Chief Publishing Lobbyist Maria Pallante Claims Copyright Is 'Under Assault' At Annual Meeting

from the unfortunately-not dept

The Association of American Publishers, like most industry lobbying groups, has a reputation for jealously guarding industry profit-making, no matter the larger implications of their doing so. In the past, the AAP has advocated for secret copyright treaties designed specifically to protect the publishing industry, getting Google to make its Google Library project far less useful, and has sued the Internet Archive's digital library program in the middle of the COVID-19 pandemic. Again, the AAP is a lobbying group and we should expect them in some respects to behave like one, but it's important to tease out what they're lobbying for and against and whether its interests are shared with the interests of the general public. Spoiler alert: they absolutely are not.

So, when the AAP held its recent annual meeting and devoted a portion of this 90-minute affair to the importance of copyright, that would typically be met with something of a yawn and a hand-wave. And when it got several mediocre persons to also speak at that meeting in part to rail against the omni-present threat of "big tech", well, most of us probably just kept yawning.

As part of their remarks, Brian Napack, AAP chair and CEO of John Wiley, and Maria Pallante, CEO of AAP, made clear that protecting copyright remains the top priority for the association.

Minnesota Senator Amy Klobuchar voiced her concerns over the power of Big Tech in accepting the AAP’s 2021 Award for Distinguished Public Service. Keynote speaker Don Lemon (CNN host and author of This Is the Fire), urged publishers to publish more authors of color, while closing keynoter Brad Stone focused his remarks on Amazon, the subject of two of his books, The Everything Store and the recently released Amazon Unbound.

If Senator Klobuchar wants to join the likes of Donald Trump in complaining vaguely about "big tech", well, I guess I'll just have to somehow manage to keep my eyes dry. The inclusion of divisive cable news commentators is certainly a choice to be made, I suppose, as is the inclusion of a biographer for Amazon and Jeff Bezos who isn't always super kind to the company or its leader. That Stone's books can be bought on Amazon is at least a partial rebuttal of all the "big tech" complaining, but I digress.

Instead, what is most notable from this annual meeting is the CEO of the AAP, Maria Pallante, proclaiming to the audience that the association would do everything possible to beat back the "assault" in progress on America's copyright laws.

To make sure that publishing remains a good business to be in, AAP’s job, Pallante said, “is to ensure that you can compete fairly in the modern marketplace.” Regrettably, she continued, “there are actors who seek to weaken your legal protections in order to advance their business interests, whether that interest is in bloating the fair use doctrine to illogical boundaries or, more blatantly, appropriating and monetizing your works without permission.”

In Pallante’s view, the exclusive rights delineated in the Copyright Act are under assault, as is an effective enforcement framework, and she said the DMCA, which governs how infringing content on websites can be taken down, “is badly in need of updating.” She also lamented the lack of a competitive marketplace in which authors’ works can be discovered and publishers can compete “without unfair control or manipulation from dominant tech giants.”

Think about the claims in that statement. "There are actors that seek to weaken your legal protections in order to advance their business interests" is a hell of a take from the CEO of a lobbying group that literally does that exact thing to the public. More copyright laws that strip away the public's rights, stricter enforcement with less legal protections for the accused among the public, diminishing the role of fair use: literally all of these things Pallante is advocating for are well-described as an actor seeking to weaken your legal protections to advance its business interests. Pallante is literally the villain she's complaining about.

As for copyright being "under assault", well, I can only assume it's under assault in the same fashion that I'm constantly told that Christmas is under assault, by which I mean it only expands, becomes more arduous and annoying, is omni-present, and is tied strictly to commercial interests.

Pallante goes on to suggest that the AAP's lawsuit against the Internet Archive's library platform had better be victorious... or else basically all copyright protections go away.

In a final point about copyright, Pallante said that the lawsuit the association filed a year ago against the Internet Archive for copying 1.3 million scans of books is still in discovery, but said the IA’s activities “are well outside the boundaries of both the law and copyright commerce, and ultimately pose an existential threat to the copyright framework on which authors and publishers rely.”

