To Scan or Not to Scan
In 2012, the Copyright Modernization Act came into force, adding “education” to the list of fair dealing purposes that do not infringe copyright. Concordia University’s Centre for Expanded Poetics [the “Centre”] appears to have either relied on the expanded definition of fair dealing, or on their licence agreement with a copyright collective; since as early as 2015, the Centre has scanned books written by poets and made these texts available online for students and the general public to access for free. This activity went unnoticed until earlier this year, when the Writers’ Union of Canada and The Globe and Mail contacted the publishers of the texts reproduced online and asked if the Centre had requested their permission. They hadn’t. This prompted the publishers to complain to the Centre and the materials were promptly taken off the web; the Centre’s Ddirector, Nathan Brown, admitted that the Centre had made a mistake.
In her coverage of the Centre’s activities for The Globe and Mail, Ccultural Jjournalist Kate Taylor blames the “vaguely worded, broad-brush education exemption” for the University’s indiscretions. She warns of “widespread unlicensed copying in the Canadian education sector from universities…right down to public schools.”. While the fair dealing purpose of “education” may seem broad at first glance, the education purpose exists within the larger context of a two-step test for fair dealing, established in CCH Canadian Ltd v Law Society of Upper Canada. First, the purpose of the dealing must fall within one of the allowable purposes under the Copyright Act. If a dealing serves any of the allowable purposes, like education, that does not immediately deem the dealing fair. Second, the court must look at several factors to conclude the dealing is fair.
In a judgment delivered on January 27, 2017, concerning the tariffs paid by elementary and secondary schools to Access Copyright, the Federal Court of Appeal held that the second step of the test established in CCH is meant to incorporate the following:
To fulfill its mandate, the [Copyright] Board had to balance the public interest in compensating the copyright owners for the taking of substantial parts of their work against the public interest in giving certain users the right to reproduce such parts for certain purposes including education and private study.
In balancing these interests, the fairness test shall address the following factors as mentioned in CCH and the more recent decision of the Federal Court of Appeal: the purpose, character and amount of the dealing; alternatives to the dealing; the nature of the work, and the effect of the dealing on the work. The two-step test to determine whether a dealing is fair prevents inappropriate reliance on the fair dealing exception for education.
Dr. Michael Geist is the Canada Research Chair in Internet and E-Commerce Law at the University of Ottawa. In a post on his blog, Geist contests Taylor’s assertion that the fair dealing purpose of education is a “loophole”, and sees the law surrounding the fair dealing exception for education as not uncertain. Rather than uncertainty in the law, Geist sees uncertainty in the scope of collective copyright licences. Taylor does not mention Concordia’s use of Copibec service Get it Now. Get It Now is a program created by the Copyright Clearance Centre in the United States and offered to Quebec institutions through Copibec. For a “reasonable cost”, Get it Now provides university libraries immediate, authorized access to content from publishers. According to Copibec’s website, most of the content accessed “can be copied under Copibec licences issued to the education sector.”. Concordia happens to be the first Quebec University to pay for this service.
Geist highlights the issueconcerns with licenses issued by copyright collectives like Copibec, as these collectives “frequently suggest that their licence permits widespread copying, but the reality is that their licences are fairly narrow in scope.”. Those worried about the exploitation of works by modest Canadian poets should focus efforts on clarifying contractual issues surrounding the scope of licences rather than attacking the effectiveness of Canadian copyright law. Through negotiation, authors and their agents, copyright collectives, and educational institutions can work together to arrive at licence agreements that both protect the rights of Canadian authors and promote the exploration of their works.
Taylor closes her article by suggesting that when reviewing the Copyright Act this year Parliament must “plug that education loophole for good before somebody tries to drive a $10,000 book scanner right through it.”. Taylor is referring to the price of a book scanner used by Brown in a photograph on the Centre for Expanded Poetics’ Facebook page. Taylor contrasts the price of the scanner with the modest price of the books that were reproduced on the Centre’s website; however, the scanner itself is not the enemy.
Prior to attending law school I worked in the digitization department of my undergraduate school’s library. My job entailed scanning various materials – books, periodicals, posters, magazines, many from the late nineteenth century – to be either uploaded onto the library’s digital archival space or sent to academics and students directly over email. My long-term project involved scanning hundreds of pages from early volumes of a literary journal published in 1878. I used a scanner similar to the scanner used by Brown. The work is time intensive, especially when dealing with delicate materials, as each page needs to be turned, photographed, and edited for clarity. I would run the scanned images through optical character recognition (OCR) software to allow the materials to be searchable.
Digitizing materials allows fragile hard copies to be protected while their content is disseminated. The pages of the journals I scanned at the library were very delicate and the library risked damaging the materials each time physical copies were requested. Digitizing the journals protected them from contact with the greasy and dirty hands of students and faculty. Dirt and oils can discolour and accelerate deterioration. As Geist notes in a follow-up blog post, “Yes We Scan: Why Concordia Should not Shelve Its Book Scanner”, the digitization and online publication of Canadian works in the public domain is beneficial for the preservation and promotion of Canadian culture. Additionally, scanning books and using OCR software allows for works to be fully searchable. This aids the research process and further promotes the dissemination of knowledge. In the Concordia situation, the scanner and its high price-tag should not be seen as the enemy, as there are valid, legal reasons for institutions to purchase and use book scanners.
The more complex question arises in the context of using digital means to make copyrighted protected works widely available. Geist distinguishes the two issues that arise in digitization of works protected by copyright: first, the digitization of the works and second, the public availability of those works. The digitization of works is likely to constitute fair dealing, as one of the purposes behind the Copyright Modernization Act was to encourage the use of digital technologies for the allowable purposes of research and education: “Canada’s ability to participate in a knowledge economy driven by innovation and network connectivity is fostered by encouraging the use of digital technologies for research and education”. Geist agrees that digitization itself would fall under the allowable “research” purpose, therefore not engaging the alleged scanner-sized “loophole” created by the addition of the “education” purpose.
While the digitization of materials may be considered fair dealing under our current laws, reproducing texts online for free is not, hence why Concordia was quick to correct their mistake and take down the books of poetry they had made widely available online without password protected access. Amending legislation and removing book scanners altogether are not appropriate solutions to such mistakes. To avoid such missteps in the future, institutions, publishers and authors should revisit licensing agreements and collaborate to ensure the protection of both the economic rights of creators and the “knowledge economy”.
Windsor Law Student, 2L