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Publishers say new bill will strip incentive to supply textbooks

Canadian publishers say recently passed copyright reform is stripping away some of their financial incentive to provide books to the country’s universities and colleges.

In the new law, ‘education’ – the term is otherwise undefined – has been added as a purpose under ‘fair dealing’ which, according to Carolyn Wood, executive director of the Canadian Association of Publishers, means “copying need not be compensated if the purpose of the copying is education”.

Wood told University World News that this provision under the Copyright Modernization Act (Bill C-11) could be interpreted as permitting uncompensated access to copyrighted materials in schools and universities, without requiring them to pay levies to collecting societies for photocopying or scanning.

“It seems inevitable that such interpretations will be made, and that rights holders will be forced to challenge them through the courts,” she said.

“At the very least, we are facing a new dimension of market uncertainty, the likelihood of expensive litigation, and the possibility of substantial erosion of a crucial revenue stream.”

Greg Nordal, president and CEO of Nelson Education Ltd, Canada’s leading educational publisher, agreed that expanding provisions for ‘fair dealing’ within Bill C-11 to include educational purposes creates great uncertainty for publishers and authors.

“The expanded fair dealing provisions change the investment climate for new curriculum resources, in that the principles of reimbursement to rights holders appear to be undermined,” he said.

“Why would publishers and authors invest their time and money creating new, indigenous materials in support of Canadian educational requirements, unless there is confidence of getting viable financial returns?”

A letter sent to Canadian government senators in June 2012 on behalf of the Canadian Publishers’ Council, the Canadian Educational Resources Council, the Association of Canadian Publishers and the Literary Press Group of Canada, reflects the same sentiment.

It advocates that marketplace predictability is an essential requirement for any publisher assessing investment opportunities, and weighing risks. If publishers become uncertain about the stability and viability of the market, said the letter, “they will pull back on their investment and innovation”.

The fair dealing exception will not only have an impact on the segment of Canadian publishing and writing geared specifically towards education, the letter argued, but will also harm those “whose works are not primarily created for the education market, but are nevertheless frequently used for educational purposes”.

There is even concern from publishing groups in other countries.

In May, Thomas H Allen, president and CEO of the Association of American Publishers, sent a letter to the Canadian government: “If adopted in its current form, [the law will] be extremely detrimental to the educational publishing industry, both in Canada and the US,” he wrote.

Allen added that leaving the term ‘education’ undefined could lead to a dramatic change in the industry, and may also bring “destabilising disruptions to long-established licensing arrangements”.

While the publishing industry appears to be up in arms, Canadian universities are welcoming the passage of the bill.

“The bill will…help to balance the needs of researchers, students and professors with those of creators,” said Paul Davidson, president of the Association of Universities and Colleges of Canada (AUCC), in a statement.

“Universities, as both users and creators of copyrighted works, have worked hard for more than a decade to push for a new copyright act, and see Bill C-11 as a very fair approach to competing interests.”

According to the AUCC, Bill C-11 will permit university researchers to obtain and keep research materials in digital format, which is expected to help facilitate online learning and distance education.

Dr Michael Geist, who holds the Canada research chair of internet and e-commerce law at the University of Ottawa, said he believes that concerns from the industry are “unfounded” and that claims that the changes will allow for unlimited copying are false.

“Canadian fair dealing analysis involves a two-part test,” he said. “First, does the use – or dealing – qualify for one of the fair dealing exceptions? Second, if it does qualify, is the use itself fair?”

The extension of fair dealing to education, said Geist, only affects the first part of the test – which means that while legislation will extend the categories of what qualifies as fair dealing, it does not change the need for the use itself to be fair.
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