US Copyright Lobbyists Equate Fair Dealing To Piracy And Copyright Infringement

Access Copyright, the Canadian collection society that licenses publications for use in Canadian educational institutions, increased its per student rates 1,300% back in 2010. Anyone with a passing familiarity with the term "pricing yourself out of the market" could have predicted the inevitable outcome. Faced with suddenly exorbitant fees (that even covered stuff nominally outside of AC's purview -- like hyperlinks), Canadian universities dropped Access Copyright and began working to license educational materials without AC's assistance. Access Copyright thought being the "only game in town" would prevent a mass exodus, but it soon became clear universities would be more than happy to deal with the complexities of direct licensing rather than take the easy route and be gouged by AC. (Fun fact: rates jumped 1,300% but less than 10% of these fees make their way back to the actual authors.) 14 of Canada's top 25 universities had dropped Access Copyright by the middle of 2011. US publishers aren't happy with the outcome of Access Copyright's rate hike, which has resulted in a considerable revenue drop. Of course, they don't blame Access Copyright. In its submission for the 2014 Special 301 report (the report that serves as the copyright industries' naughty/nice list), IIPA (the uber trade group representing all of the other copyright maximalist trade groups) blames everyone and everything but Access Copyright.

As the Canadian education community continues to shift away from the Access Copyright licence, relying instead on a combination of site licenses for materials, open access, fair dealing, and individual transactional licences, U.S. publishers are now urging the U.S. government to pressure the Canadian government to take action.

Yep, the problem here is fair dealing (the Canadian version of fair use), open access and the universities' willingness to swim in the convoluted waters of individual licensing rather than be extorted by Access Copyright. A few long paragraphs from the submission detail US publishers' unhappiness with the current situation and their expectation that the US government will "do something" to restore its access to exorbitant licensing fees.

U.S. publishers serving the educational market with textbooks, journals and other materials are currently facing a comprehensive collapse of an important element of their Canadian market: licensing revenue for permission to copy works for educational uses. Well-established collective licensing mechanisms for administering such permissions are reeling under the combined impact of adverse judicial decisions and drastic legislative changes.

Interrupted here to note that US publishers do not consider a steep rate hike to be the problem. Instead they call out "judicial decisions" and "drastic legislative changes," ignoring the economic reality that if you suddenly jack up prices, customers tend to flee.

The Copyright Modernization Act added “education” to the list of purposes (such as research and private study) that qualify for the fair dealing exception. Because “education” is not defined, the amendment creates an obvious risk of unpredictable impacts extending far beyond teaching in bona fide educational institutions (and far beyond materials created specifically for use by such institutions).

Entities heavily vested in copyright protection hate exceptions…

Even before the fair dealing amendment came into force, some of the decisions in the “pentalogy” of copyright decisions issued by Canada’s Supreme Court in July 2012 posed a direct threat to the educational licensing market. These decisions underscored, among other things, that Canadian courts are to treat fair dealing, not as an exception, but as a “user’s right,” subject to a “large and liberal interpretation”; that the purposes of the putative user, not those of a commercial or non-commercial intermediary that actually makes the copy and supplies it to the user, are of primary relevance in determining whether a dealing is fair; and, that factors such as the availability of a license to make the use, and even the overall impact of widespread unlicensed use on the actual or potential markets for the work, carry much less weight in Canadian law than they do in U.S. fair use jurisprudence.

Canada has gone considerably farther than the US, viewing fair dealing