Debates around fair use and fair dealing are often fierce. For some, they mark a step away from old certainties and bring new and unwanted risks. For others, they are a means of reducing the rigidity of strict, code-based legal systems that risk harming libraries’ ability to serve their users.
In the middle of this abstract debate, the case of Canada’s 2012 copyright reforms is frequently cited as a case study. In debates in Australia and South Africa, for example, there are references to ‘Canadian Flu’ – the idea that extending fair dealing to education has been disastrous. Of course it is worth noting that it was arguably a series of decisions by the Canadian Supreme Court that effected the change, and that the government merely confirmed this state of affairs.
Nonetheless, given that this is being presented as evidence in debates around the world, it’s worth a fuller exploration of the symptoms. What is actually going on, and what diagnosis can we make?
Doctor, Doctor! The Symptoms
The most obvious event in the last few years has been the significant fall in the revenues collected by Access Copyright, Canada’s collecting society for reprographic (photocopying) rights. This has, logically, led to a fall in the revenues paid out to authors and publishers through this particular channel.
It is also true that a number of companies have gone out of business, or international companies have reduced their Canadian operations. Nelson, a major Canadian publishing company, declared a form of bankruptcy, and Oxford University Press closed its division providing materials for schools.
At the same time, a proper diagnosis is not possible without looking at everything that is going on. A crucial point is the growth in sales of electronic content, and that these materials appear to be replacing the sorts of course-packs that formed a key part of Access Copyright’s revenues. In the university sector, library spending on publisher content has grown systematically since 2012. The share of digital vs physical has reversed between 2002/3 and 2015/6.
This has impacted the textbook market (including the market for taking copies of textbooks), alongside falling numbers of young people, greater use of individual books, and textbooks themselves lasting longer. Licences offered for whole eBooks are often indeed cheaper than licences for individual chapters.
Meanwhile, Canadian education is doing well, coming close to the top of the table in the OECD’s PISA study, while its publishing industry as a whole is growing at twice the speed of the United States. As for the educational sector, it is the cost of books compared to budgets that is cited as a reason for not using more Canadian content.
On the Couch: a Diagnosis
While the core observations – the reduced revenues of Access Copyright and the closure of some companies – are obviously true, some of the surrounding arguments are more dubious.
The idea that the reform has put companies out of business is undermined by the fact that Oxford University Press’s Annual Report for 2013-14, which notes the closure of its schools division, places the blame on a longer-term decline in the market that is cited as a reason (falls of 50%). Meanwhile, the company celebrates its continued investment in Higher Education and English language programmes. Nelson’s demise seems to be a delayed consequence of taking on too much debt in the years before the financial crisis.
The notion that there have been 600 million pages being copied without payment seems to be based on highly questionable assumptions, with many of the supposed copies actually having been paid for, and the 2005-06 baseline unlikely to be relevant. And as has been highlighted in submissions to the Canadian parliament, the impact of falling revenues from Access Copyright has affected revenues by as little as 1%.
Overall, if the patient is the publishing industry as a whole, it appears to be healthy, although of course there can be claims that it would be healthier still otherwise. Indeed, figures for 2014-16 for example show Canadian-owned publishers increasing sales while foreign-owned ones saw a fall.
But arguably, the most important patient is not the publishing industry, but Canadian education as a whole. Quality publishing does play an important role in this, and certainly schools and universities would be poorer without it. At the same time, it is vital to take account of the interests of students and educators, who have reported that the reforms have allowed them to teach – and learn – much more simply.
As highlighted at the beginning, the move to fair dealing for education in Canada, both through the actions of the Canadian Supreme Court and the government, has arguably had a very concentrated impact on one player – Access Copyright. This has had knock-on effects on publishers who, nonetheless, seem in many cases to have benefited from growing revenues from other sources.
Moreover, once a wider perspective is taken, and all symptoms and trends are taken into account – in particular the impact on learning – the Canadian patient is arguably in good health.