p2pnet - rss feed: Educational copyright online
p2p news view / p2pnet: CMEC - the Council of Ministers of Education, Canada - issued another press release on May 30, 2006 calling for special treatment for educators under Canadian copyright law for educational use of the internet. Do the educators need such treatment? What will happen if they get their wish?
CMEC says that:
For the education community, we believe a large part of the Internet is in the public domain, and we don’t want to see Canadian-made fences placed on the Internet’s public space. We simply don’t want the establishment of restrictive measures that will negatively affect the quality of education for today’s Internet-surfing generation and for future Canadian students and educators. (Emphasis added)
Excuse me - but if, as is surely the case, “a large part of the Internet is in the public domain”, then what is the problem? Somebody should explain to them that they simply don’t have to get permission or pay for using anything in the public domain. That’s what “public domain” means.
However, many educators apparently don’t understand certain basic copyright matters. They, and their advisors, are so enamoured of the notion of “respect for copyright” that they seem ready to pay Access Copyright (“AC”) - the reprography and wannabe electronic rights collective - just about whatever AC asks. Oh - they may say the rates are too high - but they still pay and there has never yet been a fully fought confrontation with AC over the rates, terms and conditions of licencing at the K-12 or post secondary level in Canada. A challenge is in the works at the Copyright Board and taxpayers can only hope that AC ends up with only a very small percentage of the $12 per student per year that is seeking. Whatever happens in this hearing will likely be the springboard for enormous future demands on the post secondary sector, which is arguably over-paying already in light of the fact that much of the current payments go to cover what is probably fair dealing - especially in the light of the 2004 CCH v. LSUC Supreme Court case - and simply shouldn’t be paid for.
AC obviously takes this hearing rather seriously. According to its 2005 annual report, it spent $2,964,000 in 2005 alone for "Copyright Board filings expenses" and incurred "an operating deficit ($2.2 million financed out of reserves) due to the planned expenses incurred to defend our proposed tariff in the K-12 education sector, which will be heard by the Copyright Board in early 2007."
This cost is almost 10% of its 2005 revenues. 2006 and 2007 bills are presumably still to come. That’s a lot of money - even by standards of the costs of other Copyright Board proceedings. Very interesting indeed. Well, copyright law may or may not work well as an incentive to creators - but it clearly seems to be having a positive effect on the legal profession.
Canadian educators have probably paid Access Copyright in the range of $100,000,000 to date. In the USA, educators generally deal with copyright clearance, if and when needed, on a transactional basis. The American counterpart to AC, namely the Copyright Clearance Center, has proportionally far less income than AC. There is simply no comparable mechanism in the USA to the wealth transfer scheme to which our educators have deferentially acquiesced.
And now all of this is about to get worse. The CMEC press release is the latest refrain in the litany of a strange debate that may, if not pushed aside, cause considerable distraction to the real copyright issues at hand in Canada and and much collateral damage to most Canadian internet users. On the one hand there is AC’s desire to license (i.e. get paid for the use of) free publicly available material (“PAM”) on the internet. Then there is CMEC’s regrettable response - which is to effectively legitimize the AC goal by seeking a special exception for the educational community rather than attack the AC proposal itself. Whatever CMEC’s intentions may be, its strategy will ultimately benefit AC and hurt the general public who can’t shelter under the educational exemption that they seek.
This discussion began several years ago, strangely at CMEC’s suggestion and resulted in a closed consultation effort - that in turn resulted in a lengthy report.
The discussion was continued, aided and abetted by the controversial Bulte Report in 2004, which conflated the PAM issue with that of extended collective licensing (“ECL”). The conflation - for better or worse - was no doubt due to the persistent efforts of Access Copyright and Canadian Heritage to legitimize the concept of ECL, which creates the strange and dangerous fiction that a self-proclaimed collective somehow represents every creator in its category in the world, unless the creator specifically opts out. The fiction may be acceptable in the highly socialist environment of the small Nordic countries - which are the only countries that embrace it. But it is a highly problematic, anti-competitive and even "dangerious" (according to Michael, too) conept that should not be transplanted to Canada. Canada is a large free enterprise economy that has already allowed collectives to proliferate and acquire more economic power than perhaps anywhere else in the world. The ECL push has been given some support by Prof. Daniel Gervais, who has had much experience working for and with collectives. He has written a study for Canadian Heritage that supports the notion.
Back to “PAM”, AC takes the position that:
Copyright owners argued that freely available was not synonymous with available for free. Content could be put on the Internet for limited purposes such as browsing and personal noncommercial use. They felt that “lock it or lose it” was the equivalent of a subsidy for the education sector that would be paid for by the content creators. Such a broad exception would challenge a knowledge-and-content-based economy by poorly educating students about the value of content creation.
