Schools and universities are shifting to the use of digital resources – including to online E-reserves, E-Books and other forms of digital distribution. Collective (blanket) licensing, which for years has charged schools for making analogue reproductions of excerpts of printed works for use in printed course packs has declined in value and usefulness as education invests in digital licensing that offers enhanced access and reproduction rights. To facilitate the shift that benefits all stakeholders, legal rules must reflect emerging practices in which blanket licences compete in the market with alternative licensing models. One answer, represented by Canada, is a mix of broader copyright exceptions for the use of excerpts for educational purposes combined with a shift in educational spending toward buying and licensing more digital works and digital uses of works. The result is that educational spending on licensing in Canada has increased with exceptions and licences co-existing in a manner that provides appropriate compensation for authors and publishers alongside increased access and flexibility for educational uses.
Canadian Publishers and Fair Dealing
Myth: Fair dealing and the decline in Canadian copyright collective revenues has greatly harmed Canadian publishers.
Reality: Several Canadian publishers emphasized fair dealing and the decline in copyright collective revenues in their submissions during the Canadian copyright review, but the numbers were comparatively small in the context of overall revenues. For example, Broadview Press indicated that its revenue from Access Copyright, the leading Canadian reprographic copyright collective, dropped by C$30,000 (from C$50,000 to C$20,000), or just under 1 per cent of total revenues.[1] The impact on House of Anansi was even smaller. Its submission reported that its annual revenue is approximately C$7 million with Access Copyright revenues dropping by about C$17,000 (from C$22,000 to C$5,500) or 0.2 per cent.[2]
Moreover, Statistics Canada data confirms that Canadian publishers have been largely unaffected by the 2012 reforms. According to Statistics Canada data released in March 2018, Canadian publisher operating profit margin has increased since the copyright reforms in 2012 as it stood at 9.4 per cent in 2012, 9.6 per cent in 2014, and 10.2 per cent in 2016.[3] As for the education publishing market, the data shows sales increasing for educational titles from Canadian publishers: C$376.6 million in 2014 to C$395.1 million in 2016.[4]
Myth: The decline in Canadian copyright collective revenues is linked to the inclusion of education as a fair dealing purpose in the 2012 copyright reforms.
Reality: Access Copyright told the Copyright Board of Canada in 2016 that the 2012 legislative changes merely reflected the law at the time and did not expand fair dealing. In a submission to the board, it stated “the coming into force of the statutory amendment in November 2012 did not serve to further expand fair dealing because the Supreme Court of Canada had already interpreted the exception as including that purpose.”[5]
Myth: Canadian education reliance on fair dealing has led to 600 million uncompensated copies annually.
Reality: A closer look at the sources cited by Access Copyright reveals that the 600 million page figure overstates the impact of fair dealing while relying on data that almost entirely pre-dates the 2012 Canadian copyright reforms. The majority of alleged copies (380 million copies) are taken from 14-year old copying survey information from 2005-6. The Copyright Board of Canada has noted that the data is now very old, warning both Access Copyright and school boards in 2016 that it may no longer be representative.[6] The remaining 220 million copies is derived from a study conducted as part of the York University litigation that is currently before the Federal Court of Appeal.[7] Some of the data dates back as much as 13 years for printed coursepacks that have dramatically declined in usage. Not only is the data old, but the 220 million figure represents a remarkable extrapolation by Access Copyright from a single university to estimate copying for all universities and colleges across Canada many years later. Moreover, the numbers do not account for copying covered by alternative site licenses.
Myth: Canadian publishers have not experienced the benefits of Canadian education e-book licensing.
Reality: The data shows a huge investment in Canadian e-books with universities licensing access to thousands of them across dozens of Canadian publishers. For example, the University of Ottawa data suggests that universities will typically licence the majority of e-books that are made available by Canadian publishers. It has purchased perpetual access to more than 15,000 books from Canadian publishers, including thousands of books from the largest publishers such as University of Toronto Press, McGill-Queen’s University Press, and UBC Press as well as dozens of smaller presses that have also sold perpetual access.
Further, it has licensed access to over 98 per cent of the Dundurn Press e-books that are available through DesLibris: 1,933 Dundurn Press e-books of a total of 1,965 available e-books through the database. Dundurn has also sold 459 e-books under perpetual licences to the university. There is similar data for other Canadian publishers. ECW Press, whose site says it has published “close to 1,000 books” told the industry committee that it has lost significant educational adoption revenues.[8] Yet the University of Ottawa has licensed over 99 per cent of the available ECW e-books from DesLibris: 685 out of a total 690. ECW has also sold 339 e-books – about a third of its entire catalogue – under perpetual licences to the university. Fernwood Publishing, a Canadian publisher that started in Halifax and expanded to Winnipeg, was also discussed at the copyright review. It says it has published over 450 titles over the past 20 years.[9] The University of Ottawa has licensed 86 per cent of the available Fernwood e-book on DesLibris: 254 out of a total of 295. Fernwood has also sold 186 e-books under perpetual licences to the university.