If you can read that and not burst out laughing, you have a stronger constitution than I do.

Now, if Pallante's name sounds at all familiar to you, it's because she previously ran America's Copyright Office. Now, I will say this much: I will happily take Pallante's doomsday for copyright claims more seriously than I have in this post if she can tell me what happened to the $11 million that the Copyright Office, under her leadership, managed to spend on a computer system that never materialized, was supposed to cost a tenth of that spend, and was the subject of several lies in the Copyright Office's reports to Congress.

Otherwise, I'll just note that copyright law in this country is so laughably bloated that it deserves an assault, but isn't actually on the receiving end of one.

Filed Under: big tech, copyright, fair use, maria pallante, publishing, user rights
Companies: aap, association of american publishers

Publishers And Authors Misguided Freakout Over Internet Archive's Decision To Enable More Digital Book Checkouts During A Pandemic

from the get-over-it dept

It's been said many times over that if libraries did not currently exist, there's no way that publishers would allow them to come into existence today. Libraries are, in fact, a lovely and important artifact of a pre-copyright time when we actually valued knowledge sharing, rather than locking up knowledge behind a paywall. Last week, the Internet Archive announced what it's calling a National Emergency Library -- a very useful and sensible offering, as we'll explain below. However, publishers and their various organizations freaked out (leading some authors to freak out as well). The freak out is not intellectually honest or consistent, but we'll get there.

As you may or may not know, for a while now, the Internet Archive and many other libraries have been using a system called Controlled Digital Lending, which was put together to enable digital checkouts of books for which there may not be any ebooks available. Basically, the Archive helped a bunch of libraries scan a ton of books, and the libraries lend them out just as if they were lending out regular books. They keep the physical copy on the shelf and will not lend out more copies of the digital book than the physical copies they hold -- basically doing exactly what a library does. There are strong arguments for why this is clearly legal. Scanning a book you own is legal. Lending out books is legal.

Of course, when CDL was first announced, publishers (mainly) and The Authors Guild (which, contrary to its name, tends to be a front group for publishers, rather than authors) completely lost their shit and whined about how this was piracy. Remember, the Authors Guild has already tried suing libraries for scanning books and failed miserably. Challenging this effort at lending scans of books would also likely fail.

One important thing to note: the scans of books that are part of the CDL effort are not great. They are images of actual book pages, and not anything like ebooks that are designed to be read nicely on a Kindle or whatnot. No one would choose a CDL book over a regular ebook if given the choice, because the experience is not nearly as good.

The big news with the National Emergency Library is basically the removal of waitlists for checking out these books. They still have DRM and you still only can access the books for two weeks, but unlike with CDL where there was a 1 to 1 ratio of which books the Internet Archive had a physical copy of and those which it would lend out, the NEL removed that limitation and made it so that more people could access those books at once. The reasoning here is sound: in the midst of this pandemic, most physical libraries are closed, so most people literally cannot get physical books. They are sitting there unlendable. To help deal with that, the Internet Archive removed the waitlists on the books it had scanned. As the Archive explained, it focused heavily on making sure books with no ebook-availability (and educational books) were available:

The Internet Archive has focused our collecting on books published between the 1920s and early 2000s, the vast majority of which don’t have a commercially available ebook. Our collection priorities have focused on the broad range of library books to support education and scholarship and have not focused on the latest best sellers that would be featured in a bookstore.

Further, there are approximately 650 million books in public libraries that are locked away and inaccessible during closures related to COVID-19. Many of these are print books that don’t have an ebook equivalent except for the version we’ve scanned. For those books, the only way for a patron to access them while their library is closed is through our scanned copy.

