Letter to Universities from Don LePan (Broadview Press)

The following letter was sent to presidents of Canadian universities by Don LePan, publisher, Broadview Press. It is reproduced here with Mr. LePan's permission.

February 21, 2013

I’m writing about what seem to us at Broadview Press to be deeply disturbing interpretations by a number of Canadian universities of the new Copyright Act and of a 2012 Supreme Court decision. In response, we at Broadview are now contemplating legal action.  

To begin with, it should be said that the new Act and that particular Court decision (Alberta [Education] v. Canadian Copyright Licensing Agency [Access Copyright], July 12, 2012) helped to resolve some longstanding uncertainties. The previous “fair dealing” exemption in the Canadian Copyright Act mentioned only “research and private study”: “Fair dealing for the purpose of research or private study does not infringe copyright.” What if, for example, one were home schooling one’s children? What if one wanted to make a handful of copies for the members of a local book club or philosopher’s café? What if one were satirizing a public figure? Would one have to request and pay for permission to offer a satire in the form of an extended quotation? What if a schoolteacher or a university instructor saw some short piece in a newspaper or a book that wasn’t part of the pre-arranged course reading but that she thought might be interesting and relevant for the next day’s class? Would it be illegal to photocopy the relevant paragraph or page for her students (or make it available for them electronically)?

We now know the answers. In its 2012 decision the Supreme Court ruled that instructors may use “short excerpts” of copyright-protected material in the classroom without securing permission or paying royalties. And when the 2012 Copyright Act was revised in 2012, the words “education, parody or satire” were added to accompany “research” and “private study” in the “fair dealing” provisions: “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.”

Was this broadening intended either by Parliament or by the Ministries of Education who recommended the change to provide a blanket license to photocopy material (or to electronically reproduce material) for educational purposes in schools or institution of higher learning? Was it meant to give instructors free rein to create course packs of copyrighted material without clearing any permissions, obtaining any license, or paying any fees to the authors or publishers of the material? No; very clearly it was not. Ramona Jennex, Chair of the Council of Ministers of Education, was asked by the relevant Parliamentary Committee if the addition of the word “education” to this section of the Act could conceivably have a negative effect on Canadian writers and publishers. She responded unequivocally: “these provisions … will not impact any of the creators or any businesses at all.” (http://openparliament.ca/committees/bill-c-32-40-3/40-3/20/?page=2)

Previously there had been a separate section of the Act covering “Reproduction for Instruction.” That section is retained in a revised form in the new Act, now with the additional heading “Educational Institutions,” to distinguish it from those parts of the law mentioned above. Section 29(4), Reproduction for Instruction, is specifically concerned with exemptions to copyright restrictions for “purposes of education or training on the premises of an educational institution.” In the previous law, exemptions under this part of the law had essentially been restricted to devices such as overhead projectors. They now, with important provisos, include reproduction in general of copyrighted material; the provision now specifies that, with certain exceptions, “it is not an infringement of copyright for an educational institution or a person acting under its authority for the purposes of education or training on its premises to reproduce a work.”

That might sound like a blanket exemption for anything to do with education, but when one reads a bit further it becomes abundantly clear that the Act does not provide any such blanket exemption. This exemption is very significantly qualified by the final paragraph in the Reproduction for Instruction section— 29.4 (3) —which specifies that “the exemption from copyright infringement provided by subsections (1) and (2) does not apply if the work or other subject-matter is commercially available, within the meaning of paragraph (a) of the definition “commercially available” in section 2, in a medium that is appropriate for the purposes referred to in those subsections.

