Court de­ci­sion a big win for au­thors

Advertiser (Grand Falls) - - Editorial - Rus­sell Wanger­sky’s col­umn ap­pears in 30 SaltWire news­pa­pers and web­sites in At­lantic Canada. He can be reached at rwanger@ thetele­gram.com - Twit­ter: @wanger­sky

I’m far from a dis­in­ter­ested observer in this. (I’ve made this dis­claimer be­fore, but for clar­ity, I’ll do it again - away from the news­pa­per busi­ness, I’m an au­thor of seven books, with work in an­tholo­gies be­yond my own books.)

And I’m feel­ing a lit­tle bit vin­di­cated.

For years now, uni­ver­si­ties and col­leges in Canada have been op­er­at­ing un­der guide­lines on “fair deal­ing” that were drawn up by the As­so­ci­a­tion of Uni­ver­si­ties and Com­mu­nity Col­leges (AUCC) when it comes to copy­right. In­stead of pay­ing au­thors for their work, the guide­lines came up with a struc­ture that al­lowed uni­ver­si­ties to copy work and sell or give it to their stu­dents for free.

York Univer­sity was one of those col­leges. Ba­si­cally, York adopted the AUCC’s guide­lines, and, un­der them, copied and dis­trib­uted mil­lions of pages of copy­righted work. They did it with­out pay­ing the own­ers of the copy­rights, and ar­gued their ac­tions were le­git­i­mate be­cause every­thing was be­ing done for the pur­poses of ed­u­ca­tion.

(In this province, Me­mo­rial Univer­sity’s guide­lines mir­ror York’s guide­lines; they are also mod­eled on the AUCC’s “Fair Deal­ing for Uni­ver­si­ties” guide­lines, and were ap­proved by MUN’s Board of Re­gents in 2012.)

But af­ter a lengthy fed­eral court case against York by Ac­cess Copy­right, a copy­right col­lec­tive rep­re­sent­ing au­thors and pub­lish­ers, a judge has ruled that the uni­ver­si­ties so-called fair deal­ing guide­lines were a cha­rade.

Those are my words, not his. His were: “York’s own Fair Deal­ing Guide­lines are not fair in ei­ther their terms or their ap­pli­ca­tion.”

Judge Michael Phe­lan went on, “Weigh­ing the fac­tors and con­sid­er­ing the whole of the is­sue of fair deal­ing in the con­text of the facts of this case, the court con­cludes that the York Fair Deal­ing Guide­lines are not fair.”

The judge said that the guide­line on “fair deal­ing” had more to do with self-deal­ing than any­thing else - that York, and pre­sum­ably the other Cana­dian uni­ver­si­ties and col­leges us­ing the same model, were abus­ing copy­right rules for their own fi­nan­cial gain. They set guide­lines them­selves, the judge de­ter­mined, with­out even both­er­ing to con­sult with the own­ers of the copy­right of the works they de­cided to copy.

“It is ev­i­dent that York cre­ated the guide­lines and op­er­ated un­der them pri­mar­ily to ob­tain for free that which they had pre­vi­ously paid for. One may le­git­i­mately ask how such ‘works for free’ could be fair if fair­ness en­com­passes more than one per­son’s uni­lat­eral ben­e­fit,” Phe­lan wrote. “The goal of the deal­ing was mul­ti­fac­eted. Ed­u­ca­tion was a prin­ci­pal goal, specif­i­cally ed­u­ca­tion for end user. But the goal of the deal­ing was also, from York’s per­spec­tive, to keep en­rol­ment up by keep­ing stu­dent costs down and to use what­ever sav­ings there may be in other parts of the univer­sity’s op­er­a­tion.”

What’s it mean?

Well, the quick con­clu­sion, ac­cord­ing to the judge, is that “The In­terim Tar­iff is manda­tory and en­force­able against York,” so the­o­ret­i­cally, the univer­sity may end up hav­ing to pay for five years’ or so of copy­right fees. The amount of that fi­nan­cial penalty will be set in the next phase of the court ac­tion - to give an idea of the scale, the in­terim tar­iff that the judge is re­fer­ring to, if I re­mem­ber prop­erly, is $26 per full-time stu­dent, per se­mes­ter, for five or so years. Other uni­ver­si­ties will have to de­cide whether to pay, too, or face their own court ac­tions.

Af­ter that?

Well, prob­a­bly ap­peals - be­cause uni­ver­si­ties and col­leges have rolled some pretty big dice here. At this point, they’ve lost, and the prob­lem for the in­sti­tu­tions of higher learn­ing is that it is time to pay the pipers - of which I am one.

Rus­sell Wanger­sky

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