Wednesday, April 16, 2014

friends of the court

Authors Around the World Tell Google to Step Back

I'm sure it's felt at times like a lonely fight for the US Authors Guild as they persevere in their lawsuit against Google, Inc. The AG launched its action against the global search leader back in 2005, citing the works of a small number of American authors (including the great Jim Bouton, baseballer turned author) "and on behalf of all others similarly situated."

After all, in an increasingly borderless world, Google's wholesale appropriation - sorry, alleged wholesale appropriation - of millions of books in copyright would surely, eventually, affect the rights of all authors, no matter their nationality. But this fight is being fought on American turf, so the valiant little Authors Guild is stepping into the ring for all of us, and against an opponent the size of a small planet. Last week, the AG filed an appeal brief to the US Court of Appeals for the Second Circuit Court in New York - an appeal being necessary because, somehow, the Second Circuit previously found that the unpermitted, uncompensated copying of millions of complete, in-copyright works by a huge for-profit corporation with an eye on increasing their overall profitability was somehow a "fair use." That ruling came down last fall, and the head-shaking among professional creators hasn't stopped since.*

And so, the rest of the world has stepped up to support the AG's appeal. This week, no fewer than 8 amicus briefs were filed with the court declaring the original ruling unacceptable.Two of those briefs included participation from The Writers' Union of Canada. Longtime TWUC members Margaret Atwood, Lawrence Hill and Yann Martel joined a brief prepared on behalf of 17 of the world's most beloved authors. As a founding member of the International Authors Forum, TWUC itself is represented in the IAF's amicus brief before the court.

Some highlights:

"In exchange for access to books for copying — which the universities were not authorized to give — Google distributed to the universities digital copies of all the books copied from their collections — which Google was not authorized to do. The result of this transaction was the copying of over 20 million books without the permission of any copyright owner..." (Gladwell, et al) 
"This Court should not fall victim to Google’s attempt to avoid the limits of the law by presenting the broader “Books Program” as a fait accompli that is too big to fail. No example of fair use allows the degree of copying undertaken by Google." (Gladwell, et al) 
"...the issue comes down to this: an author asked about why he wrote what he did may give many answers. He may say that it was a labor of love. He may say that it was to make a living. He may say many things. But what he will not say is that he wrote his book so it could be subsumed into a corporate meta-database optimized for searching." (IAF) 
"The mere fact that Google’s infringement scheme is clever should not make it permissible under the law." (IAF)

Thanks to all around the world who continue to fight the good fight on this one, and special thanks to our friends in New York. 

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*In case anyone's wondering, there is historical precedent for head-shakingly bizarre rulings coming from New York courts. In 1883, New York State passed a law aimed at stopping cigar-making corporations from  using labor situated in grossly unsanitary tenement housing. The companies brought suit against the State and eventually won when the court declared "the legislation did not constitute a legitimate use of the state's police power to regulate behavior detrimental to the public welfare for tobacco was in no way 'injurious to the public health.' On the contrary, it was 'a disinfectant and a prophylactic.'" (quoted from The Bully Pulpit, by Doris Kearns Goodwin)

Wednesday, March 26, 2014

Canadian University Degrees Now Free!

I posted earlier about a writer protest at the University of Toronto. Here is the video from that very cold day.

... and from the YouTube page:

Many Canadian colleges and universities are copying and using massive amounts of published work without paying for it or even informing the writers and publishers. The Writers' Union of Canada (TWUC) and the Professional Writers Association of Canada (PWAC) wondered how those schools would feel if their work was copied and given away for free, so we went to the University of Toronto and handed out "free" copies of university degrees. It turns out, students love getting free degrees, but universities don't like it so much when writers give away "education".

On January 24th, 2014, in -35C wind-chill, a small group of writers documented the "Free Degrees" protest.

Many thanks to our partner organizations, the League of Canadian Poets (LCP), The Playwrights Guild of Canada (PGC) and the Canadian Society of Children's Authors, Illustrators and Performers (CANSCAIP).

Please share the link to this video as widely as you can - it's free!