But, of course, almost immediately after this was announced the very same groups that already insisted that CDL was "piracy" jumped on this to scream from the heavens about "piracy" in making these books available to people stuck at home. The Authors Guild flipped out:

IA has no rights whatsoever to these books, much less to give them away indiscriminately without consent of the publisher or author. We are shocked that the Internet Archive would use the Covid-19 epidemic as an excuse to push copyright law further out to the edges, and in doing so, harm authors, many of whom are already struggling.

This is false. The Internet Archive has every right to those books -- all of which were purchased or donated. And the Authors Guild already failed in its lawsuit saying that the books couldn't be scanned, so it's just making stuff up now to get even angrier than it was before. There is no more "harm" to authors than there is during the days when libraries are open and people could (as per normal) borrow these books. Again, the real thing the Authors Guild hates here is libraries.

The Association of American Publishers (run by fired former Copyright Office boss Maria Pallante) also freaked out:

“It is the height of hypocrisy that the Internet Archive is choosing this moment – when lives, livelihoods and the economy are all in jeopardy – to make a cynical play to undermine copyright, and all the scientific, creative, and economic opportunity that it supports.”

No, it's the height of hypocrisy for publishers to attack a basic thing that libraries have done for centuries: lending out books that they own for limited periods of time to support the spread of knowledge -- especially given how stingy publishers themselves have been in embracing ebooks and easier access to knowledge.

The National Writers Union also insisted that rather than doing this, we should be spending taxpayer funds on repurchasing all these books that have already been purchased? That's the best I can figure out from this argument.

The argument is that students need e-books while they are staying home. But that’s an argument for spending public funds to purchase or license those resources for public use — not putting the burden of providing educational materials for free on writers, illustrators, and photographers. Authors also need to eat and pay rent during this crisis.

Again, that argument makes no sense. Because that same argument applies to any library copy of a book.

For what it's worth, the Internet Archive lets any author who is freaked out about this digital library lending out their books to opt-out of the system. And while I'm sure some authors will argue that opting out shouldn't be on them, that's again silly. The system works the way libraries work. Should authors also have to agree before a library can lend their book?

This is all a bunch of nonsense. As we've highlighted a few times in recent weeks, the pandemic has really highlighted just how insane copyright has become and how unmoored it is from its original intent of helping to further the spread of knowledge. Instead, it's used as a giant paywall, to lock up that spread. I know that people have bought into the ever growing idea of permission culture, but take a step back and think about how totally messed up it is that people might possibly have access to the world's knowledge, while being stuck in their homes during a pandemic... and to have people start yelling "but you don't have permission to do that." From an outsider's perspective, not brought up in the myth of permission-culture, the whole concept would sound ridiculous.

Filed Under: books, controlled digital lending, copyright, culture, digital lending, ebooks, libraries, national emergency library, pandemic, scanning, sharing knowledge
Companies: association of american publishers, authors guild, internet archive

Publishing Lobbyists Suck Up To Trump With Lies About Copyright, Ask Him To Kill DMCA Safe Harbors

from the because-of-course dept

With the Donald Trump administration fully taking shape, lobbyists for basically every industry (yes, including tech and internet companies) are groveling before the President with whatever their pet projects are. The latest to put together a letter is the Association of American Publishers, via its top lobbyist Allan Adler. You may recall Adler from a few years ago, in which he explained why his organization opposed a copyright treaty for the blind, noting that his members were upset about the idea of ever including user rights in international treaties, and only wanted to see international agreements that focused on stronger copyright protections. So, you get a sense of where he's coming from.

The letter to Trump is pretty much what you'd expect from a lobbyist for a bunch of legacy publishers wedded to an outdated business model, but there were a few things I wanted to call out. First, Adler and the AAP blatantly misrepresent the Constitutional copyright clause to pretend it says something quite different than it really says or mean.