Canadian Education Licensing Practices Under Fair Dealing
Myth: Fair dealing has led Canadian education to stop paying for copyright materials.
Reality: Canadian educational institutions have embraced a digital shift in access to course materials that relies primarily on digital licensing, open access materials, and transactional licences. Evidence before the copyright review demonstrated that fair dealing and licensing co-exist, with the data confirming that fair dealing is an important but relatively small part of the permissions process. For example, the University of Guelph told the copyright review committee:
Students at the university access course readings in a variety of ways: they purchase textbooks from the university bookstore; they access materials placed on reserve in the learning management system, including 54 per cent through direct links from licenced materials, 24 per cent open and free Internet content, 6 per cent via transactional licences, with the remaining 16 per cent under fair dealing.[10]
The University of New Brunswick reported to the copyright review committee:
In terms of total Course Reserves holdings, copies of independent Canadian published excerpts represent approximately 3% of the total materials instructors are sharing with students. At UNB, the numbers show that eliminating education as a permissible purpose under fair dealing will not have any real benefit to the Canadian publishing industry. [11]
The University of Lethbridge conducted a study of materials contained in its course management system (CMS).[12] It found that 98.3 per cent of the materials in the CMS did not rely upon collective licensing. Ryerson University provided similar figures to the copyright review committee, noting:
More than 80 per cent to 90 per cent of the content we make over to our students in e-reserve is covered through licences for digital materials, links to legally posted publicly available materials and open access content.[13]
Myth: Canadian education site licensing focuses primarily on journals, not books.
Reality: Canadian educational institutions are investing heavily in e-book licenses. Indeed, in recent years many institutions have adopted “digital first” policies in which they purchase digital copies of books rather than the physical ones. For example, the University of Alberta’s open data project provides remarkable detail on all subscriptions and purchases by the university library.[14] The dataset shows massive investments in e-books from publishers around the world. For example, in 2017 it spent over C$500,000 for the Springer e-book archive, which provides perpetual access to 110,000 books with the ability to use full chapters for course materials. In 2018, it spent nearly a million dollars for three e-book packages alone: C$675,000 on a massive e-book archive from Cambridge University Press, C$155,000 for e-books from the University of Oxford Press, and C$149,000 for the SAGE Knowledge e-book collection. A review of licensing practices at the University of Ottawa reveals that it now has nearly 1.8 million e-books under licence, with nearly 400,000 e-books added in the last year alone.[15] Ryerson University reported that its e-book collection is now larger than its physical book collection and that the e-books can often be used for course materials.[16]
Myth: Canadian education widely uses fair dealing to create uncompensated printed coursepacks.
Reality: The data demonstrates that coursepacks are being abandoned in favour of CMS. The emergence of CMS as the dominant form of materials distribution has a profound impact on the Access Copyright licence. It commissioned a study on copying practices at Canadian colleges as part of its ongoing case at the Copyright Board on post-secondary copying practices which found that 55.1 per cent of the volume of copying was done for posting on a CMS, 10.2 per cent for coursepacks, 26.6 per cent for handouts in class, and 7.9 per cent through hyperlinking.[17]
Data submitted to the copyright review affirms that the shift is replicated at universities across the country. For example, the University of Calgary reported to the committee:
To keep course materials affordable, instructors are using material licensed and paid for by the library (e.g. e-journal articles and eBooks) rather than custom course packs or expensive textbooks. Indeed, the use of course packs has decreased as the availability of licensed digital resources has increased. While 118 courses used course packs in the 2013-14 school year, in 2016/17 only 85 courses used them. In 2017/18, approximately 53 courses used course packs.[18]
Myth: Canadian education has stopped using pay-per-use licensing due to fair dealing.
Reality: In addition to the massive expenditures on site licensing, the copyright review heard convincing evidence that expenditures by Canadian education on pay-per-use transactional licences collectively runs into the millions of dollars each year. For example, the University of Toronto said it paid more than C$285,000 on transactional licences in the last academic year[19] and the University of British Columbia spent C$113,409 on transactional licences.[20] The significant expenditures on transactional licences is notable because it provides compelling evidence that claims educational institutions treat fair dealing as free dealing is simply false. Universities spend millions of dollars on these licences each year precisely because there are reasonable limits to fair dealing. Contrary to the claims, universities regularly turn to licences for materials where fair dealing does not apply.
Collective Licensing vs. Site and Transactional Licensing
Myth: Copyright collective licensing offers the best way to compensate authors and publishers for copying materials from books.
Reality: The data indicates there are a sizable number of e-books that are licensed that were published before 1998. These e-books do not return royalties from Access Copyright, which only covers publications over the past 20 years. For the authors or publishers, site licensing may be the only way to obtain an ongoing economic return for copying from these older titles.
Myth: Copyright collective licensing offers better value to education than site licensing or fair dealing.