For more information about the dramatic expansion of unpermitted copying at Canadian universities and colleges, check out these links on The Writers' Union of Canada's website:

A Fair and Better Way Forward

It's Time to Talk About Fair Dealing

Quill & Quire Covers TWUC Protest of UBC Policy

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Thursday, March 13, 2014

learning how to NOT get along

People often ask me why I get involved in confrontational tactics around copyright. Why do I go to meetings to which I'm not invited? Why do I organize light-hearted, yet serious protests on very cold campuses? Why don't I just sit down with educators and talk about this stuff? Well, here's an answer to those questions.

I do talk to students, teachers and librarians all the time about my own personal copyright concerns, and the copyright concerns of my constituency. In the past year, I've given many talks and presentations on the subject in classrooms, and I have more presentations scheduled soon. Often when I'm talking to these folks we disagree on small points. Mostly, we agree on the main points: 

  • Students need affordable materials (and affordable education in general); 
  • teachers need ease of access; 
  • library professionals need flexibility of use within a constrained budget; 
  • writers and publishers need to be paid fairly for their work and property. 

In my experience, everyone agrees with these starting points, and everyone is willing to keep talking once those points are established. Everyone, that is, except the folks who actually make the ultimate decisions about copying in schools and on campuses.

Students, teachers, writers and library workers can chat all we want about this stuff, but if the budget- and policy-makers refuse to even come to the table for a talk, there's little to no point in the rest of us reaching a consensus position.

As a member of the Canadian Copyright Institute (CCI), The Writers' Union of Canada (TWUC) recently participated in the publication of A Fair and Better Way Forward. The CCI is a decades old cooperative group representing, essentially, the entire Canadian writing and publishing sector on matters of copyright. TWUC has loaded A Fair and Better Way Forward on its website, along with the CCI's recent public release.

A Fair and Better Way Forward is a position paper - a fair-minded analysis of recent changes to the Copyright Act. It contains, I believe, all of the consensus starting points I mentioned. It also suggests that certain overly broad interpretations of copyright changes have led to a damaging expansion of industrial-scale copying, without payment, in schools and on campuses across the country, and that such uncompensated use is unsustainable.

At the end of 2013, CCI sent their paper to provincial Ministries of Education, the heads of all post-secondary administrations and all relevant educational organizations in Canada, with an invitation to meet and discuss the issues. To date, no organization or administration has agreed to talk. 

The invitation remains open. 

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Friday, February 28, 2014

is copy culture destroying the core values of our education system?

w(h)ither education?

I have many friends (and family members) who work in the academy, and I'm aware how painful and oversimplified conversations around "what's wrong with our education system, anyway?" can be, especially when it looks like there's a call to take sides and lay blame. It's not my intention to minimize the complexity of the issues that bring us to where we are today. That said, I can't ignore my own personal experience over the last 15 years or so in dealing with an education sector that, in my opinion, is drifting further and further from its mission and values.

On this blog, I've been highly critical of free-culture theory and the copy culture that has arisen with the digital age. My animosity to these trends flows quite naturally from my love of, and vested interest in, writing and publishing as a profession. I don't think I've ever hidden that bias. Nevertheless, I think some prominent segments of the education sector have a lot to answer for around the free culture attack on copyright.

Just today I was reading an academic blog that suggested anthology publishing might soon die, "made unprofitable by recent changes to Canadian copyright law and the increasing competition of coursepacks." Never before have I seen an academic so openly characterize photocopied or scanned coursepack production as "competition" for traditional publishing. That the academic in question is also a professional writer explains the recognition. It needs to be pointed out such "competition" is on a seriously tilted playing field. Traditional publishing actually pays its writers for their work, whereas recent overbroad interpretations of copyright changes in Canada are looking to gift coursepack compilers with as much free content as they can stuff between their bindings.

Similarly, I was recently directed to an online issue of Education Forum, the house organ of the Ontario Secondary School Teacher's Federation. All in one issue, we see a celebration of the Ontario Teacher's Pension Plan, which has "the highest investment return among 328 pension funds in the world" - look how rich we are! - an analysis of how student tuition fees in Ontario have tripled in the last 23 years, threatening to make post-secondary education the exclusive realm of the privileged - look how rich we expect students to be! -  and a triumphal celebration of recent changes to copyright law in Canada that instructs teachers how much professionally produced writing they can copy without payment or permission - look how much stuff we get for free!

