Originally posted on Prof. Katz's blog
In a lengthy post last week, Barry Sookman responded, and attempted to refute, Michael Geist's analysis of the implications of the recent Supreme Court of Canada's decisions on Access Copyright and its business model. In a nutshell, Michael Geist argued that schools, which already have directly negotiated licenses with numerous publishers, can now "rely more heavily on fair dealing for the copying that takes place on campus and in the classroom. This includes copies made by teachers for students for instructional purposes, copies that previously formed a core part of Access Copyright's claim of the necessity of a licence." Michael Geist never argued that the Supreme Court held that all copying in schools is fair dealing and that a license is never required. Rather, Michael Geist’s essential point is that Access Copyright's very restrictive licenses offer very little beyond what is either already licensed (and often paid for) or what might very likely be regarded as fair dealing anyway.
Barry Sookman's post attempts to persuade educators that regardless of the Supreme Court's ruling, they still need a license from Access Copyright. In order to do that he tries to minimize the importance of the Court's decision and pretend that it has very narrow implications.
This is understandable. There can be no question that the Supreme Court’s rulings in Alberta (Education) v. Access Copyright and SOCAN v. Bell are a serious blow to Access Copyright, SOCAN and their supporters. Various parties and interveners representing big-content urged the Court effectively to reverse CCH. While paying lip-service to the notions of users’ rights, the public interest, and a balanced copyright law, those players encouraged the Court to roll-back its earlier decision. Some suggested that the notion of “users’ rights” is only a metaphor; others argued (incorrectly) that international treaties that Canada has ratified require a narrow interpretation of s. 29; many offered creative reinterpretations of CCH and warned about what would happen should the Court re-endorse a large and liberal meaning of fair dealing.
Those arguments failed. Not only did the Court send a clear message that it meant what it said in CCH, it said so in a louder voice by adding further clarifications that entrench fair dealing. The message from the Supreme Court to users is clear: Fair dealing is real; Fair dealing is important; Do try it at home!
As pleasant as this message should be to all Canadians, it is a dreadful one for Access Copyright. Copyright collectives are single-purpose organizations. They are not creators or producers of content, nor are they disseminators of creative works. They are driven by a single objective: to maximize that license fees that they collect, and they firmly believe that any use and any dealing should, in principle, pay paid for, and they view themselves as entitled to those payments. Copyright collectives such as Access Copyright abhor fair dealing, because fair dealing, by definition, is a use that does not require license or payment, and they resent the notion that when licenses are needed, they can often be granted on more competitive terms without their involvement. Consequently, they view any reform that would facilitate transactions in a competitive market as a lost opportunity to collectively license this activity, and perceive any meaningful application of fair dealing as an existential threat.
To their astonishment, the Supreme Court of Canada declined to subscribe to that point of view, and to the further dismay of Access Copyright, for the first time in its history educators seem to be ready to listen to the Supreme Court and seriously try fair dealing at home. So far, about half of Canadian universities and two-thirds of community colleges decided to give Access Copyright the boot. Access Copyright seems to be reacting in a mix of panic, denial, and agression. Internally, some of its members view their defeat at the Supreme Court as nothing less than the end of Canadian culture, but externally, Access Copyright decided to try convincing the public that the Supreme Court’s ruling doesn’t really mean anything. This is the essence of this announcement from Access Copyright. But apparently Access Copyright does not believe that it can persuade universities that nothing has happened, so yesterday it decided to retaliate and teach the opt-out universities a lesson.
Let me set the aggression part aside and return to the denial which is also the gist of Barry Sookman's post.
Access Copyright tries to deny the effect of the Supreme Court's ruling by attacking a straw man. It says: “Several groups have wasted no time to embrace a "copy-free" interpretation of the ruling by incorrectly asserting that educational institutions no longer need licences to copy.” I don’t know who are those several groups, but I haven’t seen any such “copy-free” interpretation. The interpretations that I have read only suggest that the licenses that Access Copyright offers are likely unnecessary. The two propositions, are, of course, quite different. Saying that a license from AC is not necessary is not the same thing as saying that no license is ever necessary.
Barry Sookman, who was counsel for Canadian publishers organizations who intervened before the Supreme Court (many of which are members of Access Copyright), adopts a similar strategy, but instead of overplaying what others have said he underplays what the Supreme Court had said.
