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Important copyright and open access news has come out of Canada and the UK in the past several days:
Supreme Court of Canada Issues Several Copyright Rulings
On July 12th, the Supreme Court of Canada issued its rulings in five separate copyright cases. Four of the five cases concerned music royalties and the fifth case concerned the charge of royalties for photocopying short excerpts of works for use in education. (The controversy over assessment of this tariff was previously discussed on this blog.) In sum, the Court’s rulings established a broader reading of “fair dealing” — a phrase nearly equivalent to “fair use” under U.S. copyright law. Specifically, the Court held that photocopying textbooks for or by students for private study, even if in the context of instruction, or research is fair dealing, thereby dismantling the expensive licensing scheme put into place by Canada’s version of the CCC, Access Copyright. Duke University Scholarly Communications Officer Kevin Smith made a nice analogy of the Canadian Court’s ruling to the recent decision in the Georgia State University e-reserves case. He writes:
Another important part of these decision about instructional copying is that [Supreme Court of Canada] Justice Abella found little or no harm to the market for published work caused by this copying. The excerpts copied were short, forcing students to buy the entire books was unrealistic, and there was no link demonstrated between this copying and any evidence of declining textbooks sales. This sounds quite a lot like Judge Evan’s conclusion in the Georgia State case that permission income for publishers was of negligible importance and that there was no evidence that the permission fees lost because of fair use actually threatened the well-being of publishing businesses. I hope we are seeing the beginnings of an international consensus around the idea that limited copying for educational purposes is more important for societies to support than a small additional revenue stream for publishers is.
The reason I really like this expanded definition of research in Justice Abella’s opinion is that it gets at the heart of the analogy issue that was central to the Georgia State case. The plaintiff publishers in that case wanted the court to accept a strict analogy between electronic reserves and the commercially printed course packs that were found not to be fair use in the Michigan Documents Services case, while many of us argued that, in the absence of a for-profit copy shop’s involvement, the better analogy was physical reserves, where a copy of a work is made available for students to use (in this case by downloading into their own computers) or not. By tying the copying done by an institution to the private study purpose of the individual students, Justice Abella makes this latter argument for us. In cases like Georgia State (and the UCLA streamed video case) the law clearly allows individual students to view and even to copy works for private study. In both situations, technology simply enables the same group of students to use the materials in essentially the same way, but at their own convenience. Instructors are, as Justice Abella puts it, simply guiding the students to the resources which they will then use for their private research.
UK and EC Mandate Open Access for Government Funded Research
The Research Councils of the United Kingdom (RCUK), a body representing the UK’s seven government-funded grant agencies, announced on July 16th that it had approved a policy mandating that all publications produced from grant funded research have to be made public 6 months after publication beginning in April 2013. (The blog for the journal Nature provides a great summary of the policy and its effects.) A day later the European Commission announced that it would similarly mandate open access. Its proposal endeavors to open up all the work funded by its Horizon 2020 research program, set to run in the European Union from 2014 to 2020 and disburse €80 billion (US$98.3 billion). The EC says that it is aiming for 60% of all European publicly funded research articles to be open access by 2016. Meanwhile, in the United States, the National Institutes of Health remains the sole federal agency mandating open access for grant funded research, and a bill (FRPAA) proposing to expand this mandate to all federal agencies remains in limbo until after the November 2012 elections.
The Copyright Clearance Center (CCC) released today a brief marketing video advertising its annual copyright license for academic institutions. By paying for the license, institutions have “ready and easy” access to copyrighted materials covered by the license for use in coursepacks, e-reserves, and course management systems. There is no mention of how paying for this license includes paying for uses that would otherwise not require permission. Last week, a colleague at another institution directed my attention to another recently posted video on CCC’s site; this video is targeted, in a rather creative and humorous way, toward faculty and students. The video presents the black letter of the law, including a brief explanation of fair use, but with a subtle overtone of fear and guilt for using an author’s work without compensation. Notably, there is no indication or mention of how CCC is funding the lawsuit against Georgia State University for copyright infringement.
