US Copyright Lobbyists Equate Fair Dealing To Piracy And Copyright Infringement

from the also:-our-jacked-up-rates-no-longer-as-lucrative-as-they-used-to-be dept

Access Copyright, the Canadian collection society that licenses publications for use in Canadian educational institutions, increased its per student rates 1,300% back in 2010. Anyone with a passing familiarity with the term “pricing yourself out of the market” could have predicted the inevitable outcome. Faced with suddenly exorbitant fees (that even covered stuff nominally outside of AC’s purview — like hyperlinks), Canadian universities dropped Access Copyright and began working to license educational materials without AC’s assistance.

Access Copyright thought being the “only game in town” would prevent a mass exodus, but it soon became clear universities would be more than happy to deal with the complexities of direct licensing rather than take the easy route and be gouged by AC. (Fun fact: rates jumped 1,300% but less than 10% of these fees make their way back to the actual authors.) 14 of Canada’s top 25 universities had dropped Access Copyright by the middle of 2011.

US publishers aren’t happy with the outcome of Access Copyright’s rate hike, which has resulted in a considerable revenue drop. Of course, they don’t blame Access Copyright. In its submission for the 2014 Special 301 report (the report that serves as the copyright industries’ naughty/nice list), IIPA (the uber trade group representing all of the other copyright maximalist trade groups) blames everyone and everything but Access Copyright.

As the Canadian education community continues to shift away from the Access Copyright licence, relying instead on a combination of site licenses for materials, open access, fair dealing, and individual transactional licences, U.S. publishers are now urging the U.S. government to pressure the Canadian government to take action.

Yep, the problem here is fair dealing (the Canadian version of fair use), open access and the universities’ willingness to swim in the convoluted waters of individual licensing rather than be extorted by Access Copyright. A few long paragraphs from the submission detail US publishers’ unhappiness with the current situation and their expectation that the US government will “do something” to restore its access to exorbitant licensing fees.

U.S. publishers serving the educational market with textbooks, journals and other materials are currently facing a comprehensive collapse of an important element of their Canadian market: licensing revenue for permission to copy works for educational uses. Well-established collective licensing mechanisms for administering such permissions are reeling under the combined impact of adverse judicial decisions and drastic legislative changes.

Interrupted here to note that US publishers do not consider a steep rate hike to be the problem. Instead they call out “judicial decisions” and “drastic legislative changes,” ignoring the economic reality that if you suddenly jack up prices, customers tend to flee.

The Copyright Modernization Act added “education” to the list of purposes (such as research and private study) that qualify for the fair dealing exception. Because “education” is not defined, the amendment creates an obvious risk of unpredictable impacts extending far beyond teaching in bona fide educational institutions (and far beyond materials created specifically for use by such institutions).

Entities heavily vested in copyright protection hate exceptions…

Even before the fair dealing amendment came into force, some of the decisions in the “pentalogy” of copyright decisions issued by Canada’s Supreme Court in July 2012 posed a direct threat to the educational licensing market. These decisions underscored, among other things, that Canadian courts are to treat fair dealing, not as an exception, but as a “user’s right,” subject to a “large and liberal interpretation”; that the purposes of the putative user, not those of a commercial or non-commercial intermediary that actually makes the copy and supplies it to the user, are of primary relevance in determining whether a dealing is fair; and, that factors such as the availability of a license to make the use, and even the overall impact of widespread unlicensed use on the actual or potential markets for the work, carry much less weight in Canadian law than they do in U.S. fair use jurisprudence.

Canada has gone considerably farther than the US, viewing fair dealing both as a right and something subject to “liberal interpretation.” The complaint here boils down to that last sentence: Canada’s law isn’t as restrictive as the US’s and, therefore, must be forced into compliance by the US government.

Although the Alberta Education v. Access Copyright case in the Supreme Court’s pentalogy directly affected only a marginal aspect of the educational copying collective licenses — reprographic copying of a few pages per student per year of short excerpts of already purchased supplemental texts by K-12 teachers for use in class instruction — its ultimate impact has been much more destructive.

Only in the fevered mind of a maximalist is expanding fair use exceptions considered “destructive.” Keep in mind that this is an industry that is actively begging its respective governments to help it make it more expensive to educate students.

Lawyers for primary and secondary school systems across Canada, giving both the precedents and the new fair dealing amendment the “large and liberal” reading that the pentalogy decisions encouraged, concluded that fair dealing now eliminates the need for them to obtain any license from a collecting society such as Access Copyright, including for uses such as copying of primary textbooks or of newspaper articles, course packs, digital copying (including digital storage and distribution through learning management systems), and copying for uses outside the classroom. Consequently, as soon as the new Act came into force, virtually all K-12 school boards across Canada cancelled their licenses with Access Copyright.