The fair dealing article in Education Forum includes a dramatic warning to teachers that the writing and publishing sector may sue them "in the hopes of recouping the perceived losses." How can you dismiss as "perceived"  a loss you've just yourself described in gleeful detail? You can't make this stuff up, folks.

I'm not suggesting copy- and free-culture theory is either the beginning or the end of a disturbing mission drift in education. I do, however, think it plays a role.

Why Shouldn't Bobby Cheat?

Recently, the CBC has taken a long hard look at the issue of academic honesty at Canadian universities. In reports on the website, it was revealed that over 7,000 university students across Canada were disciplined for some form of cheating, from outright plagiarism (which made up over half the offenses), to buying ready-made academic papers, to looking at cheat notes during exams.

7,000 is a huge number, of course. But worse than this revelation is the suggestion by CBC researchers that this number is eclipsed by the number of students who were not caught and therefore not punished for academic dishonesty. While data supplied by participating universities showed about 1% of students actually punished for cheating, a separate survey of Canadian students revealed a whopping 50% willing to admit off the record that they have engaged in some form of cheating at school. Depressingly, CBC quotes an anonymous student with designs on law school and a career in Canadian law:
“I'd challenge anyone who can say that they haven't broken the law... So for me to have cheated on an exam to get ahead in life, I think it's wrong, but I don't think it's the worst thing that could be done.”
Depressing, yes, but hardly surprising to anyone who's been watching recent developments in Canadian higher education.

As I've tried to point out many times on this blog, I believe the Canadian academy is infected by a virulent strain of copy culture that at best provides cover for such academic line-crossing - by studiously ignoring and/or blurring important lines. At worst, the theoretical expansion of copy culture is, in my opinion, tacit approval for the kind of logic that convinces a future law student that breaking the law is not "the worst thing that could be done."

Portrait of an academic culture from one man's perspective

On June 26, 2012, as ill-conceived changes to Canada's Copyright Act rolled inevitably toward approval in Parliament, I sat in a committee room in front of Canada's Senate and respectfully asked for sober second thought and consideration for what I saw as very real economic damage to Canada's cultural sector as a result of new educational exceptions added to the Act. At the time, I was employed by the Ontario Arts Council, but as I made clear in my testimony I was there representing myself as a professional writer.

Seated beside me was legal counsel for the Council of Ministers of Education of Canada (CMEC), an intergovernmental group advocating broad new educational freedoms under copyright. When asked by a concerned Senator about suggestions of economic damage to Canada's cultural sector, with specific reference to collective licensing, CMEC's legal counsel said this:
"There's been a great deal of, um - and I don't want to use a pejorative word - rhetoric and numbers thrown around about losses that are going to result from [this change to the Copyright Act]. None of those numbers have any empirical basis. The claims are very easy to make, and in my view and in the view of my clients, the Ministers of Education, are unfounded. For example, the reference to the fact that universities and colleges have withdrawn from the Access Copyright system because of Bill C-11 is patently false."
This is a quote from testimony on the public record that can be accessed, by anyone, at this video link. It comes at about the 1 hour 34 minute mark. In an earlier remark, the same witness suggested that provincial education acquisition budgets "will not change." I'm not sure how anyone could comfortably make such a prediction, but okay.

Has there been empirical damage to the cultural economy in Canada since the passage of C-11?

Of course there has. Access Copyright has taken expensive legal action because, unless it defends its licensing territory, Canada's writers and publishers will continue to lose tens of millions of dollars of license royalties every year universities, colleges and K-12 schools continue to claim they do not have to pay collective license royalties for the massive, industrial scale copying that takes place in the name of education. These are the same "perceived losses" referenced in the Education Forum article above.

I hear from professional writers every single day, and they are telling me that their royalty cheques are decreasing precipitously, sometimes disappearing altogether. What else can anyone call this situation but economic damage? Writers are "perceiving" these losses because these losses are coming from their personal budgets.

Have provincial educational acquisition budgets changed? Not sure because it's hard to tease out acquisitions from the overall budgets, but between 2012 and 2013, immediately following the passage of C-11, Nova Scotia's overall education budget looks to have seen a $13 million dollar reduction in expenses. I chose Nova Scotia because that province's Education Minister, Ramona Jennex, was referenced several times before the Senate.