Barry Sookman is a well experienced lawyer, and in his post he does what lawyers do when they face a Supreme Court case--a binding authority--that seems unfavourable to their clients: he tries to distinguish the case and to argue that the holding of the binding precedent is limited to its specific facts but inapplicable to others. In his recent post, he would like his readers to believe that the Supreme Court’s ruling is limited to an extremely narrow set of facts and has no real implications beyond those narrow facts.
For this purpose he describes the facts as "the copying of an occasional page from a book, amounting to no more than 4.5 pages per student per school year." Note, however, this restatement of the facts does not come from the Court's judgment, but is extrapolated from the Appellants' factum: the "occasional one page" was mentioned only as an example.
The Court itself, however, described the facts in a much broader and general manner, and, of course, laid down general principles that are supposed to apply in other factual settings. This is what the Supreme Court does, and this is why in addition to the parties themselves, several organizations sought and were granted leaves to intervene. The Supreme Court does not hear appeals from every decision of lower courts. Ordinarily, the Court select a small number of cases and only hear appeals that raise questions of “public importance". And when it decides these cases, it tends to decide them in a manner that can be applied in other settings because “much of the Court’s work … require[s] the development of a general analytical framework which necessarily [goes] beyond what was essential for the disposition of the particular case.”[1]
In his current post, however, Mr. Sookman would like his readers to believe that the Supreme Court's ruling in Alberta v. Access Copyright is relevant only to the extremely specific facts that he describes. He further claims that Michael Geist "fails to recognize that the Access Copyright decision did not address any other forms of copying including for example only:
- Copying in post-secondary institutions
- Copying of primary textbooks to facilitate book sharing
- Copying of other types of works e.g. workbooks, short stories, articles, newspapers
- Reprographic copying for course packs, digital copying of course collections, copying of primary textbooks for students for other purposes
- Multiple copying of short excerpts from the same textbook
- Digital storage and storage and distribution through learning management systems
- Electronic reserve systems
- Other digital copying, scanning, downloading, emailing
- Copying by other staff members"
Technically, Barry Sookman is right. The Supreme Court didn't address any of these other forms of copying. But Barry Sookman should know quite well that the implications of the rulings are wider, and that the principles laid down by the Court will have to apply beyond the specific facts of this particular case. He should know that not only because he is a smart and well-trained lawyer. Barry Sookman the blogger should know that because Barry Sookman the lawyer recognized this very point a year ago in his submission to the Supreme Court. Back in September 2011, when his clients sought to intervene in the case, he wrote to the Supreme Court that
This is a critically important case to the long-term health of Canadian publishing in the educational sector. The Proposed Interveners believe that the precedent established in this case will extend to activities well beyond the K-12 educational setting.
He further added that "The decision in this appeal would likely be applied to many other activities where fair dealing could be claimed”. He did not stop with this general statement but also added examples that look remarkably similar to the list of issues that he now claims to be unaffected by the Supreme Court’s ruling. Sookman’s 2011 list includes the following:
- The licensing of the right to make reprographic copies of works by colleges and universities.
- The licensing of the right to make digital copies of works by primary and secondary educational institutions.
- The licensing of the right to make digital copies of works by colleges and universities.
- The licensing of the right to communicate works to the public by telecommunication. This right is potentially implicated in numerous activities throughout all levels of education including making works available or distributing works to students over educational networks, e-reserves and websites including websites hosted by educational institutions on behalf of teachers and professors, and distance education.
- The sale of traditional books, journals, magazines and other works to all sectors of the market, including the educational market, which could materially decline if the fair dealing exceptions are broadened in the manner proposed by the Appellants.
- Copying of works by third parties, such as copy shops.
- Copying of works made available over the Internet that could be used for educational, training or other purposes.
- Copying of works in corporate and governmental environments for educational or training purposes.
- Copying and distribution of works including educational and instructional works by news clipping and content aggregator services.
Barry Sookman made these submissions to the Supreme Court on the basis of the very same factual record that he describes in his blog. The factual record of the case did not change between September 2011 and September 2012, and Barry Sookman was entirely correct when he identified a wide range of issues to which the decision in the appeal would be relevant. He was correct then just as he is wrong now when he argues the opposite.
