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Of course fair dealing for education is fair

Copyright exemption won’t lead to the demise of Canadian publishers


 

As discussion over Bill C-32, the federal government’s controversial copyright bill, heats up in Ottawa, educators, publishers, and authors remain concerned over what consequences await them if the proposed bill becomes law.

One aspect of the legislation that has sparked a fierce debate between the publishing world and the education community is the addition of “education” as a category under the bill’s fair dealing provision. Fair dealing gives permission to use copyrighted materials without the permission of or payment to the copyright holder for specific purposes covered by the Copyright Act. Currently, only materials used for research, private study, criticism, review and news reporting are covered under fair dealing.

Those who support adding of education to this list feel that it would allow instructors to introduce new information and technologies into their classrooms without fear of breaking the law.

Those against the change, mainly publishers and authors, feel that the term “education” is too general, and will lead to widespread copying of anything and everything that could be labeled an educational material. They are concerned this will lead to massive losses in revenue for the Canadian publishing industry and that creators will not be fairly compensated if their work is being copied instead of purchased.

However, the claims that the addition of education as a fair dealing category will lead to the erosion of the Canadian publishing industry and rampant copying of materials completely free of charge are grossly exaggerated. The change will only help clarify what kind of copying is acceptable in an educational setting and allow educators to expand their lesson plans to use a myriad of technologies outside of traditional print materials.

Publishers have argued that illegal copying already costs the industry almost $75 million per year.

“The risk is that well-meaning educators could be making multiple copies of these publications, completely destroying the market for our materials,” Greg Nordal, CEO of Nelson Education, Canada’s largest education publisher, told the National Post.  He estimated that the Canadian textbook market rakes in about $500 million per year.

Law professor and Canada Research Chair of Internet and E-Commerce Law at the University of Ottawa, Michael Geist, said that including education under fair dealing won’t make any and all educational copying free. Geist explained the change will only make educational copying eligible for analysis by the Supreme Court of Canada, to decide if the copying can be covered under the fair dealing provision.

“To claim that including education is going to make everything free is clearly, patently wrong,” Geist said in the National Post.

Geist further explained that the law will allow instructors to bring new information and  technologies into the classroom “without fear that as you make incidental copies in the classroom that you’re breaking the law.”

For example, under the amendment, professors could post a recorded lecture online “even if one slide included a copyright-protected image,” explained Sara Diamond, president of the Ontario College of Art and Design, in the Toronto Star, making it more accessible for students.

Covering educational materials under fair dealing won’t mean that all educational materials will be considered “fair.” While details of the new provision aren’t set in stone, attempting to substitute the payment of textbooks or novels by copying them would likely not be considered a legitimate fair dealing practice. As Geist explained, there are few in the “education community that would argue that somehow that would qualify for fair dealing.”

If the amendment is passed, it will allow educators and students to make innovative use of new materials and technologies in the classroom without fear of copyright infringement. If anything, this will lead to greater exposure for creators in an educational setting. This would be beneficial for students, educators, and creators alike.


 

Of course fair dealing for education is fair

  1. Why does MacLeans publish the unsubstantiated claims of the publishing industry? $75M???? What evidence. This is a number picked out of the blue. The Publishing industry does not mention that this “education” inclusion will still not give Canadian educators the same rights that US educators have. They want US style restriction like digital locks, but are not willing to compromise with US style fair dealing for education.

  2. Nelson’s Greg Nordal is a typically panic-like response to a new and fair approach to copyright. The Bill itself isn’t perfect but as it’s explained by Michael Geist and Sara Diamond, this is a truly beneficial change and offers opportunities to education, not to rampantly pirate works, but to provided quality educational materials without fear of legal entanglement.

  3. I’ll be honest – Prior to reading this article, I never even knew that their was an “oncampus” version of Maclean’s. I became aware of this article because professor Geist posted about it at his blog. I’m a regular reader of the online version of Maclean’s, and I subscribe to all of the RSS feeds of the mothership. I’ve now subscribed to the RSS feed of “oncampus”, and look forward to reading articles of interest.

    I’ve found it very sad that the mothership has ignored anything and everything with regards to C-32, as well as matters pertaining to telecom. I’ve been trying to get the national editor, Andrew Coyne, to explain things: http://www2.macleans.ca/2010/11/26/why-should-polygamy-be-a-crime/#IDComment112097197

    I’ve now subscribed to the RSS feed of “oncampus”, and have noticed that the mothership actually does cross-post content from “oncampus”. Unfortunately, whoever it is that calls the shots did not deem this article worthy enough to be passed on to the wider readership. I would love to know why this is the case. It really is a shame that mainstream media offers very little discourse on such issues that will affect all Canadians.

  4. I have to really wonder about the politics of C-32.

    There are two issues which are getting undeserved attention.

    Fair Dealings expansion to education: After C-32, Canadian copyright law will still be tilted more in favour of copyright holders (sometimes authors, but predominantly publishers) than the United States. Most of the relevant educational publishers are North American, not Canadian, and Canada is comparatively a small part of the marketplace. The idea that Canada getting a tiny bit closer to US policy will in any way harm the legitimate interests of publishers is laughable.

    The expansion of the existing private copying regime for recorded music to devices (currently only applies to audio recording media): This is not something that is in a bill that was passed at second reading, so is highly unlikely to be part of the final bill any more than any other random off-topic concept will be part of the bill. If opposition members were actually concerned with this they would have ensured the bill was sent to committee before second reading. The number of people who are not recipients of this compulsory licensing regime (like actors — this is a regime that only applies to recorded music) that are putting all their eggs in this basked only shows that these people don’t understand the basics of the policy they are complaining about.

    On the flip side, the most dangerous aspect of C-32 for Canadian creators is technological protection measures (TPMs), the so-called “digital locks”. Many non-technical people are duped into thinking that copyright holders manage the keys for these “digital locks”, and thus the locks benefit them, but the reality is quite different. First, there are two locks not one (one on content, and one on devices that are “allowed” to access that content), and in both cases it is the technology provider an not the owners (copyright holder, owner of device) that holds the keys.

    For no other type of property would this be considered. We would never legally protect non-owner locks to all guns in a country where many are uncomfortable with the mere registration of long guns. We would never legally protect non-owner locks on our homes, alleging this was necessary to protect the insurance industry from fraud. We would never legally protect non-owner locks on our cars, allegedly to ensure that automobiles could never be used as a getaway vehicle.

    This is a massive threat to the rights of copyright holders and technology owners… and yet these other non-issues are taking up so much time at committee and in the reporting of the bill.

  5. Pingback: La loi C-32 sur la modernisation du droit d’auteur: une bonne nouvelle pour les profs? | Blogue technopédagogique

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