Canada Has Obligations

From Publishing Perspectives:

The International Publishers Association (IPA) has been compelled “to argue that Canada is a bad-case example of governments interfering with copyright and undermining the local market.”

That’s the message that the IPA’s vice president, Hugo Setzer, delivered on Wednesday (May 9) to a hearing of Canada’s Standing Committee on Industry, Science, and Technology.

The hearing, set in Toronto, was one of a series of such public feedback sessions being held through Friday (May 11) in various cities in Canada as part of a five-year review of the country’s 2012 Copyright Modernization Act.

“Our concern,” Setzer told the legislative hearing in Toronto, “is that Canada is now considered internationally an outlier, not only with its ‘fair dealing’ exception for education, but with its court-made law that equates fair dealing exceptions with so-called ‘user rights,’ all of which has resulted in loss of income for Canadian publishers and authors.”

. . . .

While we expect to report on some of the testimony offered by Prieur, Edwards, and Rollan, we want to focus today on the Setzer commentary to the hearing because until now, we have heard of no outside agency such as the International Publishers Association–which represents more than 76 member organizations from 65 nations’ publishing industries–having a chance to speak directly to Canadian legislators, who need to understand the damage that a loosely interpreted copyright exception is causing to their nation’s creative culture and character.

. . . .

And as readers will remember, the problems with the Copyright Modernization Act—as examined in a Toronto conference in November—have to do with the scope of a “fair dealing” exception (called “fair use” in some cultures) in education. Canadian universities have worked along the lines of a “10 percent” approach, which other educational institutions, including K-12 schools, have then adopted. In some settings, instructors have allowed themselves to copy up to 10 percent of a book, or a full chapter, and to then distribute this copied material to students without a publisher’s permission and without paying a licensing fee, sometimes called a tariff.

Link to the rest at Publishing Perspectives

7 thoughts on “Canada Has Obligations”

  1. Gee, is this that same Canada that charges extra for hard drives, tapes and memory sticks because they ‘might’ be used to store copyrighted data files? And that extra is given to the music/movie conglomerate to pay the creators for lost revenue from ‘copying’? Maybe they should abolish that if they’re going to try to collect money for ‘fair use’.

    Speaking of fair use, doesn’t that country just south of them also allow ‘fair use’? So how do they see Canada as being an outlier?

    Any bets the IPA wants these new fees going to them to pass out as they see fit and not to the actual owner of the copyright?

  2. A simple number – 10% – can’t be used for everything as a ‘fair use’ free get-out-of-jail card. (educated layperson, not lawyer here)

    Too many things (including most business books) have a tiny idea at the center of much anecdoting. I think I reduced Raving Fans to a couple of paragraphs. There was even some service I used through a few book summaries which did that for you, reducing popular books like The Tipping Point into something you could read in ten minutes.

    But I believe courts in the States have ruled that if you use the core of the book in your 10% you have interfered with the author’s ability to make money from their intellectual property (methinks some post on TPV went into that recently), and it isn’t fair use.

    I would think copying a whole chapter out of a book, even if it met the 10% number, would not be fair use if done by a professor to hand out to a class. The professor could assign the reading – standard procedure – but not actually hand out the copies.

    • Alicia, In US law, teachers are specifically given license to copy works for educational purposes. As I understand the law, the professor may hand out copies.

      • Whole chapters? Seems beyond a ‘fair use’ doctrine if it is to keep the students from buying the original book. A teacher could just copy a section out of a different book for each section of, say, a physics course – and produce a whole textbook. From copyrighted proprietary information.

        There are companies that do this online for basic courses, but they use material which isn’t copyrighted as their source.

        But you probably know. I’d just be quite unhappy if I had gone to the trouble to write the textbook.

        • “But you probably know. I’d just be quite unhappy if I had gone to the trouble to write the textbook.”

          Part of this is blowback from all those overpriced textbooks that get changed/reworded just enough that they can’t be used again next year.

          Like ebooks, it’s one thing to offer them for a reasonable price, and quite another to expect people to pay for overpriced ones. Another issue with classroom textbooks is they’re not ‘optional’ you ‘have’ to buy them.

          While they have a legal loophole, those teachers are demonstrating the same cause/effect that is causing all the intellectual property sharing we hear about. Someone got greedy and tried to see how much money they could make – doubling damning because in this case it was something the students ‘had’ to have for class. What happened instead was people shared it.

          That’s one of the main reasons I set my own ebook prices low, it’s not worth it for someone to steal/share it. (And if a teacher asked if they could use it in a class I would happily give them my permission – not that I expect that to actually happen … 😉 )

      • That is a somewhat extreme interpretation of Fair Use which is merely a (case by case) defense against infringement claims, not a blank check. It’s not even an actual law but rather a judicial doctrine. It comes from the judicial system, not the Congress.

        https://copyright.uslegal.com/copyright-infringement/defense-to-infringement-fair-use/

        Regardless, professors just do not do that because textbooks are typically their own or a colleague’s. Self-interest and professional courtesy limit that kind of behavior. To say nothing of curriculum restraints, which are particularly strong at the k-12 levels. It’s a firing offense.

  3. This has been an on-going issue concerning fair use. Micheal Geist, a Canadian copyright expert, has written extensively on the subject on his blog:

    In his article Fairness Confirmed: Copyright Board Deals Another Blow to Access Copyright
    http://www.michaelgeist.ca/2016/02/fairness-confirmed-copyright-board-deals-another-blow-to-access-copyright/ he states:

    3. Fair Dealing – Percentages

    At the heart of the universities case is the validity of the widely used education fair dealing guidelines which treat up to 10% of a work as fair. This decision provides the first glimpse into the Board’s view of the guidelines. It concludes:

    For longer works, such as books, guided by the Supreme Court’s decisions in CCH, Alberta, and Bell, we use the following approximation: where the amount of a work copied was less than or equal to 5 per cent of the work, we conclude that the amount copied tends to make the dealing fair; where the amount copied was more than 5 per cent but no more than 10 per cent of the work, we conclude that the amount copied did not affect the fairness of the dealing; where the amount copied was greater than 10 per cent of the work, we conclude that the amount copied tends to make the dealing unfair.

    Taken together:

    1 – 2 pages is insubstantial with no fair dealing analysis required
    Up to 5% of a work is likely to be fair
    5 – 10% of a work is neutral and the fairness will depend on other factors
    More than 10% tends to unfairness

    This approach is largely consistent with the education fair dealing guidelines. The Board has concluded there is nothing unfair about copying 10% of a work. Indeed, given that many of the other fair dealing factors tend toward fairness for education, this decision represents a solid affirmation of the current Canadian education approach.

    Also, his article Fictional Claims: Why Kids Are Not Suffering With Canada’s Copyright Fair Dealing Rules http://www.michaelgeist.ca/2016/06/fictional-claims-why-kids-are-not-suffering-with-canadas-copyright-fair-dealing-rules/ he discusses the various reasons for the decline in the educational market.

    If you are interested, this link explains the role of the Copyright Board of Canada
    http://www.cb-cda.gc.ca/about-apropos/role-role/raisons-etre-e.html .

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