National Post (National Edition)
Universities should stop stealing copyright material
Strong intellectual property rights underpin innovative economies. Canada's failure to accept this truth underpins its terrible innovation performance. Innovation is essential to productivity growth, which in Canada is anemic.
Copyright protects works like texts, film and music. Copyright law is essential to Canadian culture and yet it is increasingly undermined here. Even universities and the educational sector exploit a putative loophole in copyright law to pursue narrow economic self-interest by appropriating copyright-protected works without payment. In doing so, they mistake their best interest: universities and educators, both as knowledge producers themselves and for being entrusted to inculcate students with values like respect for property, ought to be most sympathetic to creators and the needs of the knowledge economy. That even they will unjustly appropriate intellectual property when given the chance demonstrates the critical importance of strong, clear laws.
In spite of two courts having ruled decisively in the York University case that universities' ongoing, massive, uncompensated copying of authors' works is unfair and entitles authors to damages, universities continue to copy away and leave their debts unpaid. (York is the named defendant, but it represents university policies across the country). The Supreme Court is to hear an appeal of the York case on May 21. Both sides are appealing a Federal Court of Appeal judgment that, on the one hand, confirmed the university's copying was unfair and wrongful but, on the other, also deprived Access Copyright, the collective representing creators, of its legislated right to collect the debts owing.
The Copyright Act allows copying without permission for certain limited purposes
if it is done in a limited, “fair” manner, as determined in accordance with court-established criteria. “Education” is a permitted purpose in the fair dealing section of the Act, and universities also claim that the fair dealing guidelines they have established make their copying fair. The courts, however, have said the guidelines aren't fair and York hasn't followed them anyway.
In arguing that fairness has improved, Universities Canada states in its intervention request that each of its members has, since 2012, added on average two additional full-time staff dedicated to copyright (for larger universities, it's a bigger number). That translates to 154 people across Canada, excluding Quebec (which has a different copyright administration
and has settled these issues). At university salary levels, this means universities are spending as much building bureaucracy to implement unfair copying as they would for licences to copy legally (based on the Copyright Board Approved current tariff of $14.31 per student). Such licences are easily obtained from Access Copyright, which administers national copyright licensing with a staff of only 25 people. Add the universities' undoubtedly immense litigation costs to the salaries of those 154 new personnel and taking things for free is suddenly very expensive. What a waste!
But it's worse than waste. Money collected by copyright collectives encourages production and dissemination of creative work. Compliance
staff don't create. They also divert instructors toward freely available, older works in the public domain. Students should be indignant about education based on a narrower selection of materials, many more of them out of date. It's a bad bargain. We are entitled to better management of these publicly funded institutions.
For fair dealing, “education” became a permitted purpose in the 2021 Copyright Modernization Act. This was a misstep: “education” doesn't belong. The rest of the fair dealing exceptions are there to encourage literary culture. “Education” erodes it by effectively exempting a whole, major market for such culture — no doubt in some cases the only market for it. Other permitted uses like “criticism or review” and “news reporting” and even “research” and “private study,” properly construed, aren't primarily consumption; instead, they encourage discussion about and interest in emerging works. To add “education” compounds the Supreme Court's error of interpreting “private study” to be itself a broad education exception.
If “education” isn't removed from the fair dealing section, and the Supreme Court doesn't reverse its overly broad interpretation of “private study,” then educators should be required to take a licence for a work if one is commercially available, before being able to rely on fair dealing to copy it. Otherwise, the publishing industry will continue its decline and authors will be even poorer.
It's frustrating that Canada's education sector prefers to impoverish Canada and its culture while bloating its own payrolls. Kudos to the first university president or minister of education who abandons her error and shows some leadership.