The publishers once again fail to consider the possibility that lower rates might have helped it retain more licensees. This isn’t just because of legislation and court decisions. This is also the bleeding that normally results from an enormous, self-inflicted wound.

Anticipated 2013 annual licensing revenue of at least C$12 million to right holders and authors — much of it destined for U.S. publishers, which enjoy a large market share in the educational sector – evaporated. Similar legal advice was provided to post-secondary institutions, and many of them have declined to renew their Access Copyright licenses as they expire. Access Copyright negotiations with two of Canada’s largest universities — the University of Toronto and Western University – collapsed in recent weeks over this issue. The licensing revenue stream from higher education – historically larger than the K-12 revenue – is thus in immediate jeopardy…

Just in case anyone reading the submission might be unsure of whose interests are being protected, the publishers spell it out in black and white.

After stating its case against fair dealing, the publishers move on to their demands for government intervention.

Publishers are already re-assessing their planned investments in new materials for this core market. We urge the U.S. government to engage with Canadian authorities to ameliorate this threat to the entire educational publishing market in Canada, which is already having deleterious impacts on publishing revenue, investments and jobs on both sides of the border.

In other words, punish the Canadian government for Access Copyright’s sins.

But all of this above isn’t even the best/worst aspect of this submission. This long complaint about the whirlwind Access Copyright reaped after its 1,300% fee increase makes up the bulk of a subsection in the IIPA’s submission. Guess what subheading the US publishers chose to place their attack on fair dealing under.

The Piracy and Infringement Situation in Canada – Offline

That’s right. US publishers feel fair dealing exceptions are inseparable from piracy and infringement. Legal exceptions also known as the rights of users, backed by Canadian legislation and judicial decisions, are discussed (well, complained about) in a subsection supposedly dealing with infringing activity. By the time the US publishers have finished griping about fair dealing, there’s hardly any room left to discuss actual infringement or piracy. But if you have any doubts about the mindset of US publishers when it comes to fair use exceptions, check this out. This is the last sentence of the last paragraph dealing with Access Copyright and fair dealing.

Even if some expanded uses are permitted, the appropriate balance must still be struck so that educational publishers are duly compensated for their works, thus ensuring a viable domestic marketplace for commercially-published educational materials.

This is the first sentence of the immediately following paragraph.

Serious piracy problems persist in Canada’s offline marketplace as well.

The annual Special 301 reports have always been a joke — albeit an in-joke created by lobbyists and subservient government officials. If there was ever any doubt US copyright industries are lobbying hard for the US government to remake the world’s IP laws in its own image, this long complaint about the “unfairness” of another country’s fair dealing laws completely erases it.

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Companies: access copyright, iipa

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Comments on “US Copyright Lobbyists Equate Fair Dealing To Piracy And Copyright Infringement”

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50 Comments
Anonymous Coward says:

Re: Re: Re: Can we just...

1) Keep in mind “the legitimate uses are far outweighed by the illegitimate uses, therefore the whole thing should be scrapped” is basically the same logic the copyright industry has argued from time to time about new technology. Just because copyright has gone off the rails in the last 40 or so years as the corporate media industry grew does not mean copyright is obsolete or can be scrapped. Indeed, removing copyright entirely would basically be an open invitation to the media industry to openly plagiarize other’s works for their own benefit. I’m sure plenty of media corporations will be thrilled to be free of the burden of paying out almost any sort of royalties.

2) Where it needs to be voted on means that politicians will be the ones involved.

3) Again, the people won’t get a direct vote on it. They need to be fed up enough to elect people specifically to abolish copyright, make sure those people know that, and then punish them when they don’t until enough of them do that it’s gone. And getting rid of it and keeping it gone for any length of time would likely require a constitutional amendment, which is even harder.

Jay (profile) says:

Re: Re: Re:2 Can we just...

Keep in mind “the legitimate uses are far outweighed by the illegitimate uses, therefore the whole thing should be scrapped” is basically the same logic the copyright industry has argued from time to time about new technology.

At this point, the logic and legality of copyright is suspect, with very little validity and trust when it comes to the public anyway.

Just because copyright has gone off the rails in the last 40 or so years as the corporate media industry grew does not mean copyright is obsolete or can be scrapped.

No… The fact that we’ve had the VERY same fights as those in the 1800s means that copyright is obsolete. The fact that copyright can be used to censor people means it’s obolete. The fact that the express purpose of copyright is to enrich the public domain has been usurped by corporations to not compete with the past means that copyright is obsolete. There is no contradiction. Copyright has no uses to be balanced if the public does not benefit.

Indeed, removing copyright entirely would basically be an open invitation to the media industry to openly plagiarize other’s works for their own benefit.

And? People have social mores to deal with that instead of statutory legal threats.