What does “commercially available” mean? In Section 2 of the Act, “commercially available” is defined quite clearly as:

•             (a) available on the Canadian market within a reasonable time and for a reasonable price and may be located with reasonable effort, or

•             (b) for which a license to reproduce, perform in public or communicate to the public by telecommunication is available from a collective society within a reasonable time and for a reasonable price and may be located with reasonable effort

That gives a much clearer sense of what it means for the exemption to apply to any work that is under copyright but not commercially available in Canada. If an instructor wished to include in a photocopied (or a digital) course pack for her students, for example, a 1980 short story by a Zimbabwean writer whose work is out of print and whose whereabouts are unknown (but a story nevertheless still in copyright), and the Zimbabwean publisher had no agreement with a Canadian licensing agency such as Access Copyright, it would have been illegal under the previous act for the instructor to do that; now it is permissible. But these provisions of the Act very clearly do not authorize copying of material that is readily available in Canada or for which a license to reproduce (such as institutions may obtain through Access Copyright) is readily available.

There are two issues that complicate things. One is the finding by the Supreme Court in the Access Copyright case that there is not always a hard-and-fast distinction between “instruction” and “private study,” particularly where the provision of a wide range of brief supplementary materials to school children is concerned. There was nothing in that case to suggest, however, that the Court intended its ruling to overturn established law on the provision of more extended and/or substantial amounts of material, or that it was intended to apply to reproduction for students in photocopied course packs or digital learning management systems.

In their ruling in Alberta Education v. Access Copyright, again, the Supreme Court ruled that it is permissible for teachers to photocopy “short excerpts” of copyrighted material for their students even if no license applies. It is on the basis of that ruling concerning “short excepts” photocopied for schoolchildren that several Canadian universities that have not entered into any agreement with Access Copyright or another licensing agency are now advising their faculty that it is permissible, even without any license from Access Copyright, for instructors to photocopy for their university students “up to 10% of a copyright-protected work,” “a complete “chapter from a book,” a complete “article from a periodical publication,” “an entire single poem” from a publication containing other poems, or “an entire artistic work … from a Work containing other artistic works.”  According to these guidelines it is acceptable to copy for all one’s students 50 pages of a 500 page book, or 60 pages of a 600 page book, or 90 pages of a 900 page book; anything up to 10% qualifies as a “short excerpt.”[1]

For the moment at least, that is how these universities (encouraged by their association, the AUCC) have decided to define “short excerpts.” It is an interpretation that would seem to defy common sense; could this really be what the Supreme Court meant by “short excerpts”? The Supreme Court has not defined precisely what they understand the phrase to mean, and the Alberta Education v. Access Copyright case turned on copies made over the course of a full year, not on how short meant “short” in the term “short excerpt.” But the examples given were such things as a single page from a supplementary math book. It seems impossible to imagine how twenty or thirty or fifty or ninety pages of text could be characterized as “short excerpts”—except by twisting the English language out of all recognition. Michael Geist claims that “a consensus on the scope of fair dealing has begun to emerge within the education community”—but on what is that supposed consensus based? Certainly no such consensus exits in the legal community. As Barry Sookman of the highly respected legal firm McCarthy Tétrault has commented, that Supreme Court decision “is no precedent that all copying in K12 and post-secondary institutions that would be covered by an Access Copyright tariff or license is covered by fair dealing.” (http://www.barrysookman.com/2012/09/12/did-the-supreme-court-eviscerate-access-copyrights-business-model-a-reply-to-michael-geist/).

A central aspect of discussions of “fair dealing” in the legal proceedings has been the issue of the “effect of the dealing on the work”, which (in the words of Justice Rosalie Abella, “assesses whether the dealing adversely affects or competes with the original work.” In speaking for the majority, Justice Abella found that the plaintiffs in the Alberta Education v. Access Copyright case had not provided persuasive evidence to show that the copying of these short excerpts had led to any reduction in book sales. But, as Sookman also notes, the Court, in ruling on these short excerpts used in schools, did not make any general ruling regarding all copying in educational institutions; “the decision, therefore, is no precedent for uses where the copying would be a substitute for or reduce book sales.” Yet the AUCC has presumed there somehow to be just such a precedent in its new interpretation of “fair dealing.”