Fordham Conference 2006. (emphasis added)
These are good sound bytes - but quite illogical. There are countless ways for making sure that content that is not meant to be “available for free” is indeed not “available for free”, i.e. the use of pay walls by many newspapers. So - who is AC to decide which amongst the more than eight billion “freely available” web pages are not “available for free”? And how could it ever distribute any money it manages to collect on this account? It can’t even figure out how to efficiently distribute the money it now gets for reprography and it already has overhead costs of over 20% - a comparatively high rate even in the inefficient world of collective administration of copyright.
CMEC’s position is even more bizarre. In essence, the educators are prepared to:
• say yes to extended collective licensing
• say yes to the principle of payment for use of publicly available material (“PAM”) on the Internet
• as long as the foregoing mess doesn’t land in their own back yard (NIMBY).
The educators basically want a special exemption for using the internet in the class room in the way that the internet is used everywhere else by everyone else. CMEC position is both unnecessary and potentially quite harmful for two main reasons:
• First - there is a well established doctrine of "implied license" (sometimes called “implied right”) that protects ALL Canadian users of PAM ("publicly available material"). If somebody posts something freely on the internet, then they should expect it to be used the way internet users use PAM - i.e., by browsing, printing, saving, cutting, pasting, etc. Very often, the invitation to “print” is explicit and incorporated in the body of the material. This is the way the internet and all browsing software works and have worked for more than a decade. And if that isn’t a sufficient legal answer, Canada now has a very broad fair dealing exception for “research”. Our Supreme Court has laid out the welcome mat for the educators in the CCH v. LSUC decision in 2004, but the educators don’t seem to understand this and want to tempt fate by getting special legislation;
• Second, the "a contrario" legal implication of the CMEC position is a very serious problem. CMEC’s position, if adopted, would strongly suggest that everyone outside the educational tent should pay to use PAM on the internet, which will please Access Copyright no end.
So, CMEC is arguing for something it doesn’t need and is putting the entire balance of the community of Canadian internet users at risk in the process. The inevitable licensing fees that would be imposed on everyone outside of the educational community would fall first upon ISPs. The Copyright Board would likely set an initial low rate that would be passed on to consumers, just as it did with the private copying levies. Then, the rate would later rise sharply. We’ve been down this road before.
The costs would inevitably be passed on to upon millions of Canadian individual and business users. Governments (i.e. taxpayers), if true to form, would pay AC without effective protest.
Of course, it is very unlikely that AC would ever litigate over this issue in the event that some responsible organization were to actually stand up and say “make my day”. AC was behind the litigation that resulted in an expensive and serious setback from its point of view in CCH v LSUC. And that case probably had more merit than one based upon ordinary use of PAM. AC may actually have learned a lesson in this instance.
It’s unsettling enough that CMEC is pushing this for K-12. However, even more strangely, CMEC - while holding its K-12 flag - also has the apparent support of the higher education community led by the Association of Universities and Colleges of Canada (“AUCC”). The Canadian Association of University Teachers (“CAUT”) has supported CMEC on this in the recent past. I’m hearing that the CAUT position may be changing, but I’m waiting to see explicit evidence of this in light of CAUT’s rather passive copyright position over the last decade on copyright reform matters. As well, other organizations that one would expect to have independently informed and forthright positions are lined up behind CMEC, such as the Canadian Library Association (“CLA”) and the Canadian Association of Research Libraries (“CARL”). These organizations are part of what is called the Copyright Forum, a group that comprises broad support in the publicly funded educational sector but which normally takes very timid positions. In this particular situation , their position is admittedly bold - but, more to the point, it is also bewildered.
There is some suggestion that educators are worried about the possibility of statutory damages. If that is so, then they could and should fight harder for cutting the Canadian statutory damages down to size, in particular by seeking an exemption for educators as is found in the American law, i.e. in 17 USC §504(c)(2). That is indeed in their Copyright Forum paper - and that is a worthy winnable fight - but that is not where their energy is being concentrated. Winning the statutory damages fight would greatly empower the educators in many respects, and would largely defang Access Copyright.
The fight against statutory damages should also extend to repeal of this draconian remedy in the case of all private non-commercial copying. As matters now stand, sharing 1,000 songs on the internet could lead to a minimum damage award of $500,000 - about twice the value of the average house in Ottawa. Countless Canadians have 1,000 songs on their hard drives and also go the record store to buy CDs. Educators, too, have teen age kids and houses. But, I digress
It is time that the educators started confronting the collectives on real issues, rather than appearing to be engaging in a strange and dangerous dance with them on non-issues. Although much more needs to change in the educational communities approach, dropping the NIMBY PAM position and focussing on eliminating statutory damages not just in the class room but in all cases of non-commercial copying would be a good new beginning.
Howard Knopf - Excess Copyright
[Knopf is an Ottawa-based copyright lawyer who’s been lead counsel on legal challenges both at the Copyright Board and in the Courts against the excesses of the music industry establishment. He’s regularly quoted in the mainstream media and acted against CRIA in the file sharing litigation, and continues to act against the CPCC, in which CRIA is still a major stakeholder, on the levy front.]