In the U.S., publishers continue investing in innovative technologies and business models to support the creation and dissemination of works of original expression, by novice as well as celebrated authors. Their ability to get those works into the marketplace, without interference from government and with the key assets of their exclusive rights in such works acknowledged as legally-safeguarded intellectual property, is protected by the First Amendment’s guarantee of freedom of speech and the Constitution’s clear recognition that “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” will “Promote the Progress of Science and useful Arts.” (Article 1, Section 8, Clause 8)

First of all, it's a neat trick to claim that copyright is "without interference from government." The entire setup of a copyright system is a government interference with the free market. Now, you can argue that that interference is necessary to prevent free-riding, but to state that copyright is somehow a free market concept is just wrong.

But, more importantly, notice the Constitutional explanation, which blatantly misrepresents the actual Constitution. The trick is played by the insertion of the single word "will" between "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" and "Promote the Progress of Science and useful Arts." Nowhere in the Constitution does it say that such protections will promote the progress. Instead, it gives the power to Congress (not the President, I should note), to set up such monopolies if it is determined by Congress to promote the progress. To flip that is dishonest. It falsely suggests that any exclusive rights to authors and inventors automatically promotes the progress of science and the useful arts. And yet, we have 200+ years of examples of how that's not true -- including more than a few cases in which Mr. Adler's members have proactively blocked and harmed the progress of science through abuse of monopoly powers.

To pretend that the Constitutional clause on copyrights and patents means that any and all monopolies are good is ridiculous and misleading.

Next up, Adler falsely compares copyright to trademark... and (of course) tries to flatter Trump in the process:

Surely you understand the role that meaningful intellectual property rights play in American entrepreneurial success, both at home and in global markets, as the ability to burnish the Trump brand through trademark registration and enforcement has helped your diverse enterprises to grow and thrive world-wide. Consistent with that understanding, your businesses have been active at the U.S. Trademark Office and in the courts when necessary to exercise your statutory rights to prevent infringement or dilution of your brand.

Whether operating on a commercial or non-profit basis, publishers’ reliance on their ability to secure adequate copyright protection and effective copyright enforcement, under both federal law and a variety of international agreements, is as critical to their success as the maintenance of trademark protection has been for your business endeavors. It is essential to their ability to publish in the U.S., where readers of all ages, origins and interests can relish discovering and digesting works that entertain or inform them while enriching the cultural, historical, political, and scientific record of American society.

Except, of course, that trademark and copyright are two totally different legal doctrines, and have only been merged into the mythical "intellectual property" bucket by lawyers trying to increase their billing rates. Copyright, as noted above, comes from a specific clause in the Constitution and is about promoting progress. Trademark comes from commercial codes and was, initially, a form of consumer protection against allowing one company to appropriate the brand of another for the purpose of confusing consumers. That's a very different ancestry and purpose of the law, and lumping them together is silly. The way both work is different. The way they're enforced is different. And their purpose is different.

Finally, Adler and the publishers join with the RIAA and others in asking Trump to dismantle key protections built into copyright law that have enabled the internet to grow and to thrive. Because the publishers don't seem to like competition very much.

Provisions of the Digital Millennium Copyright Act (“DMCA”), which Congress enacted in 1998 to encourage online availability of popular copyrighted works while promoting a balance of interests and cooperation between copyright owners and Internet service providers in dealing with online infringement of such works, wildly succeeded in encouraging such availability. However, the relevant DMCA provisions do not achieve that intended balance and cooperation due to numerous instances of judicial misapplication and the unanticipated appearance of service provider business models that foster, exploit and profit from online infringement by their users while offering only token compliance with the law.

The current epidemic of online infringement harms public as well as private interests in the availability of such works, and the legal flaws that hamper the DMCA in its intended operation need to be fixed by our nation’s elected representatives.

Citation needed. The "epidemic" of online infringement is not as big as they're making it out to be, and this is from an industry that has regularly charged insane monopoly rents on things like textbooks and scientific journals. In fact, for them to be complaining about "judicial misapplication" when their industry has massively benefited from a ridiculous ruling that claimed that copy shops were violating copyright law -- which allowed course packs at universities to jump in price from around $30 to around $200 -- is simply crazy.