When a leading association codifies a “fair dealing” policy, one might expect the policy to be recommending actions that are indeed fair—as well as being clearly legal. Neither is the case in this instance. The AUCC “fair dealing” policy recommends that university instructors presume there to be a much, much broader exemption than either the Act itself or the extant Supreme Court rulings can justify. And universities, in following the AUCC’s guidelines in what they recommend to their instructors, may very well be counseling their faculty to break the law.

If a university encourages its instructors to reproduce copyrighted work in the way that the AUCC recommends, who is being harmed? If a university instructor puts together a course pack with twenty copyrighted short stories, or twenty chapters from different copyrighted philosophy books, paying nothing whatsoever to authors or publisher, is harm being caused? Michael Geist of the University of Ottawa has been the leading figure pushing the case against copyright protection for authors and publishers, has suggested that no one is being harmed. But, as Barry Sookman correctly observes, Geist’s assertion “that copying 10% of a book for any and all uses in educational institutions would not harm market for works is not supported by … any analysis or evidence.” If a substantial amount of authors’ work is included in a course pack (whether photocopied or electronic) and authors receive nothing in return, how is this not harm?

Let us look at some cases in point. The complex story “Break-in” by the young Canadian writer Ian Williams takes up 20 pages of his 220 page 2011 collection, Not Anyone’s Anything. The book itself has sold only a very few hundred copies, though it has been widely praised by reviewers and academics. That particular story, “Break-in,” has been described as an excellent one for teaching to undergraduates. In the past, that could readily and fairly be done in any one of three ways: the instructor could assign the entire collection; she could assign an anthology (such as The Broadview Anthology of Short Fiction) that included the story; or she could include the story in a course pack, for which permissions would be cleared through Access Copyright, and payment made to the author. For many authors in many years, the payments to the author for uses of this sort have actually been larger than have been those author’s book royalties. The totals are not huge; very few authors receive more than a few hundred dollars in any year for the photocopying from any book they have written. But are a significant help to authors—and they are fair, in that they provide at least modest compensation for the use of copyrighted work. Under the interpretation the AUCC now claims applies to “fair dealing,”  however, any instructor wishing to teach that story to her class of first-year students can just go ahead and do so, no questions asked, no permissions cleared, no payments made. The class could be 8 students, or 80, or 800; it doesn’t matter—no need for the author to receive anything.

Let’s take some other examples. Under the Canadian universities’ new interpretation of what constitutes “fair dealing,” it would be acceptable to copy the core argument from the late Bernard Suits’s acclaimed philosophical study, The Grasshopper: Games, Life, and Utopia (widely used for Philosophy of Sport classes) without any compensation being paid to his widow. It would be acceptable to do the same with the entirety of JoAnn Wallace’s superb 26 page introduction to the new Broadview edition of Mrs. Dalloway (comprising just under 10% of the full book), with nothing whatsoever going to the Professor Wallace for her efforts. It would be acceptable to do the same with Tomson Highway’s entire play, The Rez Sisters; if you photocopy or scan it not from the stand-alone edition of the play but rather from The Broadview Anthology of Drama, volume 2, then it is “an entire artistic work … from a Work containing other artistic works” and it takes up less than 10% of the 674 pages of the anthology volume. The complete Tomson Highway play is in this instance just another “short excerpt.” Just go ahead—again, no need for the author to receive anything.