What is Access Copyright's licensing territory? Well, it looks an awful lot like the territory now claimed by a large number of Canadian universities, such as the University of British Columbia (in their Fair Dealing Requirements for UBC Faculty and Staff), specifically the collective license requires payment for the copying of up to 10% of a work for inclusion in a course pack, a use now claimed by schools under their interpretation of fair dealing. To be clear, UBC references new provisions in the Copyright Act provided by C-11 as a factor in their decision to expand how much they claim.

Other damage:

Oxford University Press Canada has recently ceased operation of its Canadian K-12 educational publishing program, citing Canada's copyright climate as the reason behind its decision. This means fewer jobs for those who create Canada-specific educational materials, and,of course,fewer materials overall.

The huge Association of American Publishers came out this month with serious warnings about Canada's copyright climate:

Under the now-pervasive misconception that all copying for educational use is now permitted without rights-holder permission or compensation, Canadian schools have defected en masse from longstanding licenses through Access Copyright, the country’s not-for-profit content licensing service provider. This misconception has also stymied nascent efforts by Access Copyright and its affiliated creators and publishers to develop a robust licensing service for digital educational materials to better serve the country’s students. Publishers are already seeing contraction of direct sales of educational materials in Canada, despite its role as a long-established, well-functioning licensing market for the US.

Okay, I've stated a bunch of facts, verifiable on an "empirical basis." You decide for yourself what these facts suggest about the current state of education in our country.

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Friday, January 31, 2014

get yer free degrees, right here!

(from right to left: Harry Thurston, award-winning science author and incoming Chair of TWUC, Dorris Heffron, novelist and Chair of TWUC, Sandy Crawley, musician, actor, writer and executive director of PWAC)

Through my day job at The Writers' Union of Canada (TWUC), I helped to organize a small protest at the University of Toronto last Friday, taking aim at U of T's (and several other large Canadian universities') new guidelines for how students and professors can copy published work on campus. As I detailed in the last posting here, U of T is attempting to save less than 1% of their annual surplus (which topped out at, let me see, $173 million in 2013) by not paying copyright clearance (through collective licensing) for entire short stories, entire book chapters and up to 10% of any published work.

Let's put this in easily understood terms:

U of T's guidelines mean that a professor teaching "the art of the Canadian short story" to hundreds, even thousands of tuition-paying students (U of T collected close to a billion dollars in tuition and fees from students last year) could go to the library, photocopy one story from twenty different Canadian collections written by twenty different economically struggling writers, squish those stories into the "U of T Canadian Short Story Reader," print off hundreds, thousands, tens of thousands of copies of that course pack collection, sell it to her students over the course of years WITHOUT ever asking permission of the writers, WITHOUT even informing the writers, and certainly WITHOUT paying the writers, as Al Purdy would say, "a goddam thing."

To show just how ridiculously unfair such a policy is, and how damaging it will inevitably be to both our collective culture AND the education system that depends on there being a culture, members of TWUC's National Executive, writers, and staff from other writer organizations (thanks to the Professional Writers Association of Canada (PWAC) for sending their talented ED, Sandy Crawley!) handed out free copies of university degrees outside U of T's main library, the John P. Robarts Research Library. If our work is up for grabs and free to copy and distribute, then perhaps everyone's work should be, including the formerly exclusive work of conferring educational qualifications on folks. The degree we copied was my own Master's Degree from the University of Toronto, for which I paid thousands of dollars in tuition (like a sucker, apparently).

We took photos of the action (see above), and we had a professional videographer recording everything (stay tuned). It was -17C before factoring in windchill that morning, and the sidewalk outside Robarts is one of the windiest spots in Toronto (insert "academic bluster" joke). And, we got the reaction we were looking for - students laughed at the idea of free anything, but gladly accepted the copies, and we had several unnamed profs stop to register their support for our action. At one point, we moved inside the library and started quietly distributing degrees and info sheets to students at the library computers. Within minutes, we were kicked out by security. All hail free thought.

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The protest was covered by Quill & Quire and columnist Joe Fiorito at the Toronto Star.