Ironically, another “Code of Best Practices in Fair Use” was released today by the Center for Social Media. This latest Code is for poets; previously, the Center produced codes of best practices for documentary film makers, online video creators, and dance performers. A Code for academic librarians, prepared by the Center and the Association of Research Libraries, is currently being researched and drafted. The general sentiment of these Codes is the promotion of the liberal use of copyrighted materials without permission or compensation; the creation of new culture preferred over compensation for owners. Further, the Codes are offered as an alternative to the oft-criticized guidelines put forth by Congress and others. However, as I’ve posed previously, the choice of a Code or Guidelines is more a matter of semantics than valid and binding interpretation. A similar issue concerning copyright and the interpretation by users and owners persists in Canada. The public comment period for Bill C-32, which reforms Canada’s copyright law to expand and clarify fair dealing for education, will soon conclude. The state of the Tariff on Secondary Education remains in limbo. On one side of these issues is Access Copyright, an organization like CCC, whose business is to sell annual licenses to academic institutions; on the other, institutions, faculty and students championing free and liberal use. While Access Copyright is not currently funding any litigation, it is the primary author and proponent of the tariff; it is also a vocal objector to C-32.
In both cases, I do not fully support one side or the other. Behind each message is a messenger with motives, which I may or may not agree with. Of course, in practice, standing in the middle and maintaining an unbiased and objective stance is challenging, particularly when dealing on a daily basis with persons representing the viewpoints on both sides of the fair use vs. fair compensation question. But until the message I hear is one from a legislative or judicial messenger, that is where I will remain standing.
In the United States, persons seeking permission from copyright holders to use works in a manner not covered by exemptions in the Copyright Act (e.g. Fair Use) frequently utilize the Copyright Clearance Center (CCC) to facilitate the request. The CCC collects a fee, including the royalties charged by the copyright holder, and in turn permission for use is granted. Universities frequently use the services of the CCC, who coincidentally is helping fund the litigation against Georgia State, not only to secure permissions for the posting of materials on reserve but also to collect royalties on behalf of university presses. In Canada, the organization AccessCopyright functions in much the same way as the CCC.
On March 30, 2010, AccessCopyright (AC) filed a proposed tariff with the Copyright Board of Canada to cover the reproduction of published works by Canada’s colleges and universities. Previously, AC offered licenses under which two fees were collected. Institutions paid a flat fee determined by FTE to cover day-to-day photocopying, and students paid a per-page copyright royalty when purchasing a course pack. Under the proposed tariff, universities and colleges would pay a single flat fee per student to make all the copies they need, up to 20% of any given publication. The justification offered by AC: creators are entitled to compensation when their work is used. Under the terms of the proposed tariff, faculty and students would be permitted to photocopy, scan and upload to secure networks, and email portions of copyright-protected published works.
The proposed tariff drew harsh criticism from students, university administrators, and others. In response to criticism, AC compared its proposal to the services offered by the CCC, stating: “The Copyright Clearance Centre in the United States licenses the reproduction of copyright-protected materials to post-secondary institutions in a very similar manner to the proposed tariff.” (See Response to article on proposed Access Copyright Post-Secondary Educational Institution Tariff, 2011-2013.) Despite the criticisms launched against the proposed tariff and the decision by several Canadian institutions to discontinue photocopying and reserves services altogether in the event the tariff passed, the Copyright Board indicated on November 26, 2010 that it intended to approve an interim tariff proposed by AC, while it investigates and considers the claims of over 100 objectors. This decision by the Board demonstrates a failure to acknowledge the high cost that will be imposed upon students in restraining their access to materials and upon educational institutions who do not have the budgetary means to pay the tariff. It is also a failure to acknowledge that the authors of the copyrighted works do not view the paltry royalties received as “compensation” as argued by AC. Rather it is AC, just as it is the CCC in the United States, that stands to profit from imposition of the tariff.