And what of the publisher? In the past, it has been large foreign-owned publishers that have been in the foreground in most Canadian copyright cases; no doubt that’s unsurprising, since they are the ones with deep pockets. That fact may have encouraged the perception that the publishers who are affected by copyright issues are all fat cats and rich multinationals. In fact, the publishers most severely affected are smaller publishers—many of them Canadian—with limited budgets, living these days very close to the line. Let me speak specifically of Broadview. We are not a tiny publisher, but nor are we a rich multinational. We have 25 employees (from Wolfville to Nanaimo), and our sales are just over $3 million a year. We are a “for-profit” corporation, but I’m sure none of us thinks of making a profit as our only reason for existence; our goal is for our books to make a genuine contribution, intellectually as well as pedagogically. Clearly none of us is in it for the money; Broadview salaries range from the $30s to (in my own case) $79,000 as President and CEO—this at age 59, after 35 years working in the industry. I’m not complaining; I know that many heading up smaller Canadian publishing concerns do it for far, far less pay than that—in many cases not even taking a proper wage. Canadian publishers are, in my experience, the absolute antithesis of fat cats. And the profits we make? Since 2008 Broadview has shown a profit for four of those five years; the bottom line for our company has ranged from a loss of $66,888 in 2008 to an income of $99,682 in 2011. For most of those years we have received Access Copyright payments of just over $50,000 per year. In most years, in other words, it’s reasonable to see the Access Copyright payments as having been the difference between scraping by with a tiny profit and either breaking even or losing money.

If this new approach to copyright takes hold, it won’t just mean losing that $50,000 or so every year for a publisher such as Broadview; it will have a much broader negative impact right across the board, as instructors are encouraged by their institutions to copy anything and everything up to 10% of any book, without having to pay anything.

One effect on publishers of losing the stream of revenue from copyright payments would be direct and financial. The other would be indirect—but also far more damaging, to students and academics at least as much as to publishers. Let me put it bluntly; if neither we nor our authors are to be remunerated for the work we do, we cannot continue to do it. What would happen to the hundreds of titles in the Broadview Editions series (a series that is “not just great for teaching—it has also changed the way we do scholarship,” in the words of Professor Suzanne Daly)?  If this approach to copyright becomes the norm, I cannot imagine we will still be publishing such a series a few years from now. What of our Freehand Books literary wing (which has published Ian Williams, Kristen den Hartog, Sara Leavitt, Marina Endicott, among many others, since its inception five years ago)? Already we are losing significant amounts of money every year in that area; this new approach to copyright would surely be a fatal blow to our existence as a publisher of new fiction and poetry. If universities want to help kill the Canadian publishing industry, this new approach to copyright is the perfect way to do so.

The argument I am making here, then, is not purely a legal one. Canadian universities have on the whole a proud record of seeing the larger picture—of taking into account not only narrow or short-term legalistic concerns but also the interests of the broader intellectual community and of society as a whole. I appeal now to those better angels.

But this is also very much a legal matter, and I can say unequivocally that if legal action becomes necessary, we will not hesitate to take legal action. I am copying our corporate counsel, Mark Merner of McLeod Law LLP, in on this letter.

I am also copying in the Chairs of departments at your university that we have dealt with very frequently over the years—English, History, Philosophy, and Political Science. I hope that, in turn, you and they will copy it to anyone else at your institution who may have a particular interest in this matter—whether it be members of faculty, the Faculty Association, the Student Association, various administrators, or whoever. I look forward to hearing your response.  

 

Yours sincerely

 

Don LePan

President, Broadview Press




[1] Where did these guidelines originate? As a graduate student commenting on Michael Geist’s blog has astutely pointed out, they did not come out of thin air:

[F]rom what I can tell, the fair dealing policy being touted by these institutions appears to derive almost verbatim from the model licence that AUCC & Access Copyright agreed to in the spring of 2012. Correct me if I'm wrong here, but weren't those uses of copyrighted material (over which AC claimed jurisdiction) described and licensed in the context of the institutions paying AC $26 per FTE student? That is, the conditions that are part of the fair dealing policy were derived from similar terms that were drawn up in the context of a paid license to AC. They are not fair dealing terms that were independently prescribed by a court, statute or other legally binding body. Now that Access Copyright isn't getting paid anything, there is nothing to stop them from litigating against an institution for those uses as not being fair use. (Posted Jan 13, 2013 by “gradstudent” to Michael Geist’s blog.)

Nothing to stop authors or publishers or anyone else from litigating either, he might have added.