Again, the people won’t get a direct vote on it. They need to be fed up enough to elect people specifically to abolish copyright, make sure those people know that, and then punish them when they don’t until enough of them do that it’s gone. And getting rid of it and keeping it gone for any length of time would likely require a constitutional amendment, which is even harder.

Uh… No it’s not. Get copyright down to 30 minutes, ask the GAO to look at the effect on the market, then move forward accordingly.

Anonymous Coward says:

Re: Re: Re:3 Can we just...

At this point, the logic and legality of copyright is suspect, with very little validity and trust when it comes to the public anyway.

You miss the point. “It is abused therefore it must go.” is the exact same argument used by the MPAA and RIAA for VCRs and MP3 players, and pretty much any other new technology. It is a very bad argument that is just as bullshit when you make it as it is bullshit when they make it. It does jack shit in the way of analysis of the current situation, or consideration of the implications of the change.

No… The fact that we’ve had the VERY same fights as those in the 1800s means that copyright is obsolete. The fact that copyright can be used to censor people means it’s obolete. The fact that the express purpose of copyright is to enrich the public domain has been usurped by corporations to not compete with the past means that copyright is obsolete. There is no contradiction. Copyright has no uses to be balanced if the public does not benefit.

That the same fights occurred in the 1800s does not mean copyright is obsolete. It just means people keep trying to abuse the system in the same way. Nor do those others things mean that copyright is obsolete, it just means that it is being abused.

Uh… No it’s not. Get copyright down to 30 minutes, ask the GAO to look at the effect on the market, then move forward accordingly.

Ok, when was the last time anyone other than Congress voted on a federal law? The public doesn’t vote on laws, Congress does. To change the law, you have to browbeat them into doing it. The point that you’re missing is that even if you browbeat one congress into completely abolishing copyright, nothing will stop the next congress from restoring it, complete with retroactive copyrights for the period it was gone. The only way to slow down that would be a constitutional amendment that removes the constitutional basis for copyright, and flat out bans copyright. Shit like “get copyright down to 30 minutes” won’t happen any more easily than abolishing copyright.

Mega1987 (profile) says:

where's the REAL results please?

all talk but no actual effects other than making their products as expensive as hell that only those who where low-high class(if there’s any low-high classes in the current society.) can afford them…..




While the rest go green with envy as they can’t buy those goods… especially the ones that ARE actually essential to basic human needs….

they’re not attracting loyal consumers…

They’re just attracting reluctant consumers with driving away Majority of the population to the pirates, where they can get the same products at affordable budget level cost…

crade (profile) says:

Re: where's the REAL results please?

That’s the funny thing, they aren’t even pirates. They never had to pay them in the first place because education is exempt in many cases. They were basically just extorting fees before because it was easier for universities to pay than to navigate the legal maze of what you are allowed to use as part of fair dealing, and changing your policies to comply.

Anonymous Coward says:

Re: Re: Re: where's the REAL results please?

Well, it is not only that. They do work with individual publishers to assure deals. So it is ‘blanket licensing’ that is more expensive than a couple of good lawyers. Doesn’t make much of a difference, though it makes it less absurd.

Access Copyright thought they didn’t have to compete against anyone. Now they have made the combination of individual negotiations, use of legal rights and open access into a competitive business for all larger educational institutions. With the addition of the 2012 ruling and the fair dealing extension they are even more screwed since it makes the alternative even more attractive. Not sure Access Copyrights troubles should be US educational publishers main concern. Individual negotiating should cover that. No, what they are trying to fight are the political concensus and educational institutions in Canada. It seems like an uphill battle to me.

Anonymous Coward says:

obviously, the best way to get something done is to ignore the real reason, put the blame fair and square on to the exact opposite reason and then expect the government to pressure another government into accomplishing the aim! i’d say, just at a rough guess, by the end of the Summer, they will have everything as they want it simply because Harper is a complete industries rent boy, having already giving in and charging extra for as an example, blank disks (which the industries wanted to compensate them for file sharing), but will ignore that fact and keep the prices as they are with a bit more on top! he’s also as gutless as those ‘leaders’ in the EU, who will do whatever they are told by the USA government, who in turn, is told what to do by the entertainment industries, who are the ones really running the country, using Obama as the front man and inevitably, the fall guy!

Anonymous Coward says:

Again the results of continually jacking the price up while lowering what the license covers is shown. I suggest the copyright industry pay heed while there is still time.

If the US publishers feel that they are loosing money in the Canadian market then by all means pull up stakes and don’t serve that market. Exactly how long do you think it will take Canada to figure out that there are overseas places that will print their books for them and a new to Canada market open up? If the US publishers were butt sore before imagine what they would be by pulling out completely? So that’s a pretty empty threat.

No the tactic is to steadily bitch, complain, and cry, about not getting enough money. Even at a time when the economy is and has been in the dumps.

