that access remains in place for students and educators, but that when work is being used for instructional purposes, there is some compensation for those who created it,” she said.
Yet publishers across Canada believe that fair dealing isn’t the best option and have instead looked at the model in use before the Copyright Act was last reviewed.
“Before 2012 there was a license in place. There used to be a flat fee for students, plus a per page charge for copies and at a certain point, the post-secondary sector quite rightly said that is wasn’t practical anymore, as they were doing more digital course packs and sharing more material digitally,” she said. “A flat fee that covers both print and digital uses would be preferable, there are still schools that are licensed and that is the model they operate under.”
It is estimated that under the licensing model, students would pay an extra $26 a year, says Edwards. As such, she believes that concerns over costs to students are a distraction from larger issues surrounding the Copyright Act.
Though Edwards and the association would prefer to see a return to the previous model, she believes licensing and fair dealing aren’t completely mutually exclusive and cites the U.K. and Australia as good examples of this.
“Australia and the UK are good models,” she said. “In the UK there is a fair dealing provision that allows works to be copied, but where there is a license in place that license must be paid. If the material is available commercially, the provision is there to make sure they are compensated, but in cases where it doesn’t exist, it can be freely copied.”
Whatever the outcome of the review, it is clear that both sides want to maintain accessibility while not challenging the notion that content creators deserve to be paid for their work.
“There are lots of programs that are training people in creative industries, whether it’s design, journalism, creative writers or broadcasting,” Edwards said. “We are eager that so many students are wanting to come into the publishing business and we want to have a healthy business to employ them in the future.”