Reality: The motivation for education investing in site licenses is driven, at least in part, by perceived value. Indeed, a review of the licences makes it clear that universities are buying far more than just access. The licence terms for hundreds of thousands of e-books offers access, reproduction in course materials, and far broader range of rights and uses than those found with the Access Copyright licence. In other words, site licensing provides both access to materials and reproduction rights. Copyright collective licensing offers only reproduction rights for already acquired materials.
Myth: Copyright collective licensing eliminates the need for further licensing or fair dealing.
Reality:
While
Access Copyright and Copibec (the Access Copyright equivalent in Quebec) leave
the impression that their licences provide a one-stop solution for educational
copying, their licences do not permit unlimited copying. Given their commitment
to abiding by the law, universities subject to collective licences still find
themselves investing in transactional licences to cover their copying needs.
For example, Concordia University, which pays the Copibec collective licence,
still spends an additional C$120,000 annually in transactional licensing costs.[21]
[1] Broadview Press, “Brief to the 2018 Copyright Act Review” (9 April 2018), online (pdf): House of Commons <www.ourcommons.ca/Content/Committee/421/INDU/Brief/BR9762443/br-external/BroadviewPress-e.pdf>.
[2] House of Anansi Press/Groundwood Books, “Brief to the Standing Committee on Industry, Science and Technology for the Committee’s 2018 Statutory Review of the Copyright Act” (19 April 2018), online (pdf): House of Commons <www.ourcommons.ca/Content/Committee/421/INDU/Brief/BR9798343/br-external/HouseofAnansiPress-e.pdf>.
[3] Statistics Canada, Book Publishers, Summary Statistics, Table 21-10-0200-01 (Ottawa: Statistics Canada).
[4] Ibid.
[5] Document AC-21 in the Access Copyright – Post-Secondary Educational Institutions case [on file with the author]
[6] Canada, Copyright Board, Collective Administration in Relation to Rights Under Sections 3, 15, 18 and 21, Decision of the Board (Ottawa: Copyright Board, 19 February 2016) at 29
[7] The Canadian Copyright Licensing Agency v York University, 2017 FC 669.
[8] House of Commons, Standing Committee on Industry, Science and Technology, Evidence, 42-1, No 110 (9 May 2018) at 1600 (David Caron).
[9] Fernwood Publishing, “About Us”, online: Fernwood Publishing <www.fernwoodpublishing.ca/about>.
[10] House of Commons, Standing Committee on Industry, Science and Technology, Evidence, 42-1, No 110 (9 May 2018) at 1420 (Rebecca Graham).
[11] University of New Brunswick, “University of New Brunswick Submission to the Standing Committee on Industry, Science and Technology” (22 November 2018), online (pdf): House of Commons <www.ourcommons.ca/Content/Committee/421/INDU/Brief/BR10201981/br-external/UniversityOfNewBrunswick-e.pdf>.
[12] University of Lethbridge, “Brief Submitted to the House of Commons Standing Committee on Industry, Science and Technology on the Statutory Review of the Copyright Act” (24 September 2018), online (pdf): House of Commons <www.ourcommons.ca/Content/Committee/421/INDU/Brief/BR10040868/br-external/UniversityOfLethbridge-e.pdf>.
[13] House of Commons, Standing Committee on Industry, Science and Technology, Evidence, 42-1, No 110 (9 May 2018) at 1625 (Ann Ludbrook).
[14] Dataverse, “University of Alberta Libraries”, online: Dataverse <https://dataverse.library.ualberta.ca/dataverse/UAL>.
[15] University of Ottawa Library, “Collections”, online: University of Ottawa Library <biblio.uottawa.ca/en/about/collections>.
[16] Ryerson University, “Submission to the Standing Committee on Industry, Science and Technology on the 2018 Statutory Review of the Copyright Act” (2018), online (pdf): House of Commons <www.ourcommons.ca/Content/Committee/421/INDU/Brief/BR10276684/br-external/RyersonUniversity-e.pdf>.
[17] Document AC-4 in the Access Copyright – Post-Secondary Educational Institutions case [on file with the author].
[18] University of Calgary, “Submission on the Statutory Review of the Copyright Act” (5 September 2018) at 3, online (pdf): House of Commons <www.ourcommons.ca/Content/Committee/421/INDU/Brief/BR10008270/br-external/UniversityOfCalgary-e.pdf>.
[19] House of Commons, Standing Committee on Industry, Science and Technology, Evidence, 42-1, No 103 (26 April 2018) at 1535 (Victoria Owen).
[20] The University of British Columbia, “To: Standing Committee on Industry, Science and Technology” (11 September 2018) at 3, online (pdf): House of Commons <www.ourcommons.ca/Content/Commit ee/421/INDU/Brief/BR10020447/br external/UniversityOfBritishColumbia-e.pdf>.
[21] House of Commons, Standing Committee on Industry, Science and Technology, Evidence, 42-1, No 108 (8 May 2018) at 1535 (Nicolas Sapp).