Yes, every industry is going to advocate for their own interests, but this constant lying and misrepresentation about copyright law to the incoming administration is getting pretty ridiculous. We truly have reached a post-fact society, and the lobbyists are going to exploit that as much as possible. It's only that much more ridiculous that it's coming from a representative of an industry that claims to be promoting knowledge and learning.

Filed Under: allan adler, constitution, copyright, dmca safe harbors, donald trump, publishers
Companies: association of american publishers

Publishers Association Sends Whiny Complaint Letter To Dean After Academic Librarian Discusses Sci-Hub

from the oh-grow-up dept

It's no secret that big publishing companies (especially academic publishing companies) really really dislike Sci-Hub. Sci-Hub, of course, is the quite interesting site that enables academics to access and share PDFs of published scientific research. We've written about it a bunch, including Elsevier's ridiculous legal crusade against the site, which has only served to act as a huge advertisement for the site. As we noted, using copyright to shut down Sci-Hub seemed to go entirely against the purpose of copyright, which was officially designed to promote "learning" and scientific knowledge.

Nonetheless, the publishers really, really hate it. But even so, it seems pretty ridiculous for the Association of American Publishers (AAP) to freak out so much about an academic librarian just mentioning Sci-Hub while on a panel discussion, that it would send an angry letter to that librarian's dean. But, that's exactly what AAP did, in complaining about comments by librarian Gabriel Gardner to his dean, Roman Kochan, at the University Library for California State University. The letter, signed by AAP President Thomas Allen seems to suggest that any moderately positive comment about Sci-Hub should be banished from any academic discussion:

I am disappointed to learn that a librarian from California State University, Long Beach, Gabriel Gardner, recently praised the notorious pirate site Sci-Hub and recommended that attendees at a session use the site. Mr. Gardner was a panelist at the American Library Association's session "Resource Sharing in Tomorrowland - a Panel Discussion About the Future ofinterlibrary Loan" at the association's annual conference in Orlando. On the panel he said, essentially, "Try it, you'll like it."

Sci-Hub has been enjoined from further operation as an unlawful enterprise that has committed mass theft of copyrighted material. Sci-Hub should not be equated with any legitimate interlibrary loan or open access publishing practices.

It goes on to whine about how horrible Sci-Hub is (yes, a tool for free access to scientific research and knowledge is being derided here...), and then whines about silly ideas like "academic freedom."

As a member of the California State University system it is surprising that a CSU Long Beach librarian would promote the activities of an adjudicated thief who has compromised university computer systems and databases worldwide.

Unfortunately, Sci-Hub supporters invoke academic freedom, freedom of speech, freedom of scientific inquiry, and encouraging universal access to the results of scientific research to justify the theft of intellectual property. Such rationalizations do not in my opinion justify providing public encouragement for unquestionably illegal activity to institutions and the scholarly communication system. I believe such public encouragement from one of your librarians is inconsistent with the university library's mission and its leadership in support of scientific research.

The recipient of the letter, Dean Roman Kochan, was, to put it mildly, not that impressed with Allen's letter, and notes that Allen seemed to be freaking out over absolutely nothing. In fact, Kochan notes that most of Gardner's comments about Sci-Hub were actually focused on its illegal nature. And, he points out, that Gardner's comments were related to an article that Gardner had co-written pointing to problems with this kind of crowdsourced research sharing.

Their article, "Fast and Furious (at Publishers): The Motivations behind Crowdsourced Research Sharing," is based on a survey of users of peer-to-peer research-sharing services on the frequency of, and the motivations behind, their use of these services. They conclude that these services "go beyond document delivery to the legal bedrock that is our current copyright and intellectual property systems." So, contrary to your allegations that the researchers provided "public encouragement" of services such as SciHub, their research points out the very real problems with this type of crowdsourcing.

[....]