Anonymous Coward says:

Re: Re:

Have people forgotten what the primary purpose of quotation marks is? I’m pretty sure that is meant to quote actual terms used in the decisions to which they refer. But given that these are copyright maximalists that are inherently dishonest in the way they present things, you could be right. I wouldn’t put it past them to use scare quotes in the manner that you are suggesting.

mattshow (profile) says:

Most Canadian universities aren’t actually going the individual licensing route. They still purchase their licenses from intermediaries… just not Access Copyright. This is because Access Copyright absolutely refuses to offer transactional licenses. You cannot purchase a license to make 30 copies of a chapter from a specific textbook from Access Copyright. They only offer one license: a huge, campus-wide license that covers all copying on campus and costs tens of thousands of dollars a year.

Compare this to a cable company. Most consumers already dislike channel bundling. Well AC is like a cable company that only offers one bundle: every single channel they offer. You either buy that or you buy nothing at all. Who would sign up for that?

As a bonus, the AC license also comes with onerous license terms that give AC the right to “audit” university records (including their computer systems) to make sure the university isn’t making copies they aren’t reporting, and completely eliminates the university’s ability to exercise their fair dealing rights (it requires payment for ANY copies, even if they are very clearly fair dealing).

You know who doesn’t do any of that shit? The US-based Copyright Clearance Centre. They will happily sell transactional licenses (via an easy-to-use online interface) and won’t try to claim the right to snoop through through the university’s records later on. Many Canadian universities are buying licenses through CCC. Universities also buy licenses to copy and distribute journal articles as part of their subscriptions to electronic journal databases.

Yes, the Supreme Court rulings on fair dealing hit AC hard, since it reduced the number of instances in which university’s require a license. But their business model has a lot more problems than just that.

Richard (profile) says:

I don't understand

I don’t understand why university teachers bother to copy copyrighted stuff. I’ve taught in a university for over 20 years and the sum total of copied stuff I’ve used is three (separate) pages plus one copyright free package relating to some (copyright free) realtime s/w.

Everything else (many hundreds of pages) has been generated by me – and I could easily have done without the small amount of copying.

If I was typical then Access Copyright would never have had a business model in the first place.

Rikuo (profile) says:

Re: I don't understand

…you say you’re a university teacher for 20 years and have never had to copy copyrighted material?

Ever?

How do you do your job then? I presume you do research. That would entail copying earlier works, done by other people, that is almost certainly copyrighted (at least, work that hasn’t been done by scientists working on US government funds, which (ought to) go to the public domain), quoting hypotheses and theories about whatever field you’re in and then presenting your own findings in either support of or as a rebuttal to them.

btrussell (profile) says:

Re: Re: I don't understand

Sounds like you are calling reading, copying.

Are you saying that if I purchase a book, teach myself about something, then decide to teach others what I have learned, that the others must also purchase the same book or they, and I, are infringing?

Are we allowed to ask our children what they have learned in school today or do we have to purchase a textbook for every family member who may over-hear first?

Strictly at a university? Scenario for program with 300 students:
Here is my assertion:
prove/disprove.
How many books must be purchased for above scenario?

Despite what you have been told, not all classes are equal.

Mason Wheeler (profile) says:

We urge the U.S. government to engage with Canadian authorities to ameliorate this threat to the entire educational publishing market in Canada

We (everyone who’s ever been to college) urge the Canadian government to remember the ridiculous prices they were forced to pay for textbooks when they were in college, and then choose to further pursue policies that will threaten the entire educational publishing market.

That One Guy (profile) says:

Re: Re:

They couldn’t do that, they might get put on The List, otherwise known as the 301 Report, filled to the brim with those that aren’t dancing to the maximalis- I mean those dirty pirates, rebels who refuse to acknowledge that US law applies in every country, kickers of puppies, and the kinds of fiends who ask for extra ketchup packets at the drive-through even though they probably won’t need them.

Just Sayin' says:

Cool Story Bro!

“the Canadian collection society that licenses publications for use in Canadian educational institutions, increased its per student rates 1,300% back in 2010.”

First off, you will probably get an extra cookie from Mike this week for creating a nice link chanin. 4 windows later, I can actually see the original document, and realize that the 1300% increase was a single time increase after more than 20 years without an increase, from a very small amount of $3 a student to $45. Calling it 1300% makes it sound much more than a $42 increase does, I guess.

The reality is that the amounts asked for by AC are not particularly high, just that the rates collected in the past were probably way too low. When you consider that the average student spends tens of thousands of dollars on their education (and often that much again in rent and such to live near campus), the amount asked for is not unreasonable.

Fair dealing was not meant to be an open tap, nor a way to bypass responsibilities for either side. The conservative government in Canada is very likely to, if pressured, change the law to resolve the issue in favor of business, not the consumer.

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