Even though the potnetially wide implications of the decisions were clear to all participants, Access Copyright and its supporting interveners could have in fact pursued several strategies if they wanted to guarantee narrower implications. For example, they could have urged the Court explicitly to limit its holding to a very specific set of facts and avoid pronouncements with potentially wider implications (courts sometimes do that when they are concerned that their holdings might be misapplied in future cases). They could have hedged their bets by conceding that under the very specific circumstances (as Sookman describes them) copying by a teacher could be fair dealing. They could have even offered to settle the case (and avoid a binding Supreme Court ruling) by agreeing to lower the tariff and treat the disputed Category 4 copies as if they were fair dealing. And more generally, they could have simply expressed some humility by recognizing that not every use of a copyrighted work requires permission, and not every copying by (or at the initiative of) a teacher requires compensation.
They didn’t do any of that. Instead, and having already lost in CCH, Access Copyright and its supporters doubled up their bet and took the most extreme and arrogant position that copying by an educational institution for the purpose of education or training is categorically excluded from the purview of fair dealing. In doing so, they misstated Canadian law, English law, American law, and international law, and made unsupported claims about the devastating harms of unauthorized copying by teachers.
Fortunately, the Supreme Court of Canada saw through that. Access Copyright and its members doubled up on copyrights; the Court doubled down on users' rights.
Of course, the Court offered guidelines that will have to be applied in different factual settings, and there's no question that what may be fair dealing in one situation may not be in another, and that how exactly they apply in each and every instance may not always be certain. But the message from the Court is clear: it is not an infringement of copyright to reproduce work for educational and other legitimate purposes as long as what is being copied is reasonably necessary to achieve those purposes, when there is no realistic alternative to the copying, and the copying does not adversely affect or competes with the original work. As the Court made clear in CCH, the loss of licensing revenue to Access Copyright, is not part of this consideration. This message does not turn on the fact that some of the copies were no more than one-page long or on the fact that on average only 4.5 pages per student were made. It may not be a message that Access Copyright wants to hear, but this is the Court's message, and it is clear and lucid, it is sound and sweet.
Is this the end of Access Copyright? Not necessarily. I agree with Barry Sookman that writing Access Copyright's obituary might be premature, but my reasons are different. One can only hope that Access Copyright will understand the need to adopt and transform itself from an oppressive cartel into a useful service provider. Instead of insisting on seeking the help of the Copyright Board to impose itself on educational institutions, and instead of bullying them into buying an over-priced product that they don’t really need, it can assist them in securing transactional licenses in those cases when those are needed but not easily available. Instead of cartelizing the market and purport to be the sine-qua-non intermediary, it should reposition itself as one among many intermediaries, operating in the exciting new realities of digital and traditional publishing.
So far, there are no signs that Access Copyright is heading in this direction. Instead, it is trying to do what it has always done:
- To promote the false notion that fair dealing has very limited application for the activities of educational institutions;
- To make empirically unfound and theoretically hollow arguments about how publishing would come to a halt should copyright owners not be allowed to control and charge a fee for every use of their works;
- To threaten extremely risk-averse educators, librarians, and administrators in publicly-funded institutions that they and their institutions would face serious consequences should they refuse to get a license (or the latest version of this tactic, to terrorize universities who refuse to capitulate with scandalous requests to answer ridiculous interrogatories (aka in-terroremogatories);
- To rely on a Copyright Board that shows worrying signs of regulatory capture (and a Competition Bureau that so far has been too sleepy);
- To authorize the reproduction of works whose owners' never appointed Access Copyright to act on their behalf, and offer an extremely expensive and likely invalid indemnity scheme; and
- To dismiss contrary arguments, or, when dismissing stops working, discred those who make them as "radical extremists", "anti-copyright ideologues", "ivory-tower-out-of-touch-non-pragmatic-wishful-thinking-academics", etc.
This model has worked in the past, and it may still work for a while. But it has become more difficult to sustain. Educational institutions, teachers, and students spend millions of dollars annually on books, journals, and other copyright materials. When those works give them value they pay for them happily and when they need licenses they do that as well. If Access Copyright wants to remain relevant it should reinvent itself and provide this value. If not, it will be gone.
The demise of Access Copyright will not be the first time that cartels break up and organizations that cannot embrace change disappear. Whether this happens sooner or later one thing is sure: the rumours about the death of Canadian culture are clearly premature.
Image: Self Portrait by marie-II, from http://www.flickr.com/photos/grrrl/5699712251/ licensed under CC license.