Besides the legal cautions in the C&RL article, Mr. Gardner has been quoted on #icanhazPDF, and in the 2015 Conference Proceedings of the Association of College & Research Libraries as saying that such peer-to-peer sharing is "ethically dubious" and "often violate[s) commercial database terms-of-service (ToS) and/ or copyright." Specifically, regarding the ALA annual conference panel, "Resource Sharing in Tomorrowland a Panel Discussion about the Future of Interlibrary Loan," your paraphrase of Mr. Gardner's statements is taken very much out of context. If you listen to the recording of his presentation, he says that Sci-Hub's actions are "massive piracy" and "totally illegal." To an audience of librarians, he was suggesting that librarians need to try the service to see how easily Interlibrary Loan and authentication systems can be bypassed.

In other words, not only did Allen and AAP send a really stupid letter, they picked the exact wrong target. This does not speak well of the AAP and its willingness to understand even basic nuances.

Of course, now that Kochan has the AAP's attention, he figures it's probably not worth wasting, and goes on to point out the real problem: the fact that the publishers AAP represents are basically pricing everyone out of the market:

However, the larger issue here is that the academic publishing model has become unsustainable. Like many university libraries, the library budgets at California State University Long Beach and the California State University generally cannot sustain annual price increases of 3% to 10% by many of your organization's members. Journal subscription prices are a key part of the reason that extra-legal services, such as Sci-Hub flourish. As you know, the music industry and the movie industry have faced similar challenges. One substantial difference with scholarly journal publishing, however, is that the "artists," the scholars who conduct the research and write the articles, receive no monetary compensation. As the Copyright Clause of the U.S. Constitution states, the purpose of copyright is "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Rarely do AAP members give their authors such rights.

We would hope that AAP would want to be part of the solution to unsustainable academic publishing models. Instead of fighting legislation such as Fair Access to Science and Technology Research Act (FASTR), or criticizing researchers who are shining a light on a very real publishing dilemma, AAP could use its considerable clout to promote new scientific publishing models. After all, as AAP describes it, the organization's historic role is to "promote literacy, defend freedom of speech, advance scientific progress, and stimulate the intellectual and cultural discourse that is central to a healthy democratic society."

Bravo. Though it will almost certainly fall on deaf ears.

Still, what is it with organizations like the AAP so focused on "protecting" the way things used to be that they can't even bother to think about the way things are actually heading and how to adapt?

Filed Under: academic publishing, complaints, gabriel gardner, libraries, roman kochan, thomas allen
Companies: aap, association of american publishers, sci-hub

Treaty For The Blind Comes Into Force... But US Refuses To Ratify Because Publishers Association Hates Any User Rights

from the shameful dept

For many, many, many, many years, we've followed the rather crazy trials and tribulations of trying to get an international treaty signed to make it easier for the blind to access copyright-covered works (basically requiring countries to allow visually-impaired accessible versions to be reproduced and distributed). This is a treaty that people have tried to get in place for years and years and years, and it was blocked again and again -- often by legacy copyright industries who flat out refuse to support any kind of agreement that could be seen as strengthening user rights, which they see (ridiculously, and incorrectly) as chipping away at copyright. Amazingly, despite a last minute push by the MPAA and the Association of American Publishers, an agreement was reached and signed in 2013, called the Marrakesh Agreement. As we noted at the time, we fully expected the legacy copyright industries to refocus their efforts on blocking ratification in the US, and that's exactly what's happened.

Hell, it took almost three years for the White House to finally send over the treaty to the Senate for ratification. That happened back in February, and they sent it together with another copyright-related treaty, the very troubling Beijing Treaty that creates an entirely new form of copyright for performers. So far, the Senate has moved on neither issue. However, to have the Marrakesh Treaty go into effect, it needed 20 countries to ratify it. And while the US has sat still, a few weeks ago, Canada became the 20th country to complete the ratification process. That means the agreement officially goes into effect on September 30th of this year. As the EFF noted:

That’s another significant step for a treaty that has already made some important breakthroughs as the first international treaty focused exclusively on the rights of users of copyrighted material. Typically, if user’s rights are considered at all, they’re relegated to a section on “limitations and exceptions” or even as non-binding introductory text. In the Marrakesh Agreement, they are front and center.

