In a very small and self-contained community of interest – writers and teachers – there’s been a great deal of talk recently about a Supreme Court of Canada decision concerning copyright and education. You almost certainly haven’t heard about it, because you almost certainly don’t care that much about copyright. But for Canadian authors and the educators who regularly use Canadian writing while teaching, the decision in Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 had some important things to say about how creative works are copied and used in the classroom.
In short, Canadian authors lost this round in an increasingly ill-tempered copyright dispute. Accustomed to winning when our rights are clearly being infringed, this decision against the interests of writers was a blow. As a professional writer, I strongly disagree with it. I’m somewhat comforted by the fact that four Supreme Court justices disagreed with it too, but the other five justices carried the decision.
What exactly did Canadian writers lose? There has been no shortage of legal theorists loudly proclaiming that the rules of copyright have been forever changed.
According to these “free culture” activists, schools and universities can suddenly decide not to pay traditional collective licensing fees, or any licensing fees for that matter, for copyright-protected materials. At least one says the recent decision “eviscerates” collective copyright licensing in Canada.
Well, it doesn’t, and the advice to education from the free culture movement has little if any relation to what was actually said in the decision, which ruled on a tiny portion (7 per cent) of the collective licensing territory in elementary and high schools. It suggests that a very small subset of the hundreds of millions of pages copied by teachers in those schools might be free. Yet the free cult is now proposing that fair dealing has been hugely expanded and that all copying in schools is now in the land of the free.
Remember when copying in schools was considered bad? So do I.
The free cult is pushing wild expansion of the Supreme Court’s focus and an irresponsible reading of the legal principles in question. If Canadian educational boards and postsecondary institutions buy into the fervour, they will undoubtedly find themselves dealing with legal challenges, and legal losses, for years to come. The bottom line is that copyright-protected material remains the property of those who create and publish it. Use without permission or compensation, outside a still confusing and ill-defined concept of “fair dealing,” is illegal.
There’s a lot of head shaking going on in writing and publishing circles right now. Professional writers are being pushed to the point of taking universities, colleges and maybe even libraries to court for copyright infringement. I personally love both universities and libraries – I do much of my own writing in a university library – yet I may have to sue these folks to protect my own rights. How did we get here?
Canada’s populist free cult will have a lot to answer for in the coming legal battles. I hope schools and libraries eventually recognize who has led them down the weedy path and away from their traditional partners. “There’s no free lunch” can be a painful lesson.
John Degen is a poet, novelist and freelance journalist. His novel The Uninvited Guest was shortlisted for the Amazon.ca First Novel Award in 2007.