Universities need to stop stealing

Justin Trudeau was recently quoted as saying: “Our journalists, our artists have an important challenge function in our society, and we need to leave them free to do their work.” Free to do their work is one thing; working for free is another. If the prime minister continues to tolerate laws that all but prevent journalists and authors from being paid, how is he leaving them free to work? What freedom exists in penury?

Our creative industries are victims of flagrant neglect by Ottawa, in spite of an ongoing, much delayed Copyright Act review and a call to action from the House of Commons Heritage Committee. Online piracy is an urgent problem. So, too, are the chaotic state of the collective administration of copyright, and of “fair dealing” law, especially in education. A recent Federal Court of Appeal decision, Access Copyright v. York University, while confirming that education sector copying was unfair and illegal, also negated the means authors and artists rely on to collect royalties for that copying — namely, collective rights societies. It determined there was no binding legal obligation to pay these societies according to their approved tariffs.

Universities and other educational institutions take the position that under fair dealing legislation, as interpreted by Supreme Court of Canada case law, they may treat the creators of the works on which their instructors rely as, in effect, unpaid slave labour. They claim the right to copy vast swaths of their works to use in courses and course books, which they sell to students or display online, without any compensation for the privilege. They vaguely claim that their uses are “fair” and in accordance with the “fair dealing” provisions of the Copyright Act, and they don't pay at all — even though such claims are blatantly false, as the Federal Court and Federal Court of Appeal have both unambiguously confirmed.

Fair dealing has its role, but it isn't to be a fig leaf for theft in the millions of dollars. Educational institutions are more than 10 years and $150 million in arrears to authors — and this by the minimal and incomplete rates set by the copyright board to date. Universities are copying hundreds of millions of pages annually while simply thumbing their collective nose at authors and scholars. Enough is enough, prime minister. Theft of intellectual property is unconscionable. Such blatant abuse impoverishes our authors and puts the credibility of the whole system of allowable fair dealing at risk.

It was once normal — not so long ago, in fact — that universities paid for the texts they and their students used. Some of us bought actual books at university bookstores. The tyranny of the book declined, however, as technology allowed educators to tailor materials to their pedagogical ends — as in the music business, where one now compiles a playlist of individual tracks rather than have one's listening dictated by the structure of an album. The means for this tailoring changed as photocopiers gave way to digitization, but the principle is the same: copying that violates authors' copyrights.

The Supreme Court of Canada recently granted leave to appeal to both parties in York University. But that won't solve the problem. First, a decision takes too much time and the situation for destitute authors is urgent. Second, this is a uniquely Canadian problem, created because Supreme Court copyright jurisprudence has ceased to be well-grounded in the traditions and principles of our copyright law. The continuing efforts of lower courts to limit the damage caused by the Supreme Court's unpredictable interpretations aren't enough. The quasi-legislative efforts of this court need to be frustrated by clearer legislation.

Soon there will be many fewer new books. This will be particularly invidious for a small country such as ours, which needs homegrown perspectives on its culture and history. We are already seeing our publishing sector seriously erode from losing the education market. With the impacts of digital piracy, Google and the pandemic to contend with, it is all the more urgent that this be fixed.

I have been an adjunct professor at the University of Toronto for about a quarter century. I was executive director of its Centre for Innovation Law and Policy for many years and chaired the board of its Innovations Foundation. I believed in universities and gave a lot to ours. But it is now among the institutions that has decided to steal from creators. Will I want to teach at any university anymore? I don't know. The academic climate is not what it was — groupthink, socialism, dismissals of science, cancel culture and anti-Semitism are too prevalent. University administrations are weak and adrift. That their institutions are now being run as quasi-criminal enterprises — even if the crime is white-collar — further diminishes one's enthusiasm.

What's next? Will universities champion the idea that they shouldn't pay for professors' services, or for cafeteria food, or for heat? Indeed, why should any business really require compensation from the educational sector? Surely economics holds no sway over the academy! No more than morality and common sense do these days.

GETTY Universities and other academic institutions have long been treating the works on which their instructors rely as “unpaid slave labour,” writes Richard C. Owens.