That post also noted that it should be a no brainer for the US to ratify this:

United States law is already compliant with Marrakesh, but the government has not yet ratified the agreement. To do so requires a two-thirds vote from the Senate, and then a formal ratification from the President. Even at a time when passing legislation has proven exceedingly difficult, the Marrakesh Agreement would be a relatively easy and uncontroversial way to demonstrate leadership internationally and help bring books to millions of blind, visually impaired, and print-disabled people around the world.

But why hasn't it happened? According to KEI, a group that fought hard for many years to get the agreement in place, the legacy copyright industries are working hard to block it in Congress:

The Obama Administration has asked the US Congress to ratify the treaty... but Congress has yet to act, in large part due to lobbying from the Association of American Publishers.... The AAP lobbied the Administration for changes in the U.S. ratification package, and now have asked the Congress for changes that they failed to obtain in the interagency review process. The U.S. ratification already represents compromises, including limitations of exports to countries that have ratified the treaty, a provision that currently excludes all of Africa and Europe. But the AAP continues to press for additional amendments to the ratification legislation.

This isn't a huge surprise, the AAP more or less admitted that they would refuse to support anything that established greater user rights, since that would be seen as an attack on "their rights." And, of course, the MPAA has also been working hard to block it, whining that this treaty could (gasp!) "affect other future treaties."

All of that is just shameful. This is a no-brainer situation. Helping the visually impaired get access to these works is something everyone should agree is a good thing. And yet, because they're so scared of user rights expanding in any way at all, the legacy industries have to block it.

Filed Under: blind, canada, copyright, marrakesh treaty, treaty for the blind, us, user rights, wipo
Companies: association of american publishers, mpaa

Book Publishers Whine To USTR That It's Just Not Fair That Canada Recognizes Fair Dealing For Educational Purposes

from the you-know,-like-US-law dept

A few years ago, Canada's Supreme Court made it clear that "fair dealing" should be applied broadly, especially in educational settings. Fair dealing, of course, is similar to fair use -- and, in the US, in theory, educational uses are also supposed to qualify for fair use. As Section 107 of the US Copyright Act states:

The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

Thus, it seems like the Canadian interpretation is very much in line with the US's statutory view of fair use. Of course, over the years, in the US, publishers have repeatedly chipped away at fair use, such that now that Canada has moved to a position more akin to what the US's is supposed to be, those same publishers are absolutely flipping out. Last year, we noted that those US publishers submitted a recommendation to the USTR claiming that fair dealing in Canada was simply piracy. This was the publishers' submission to the USTR for consideration in preparing its annual Special 301 Report.

Apparently, this "fair dealing = piracy" argument didn't play well enough at the USTR and didn't make this year's Special 301 charade. So, the publishers are pissed. Or so reports a recent bit in Politico's Morning Trade (I'd link to the actual story, but Politico apparently doesn't believe in making it easy to permalink to its Morning Trade tidbits, so it's no longer there), where it notes they've asked the deputy USTR (and former BSA boss) to do something.

Deputy U.S. Trade Representative Robert Holleyman is traveling to New York today to attend the opening ceremony of BookExpo America, put on by the Association of American Publishers. The industry group is steamed over USTR’s failure in a recent report to confront what it regards as Canada’s overly broad copyright exception for educational purposes. “Active engagement by the U.S. and Canada to remedy the damage should not be put off any longer,” the AAP said.

Think about that for a second. Here are American publishers flat out complaining about Canada setting up its laws to help people get educated. Do these publishers think even in the slightest about the kind of message they're sending out? "Fuck educating children -- we want more money."

Filed Under: book publishers, canada, education, fair dealing, fair use, robert holleyman, ustr
Companies: association of american publishers