In a recent instalment in this Policy Options series, John Degen (poet, novelist and executive director of the Writers’ Union of Canada) makes a passionate plea: that Canadians respect copyright and be mindful of the precarious existence of many Canadian writers. His remarks are targeted at what he refers to as “educational fair dealing.” Fair dealing is a set of exceptions within the Copyright Act that permits unauthorized use of copyrighted material, under certain conditions, for a number of purposes including, as of 2012, education. Fair dealing must be carefully handled; as Rosanne Waters of the Canadian Alliance of Student Associations writes, “It is not ‘free’ dealing.”

As the federal government prepares to review the Copyright Act, we need to be wary of enacting changes driven by emotion. History and contemporary facts merit consideration; good politics should not be mistaken for good policy. Unfortunately, this debate has been primarily one of politics; the goal of many representatives of Canadian writers is to bring Members of Parliament over to their cause. Hardly a daunting task, as for decades politicians have been only too happy to be seen as supportive of creators. Michael Rushton has described copyright amendments of the late 20th century; economic analyses that took note of public interest received lesser attention, and “[exceptions] were heavily amended at committee stage, generally in favour of creators’ groups.” In 2004, a Member of Parliament used a committee meeting to ensure his position was memorialized as a matter of public record: “I want to declare up front a bias: I’m on the side of the creators.” Today, it is important to be seen as supportive of creators on social media.

For a few years now, the story of an ongoing disaster for writers and publishers — supposedly due to errant Supreme Court justices and negligent government — has played out in the press, at international gatherings and in literary journals. Degen points to an article by Patrick Warner, published in the Walrus: “How Universities Manage to Avoid Paying Writers for Their Work.” Warner’s displeasure is clear, even if his sources are not. The language, tone and title employed would have readers believe that no payment is provided for any use of copyrighted works in academic institutions. Such misrepresentation could prove persuasive to Members of Parliament. But if those MPs are truly interested in being on the side of creators, they need to set aside accounts that attempt to rewrite history and look objectively at what has transpired over the last few years. Copyright is a simple enough word — meaning “the right to copy” — but it represents a complex matrix of activity concerning writers, readers, publishers, markets and competition.

Lobbying by publishers was carried out in the name of the starving writer, a political tactic that continued through every subsequent expansion of the scope of protection afforded via copyright.

Degen describes copyright, with a nod to the French civil law tradition of droit d’auteur, as an author’s right. Left unarticulated is more than 300 years of history that begins with copyright’s entry into statutory law as a trade regulation. The development of copyright, in both Anglo-American common law and French civil law, tended to follow the same pattern: initially the emphasis lay on public interest but later it shifted to a more author-centred focus. But throughout, lobbying by publishers was carried out in the name of the starving writer, a political tactic that continued through every subsequent expansion of the scope of protection afforded via copyright. Which invites a thought: after three centuries of expanding the depth and breadth of copyright, if writers are still starving, then perhaps copyright is neither the problem nor the solution.

Copyright protects the rights of copyright holders. That holder may be a writer but is often a publisher. The right itself is meaningless without a marketplace. Yet markets are not allocated equally; the struggling writer must compete with the titans of the day. The fledgling 19th-century English Canadian writer had to contend with readers who wanted Browning (husband or wife), Charles Dickens, Sir Walter Scott and Mark Twain. Today, a young writer begins in the shadow of Margaret Atwood, Thomas King, J.K. Rowling and Madeleine Thien. Even Atwood did not have it easy; in mid-20th-century Canada, she and her peers faced an uphill battle to have their work published; the roots of that problem go back a century to an imperial resolve that the Dominion would not develop a competitive publishing sector.

Without publishing, writers cannot find their market, and without the expectation of a market, a publisher is not likely to be interested in a writer. Breaking this impasse in Canada took some government intervention; direct financial support for the arts and letters in the later 20th century eventually bore fruit. Canada now proudly lays claim to a glittering pantheon of world-renowned and sought-after authors. Despite such progress, it is the view of many that Canada’s writers are under assault, they are being denied a market, and ultimately Canadian culture will suffer.

The market in question is the one for copies of portions of copyrighted work, when used in educational institutions. Previously, institutions paid a blanket per-student licence fee to a collective society, Access Copyright, for permission to make those copies. That many institutions dropped these arrangements with Access Copyright is true. But the reason often cited — the inclusion of “education” in fair dealing, in the 2012 Copyright Act amendments— does not tell the whole story.

The exodus was set in motion in 2010 by Access Copyright when it sought a sizable increase in licensing fees, intrusive levels of monitoring and a rewrite of the very definition of copyright (an action that only Parliament may take). Access Copyright’s wish list prompted much deliberation in post-secondary administrative offices across Canada. The question was: What value does collective licensing bring? Given repeated guidance by the Supreme Court (in 2004 and 2012) on how to apply fair dealing, the option of dealing directly with publishers and the extensive content that institutional libraries purchase and subscribe to, educational institutions opted to manage their copyright affairs themselves. Money still changes hands, but not through Access Copyright. According to Degen, however, this shift has resulted in disaster. As evidence, he points to a financial report issued by PricewaterhouseCoopers, commissioned by Access Copyright. But the findings of the PwC report are selective, and they do not set their analysis within the context of larger macroeconomic conditions.

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Degen writes: “The mixed message from the education sector is that it is spending as much on content now as it was before claiming a broad exception, if not more, and that schools are somehow saving students money. How can both claims be accurate?” The claims are both accurate because institutions increasingly rely on licensed content, whether it is proprietary and purchased from publishers or open and obtained from an  open educational resource collection. In this new context, the volume of copying that would still require purchasing an overly broad blanket licence is steadily decreasing. And, along with these newer means of content production and distribution, institutions may rely on fair dealing from time to time.

A Canadian publishing sector that will nurture and sustain Canadian writers has been, and continues to be, a worthy goal. But a distinction must be drawn between international publishing giants and small, independent Canadian publishers. Blindly demanding more control via copyright will not bring about a meaningful increase in revenue to Canadian presses, unless such presses dominate the marketplace of educational content. This does not appear to be the case; according to Publishers Weekly, in the 2016 ranking of the top 50 publishing houses worldwide, Canada makes only two appearances. And among the top 15, the firms most prominent in educational publishing — Pearson, Elsevier, Wolters Kluwer, McGraw-Hill, Wiley, Scholastic and Springer — are all foreign owned.

Canadian presses do have a significant presence in education in the humanities. Yet according to Statistics Canada, from 2013-14 to 2014-15 enrolment in the humanities dropped by 4.5 percent, a greater decline than for any other discipline. From 2010 to 2015, data show a decline of nearly 8 percent. That Canadians are losing interest in the humanities is disturbing on many levels, but expanding the sphere of copyright will not revive this diminishing market.

We can only hope that Members of Parliament will remember that copyright cannot be targeted purely to benefit Canadian concerns. Copyright represents an obligation to all copyright owners, domestic and foreign, whose works are used in Canada. If the federal government chooses to give in to an emotional campaign discrediting fair dealing, and removes fair dealing from application within educational institutions, more Canadian dollars will exit the country to foreign publishers. Making such a move in the name of protecting Canadian culture would be self-defeating, to say the least.

This article is part of the Reviewing Canadian Copyright Policy special feature.

Photo: Shutterstock/Maxx-Studio

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