At the end of November, on November 29 to be precise, the “I Value Canadian Stories” coalition launched a “Day of Action”. The objective was to draw the attention of the Trudeau government, in particular the two ministers responsible for the Copyright Act, Innovation, Science and Industry Minister François-Philippe Champagne and Heritage Minister Pablo Rodriguez, to the need to move urgently on promised copyright reform.
The coalition came into being in 2017 and brings together over twenty-five author, publisher and copyright groups from across the country to deliver a key message: the Federal government must restore fair compensation to creators and publishers for the use of their works by the education sector.
This is an issue I have written on multiple times. It goes back more than a decade when the elementary, secondary, and post-secondary education sectors in English Canada began to opt out of licensing content from the collective society representing authors and publishers, the Canadian Copyright Licensing Agency, known as Access Copyright. Instead, they developed their own “fair dealing guidelines”, using as cover the new education fair dealing exception introduced into the Copyright Act in 2012. In effect, the universities declared that the content they had previously licensed from Access Copyright was now free for the taking under the education fair dealing exception. For the most part, they simply stopped acquiring and paying for licences, depriving authors and publishers of substantial revenues, in effect requiring the educational publishing sector to subsidize Departments of Education and institutions of higher learning. In Quebec, most educational institutions continued to pay for licences from Access Copyright’s Quebec counterpart, Copibec, with the exception of Laval University. The result in both cases was litigation. In Quebec, eventually, Laval settled with Copibec. Unfortunately, Access Copyright was not able to achieve the same outcome in its area of jurisdiction, the rest of Canada.
The Access case (against York University) eventually went all the way to the Supreme Court of Canada (SCC) which delivered a damaging decision in July of 2021. While not accepting York’s claim that its copying practices were fair (although also not ruling that they weren’t), the SCC upheld a decision by the Federal Court of Appeal that had overturned a key aspect of an earlier court ruling that had gone in favour of Access Copyright. The original decision not only found that York’s dealings were unfair, but it required York to pay the interim “mandatory tariff” for copying published materials in Access Copyright’s repertoire.
This “tariff” (royalty payment) had been established by the Copyright Board of Canada, a quasi-judicial administrative agency whose role is “to establish fair and equitable tariffs and licences through timely and fair processes”, including setting tariffs in situations where a collective society and users cannot agree on royalties. The Board’s intervention had been invoked because many post-secondary institutions (including York) had declined to obtain a licence from Access Copyright for reproducing content that the copyright collective represented even though they were reproducing material from the collective’s repertoire. Access Copyright sought to enforce the interim tariff established by the Board against York in the Federal Court, which found that the interim tariff was enforceable. However, York appealed, and the Appeal Court ruled that tariffs set by the Copyright Board are enforceable only against users who willingly agree to be bound by the tariff. This decision, upheld by the SCC, has in effect undermined the principle of collective licensing of published materials in Canada.
If this is all rather complicated and “inside baseball” to most people, suffice to say that as a result of the SCC decision, authors and publishers are now urging the government through Parliament to fix the loophole in copyright law that has led to this outcome. The root of the problem is the ill-considered decision to include “education” as a fair dealing exception when the Copyright Act was updated in 2012. When combined with the SCC’s decision reversing the previously-accepted interpretation of the mandatory tariff regime, we have a perfect storm of bad news for authors and publishers, and for collectives like Access Copyright.
That is the story behind the “I Value Canadian Stories” campaign. Earlier this year, in the 2022 Budget document, the Trudeau government provided some measure of hope that the problem would be fixed, but to date there has been no action. I wrote last week (“It’s Official! Canada Extends its Term of Copyright Protection”) about one of the two copyright references contained in the budget document. That provision announced the fulfillment of Canada’s commitment in the USMCA/CUSMA trade agreement to extend its term of copyright protection by twenty years. An amendment to the Copyright Act to this effect was subsequently incorporated into the Budget Implementation Act, omnibus legislation that bundled a number of unrelated legislative issues, including copyright, into the budget bill for administrative and legislative convenience. Since this was a very limited and targeted amendment to the Copyright Act which did nothing to redress the problems described above, the budget bill also contained the following wording as reassurance to the copyright community:
“The government is committed to ensuring that the Copyright Act protects all creators and copyright holders. As such, the government will also work to ensure a sustainable educational publishing industry, including fair remuneration for creators and copyright holders, as well as a modern and innovative marketplace that can efficiently serve copyright users.”
That was a useful statement–but since then nothing has happened, and creators and publishers continue to be denied payment when their work is copied in educational institutions outside of Quebec. The one-off amendment to the Act to extend the term of copyright duration has now been done, driven by the deadline built into CUSMA, but of the broader amendments needed to fix the education loophole (as well as to address a number of other copyright-related issues about which there has been Parliamentary review as well as discussion papers circulated for public comment), there has been not a word. In principle, the Copyright Act was due for an update five years after the previous revisions, in other words in 2017. Two years after that, two Parliamentary Committees held hearings to review aspects of the Act, and made a series of recommendations, some of them contradictory. Since then, there have been discussion papers on issues such as artificial intelligence, online intermediaries, text and data mining, orphan works and so on. The pot is starting to bubble, but there are still no signs that the government is ready to introduce legislation.
The ”Day of Action” was undertaken by writers and publishers groups from across Canada. Quebec writers’ and publishers’ associations were particularly active during the “Day of Action”, even though Copibec and Laval reached an accord on licensing in 2018. What explains the continuing interest of Quebec-based authors and publishers? First, they are denied payment of education royalties in the rest of Canada in the same way as Access Copyright’s members are short-changed. Second, they are concerned that Quebec educational institutions could follow the lead of universities in the rest of Canada and stop paying creators and publishers by walking away from licensing agreements. Not being a legal requirement, it could be renounced in future.
Lobbying took place on Parliament Hill on November 29. Blank books were distributed, graphically underlining that this could be the fate of the publishing industry in Canada in future if the royalties issue is not resolved. The decline in revenues to the industry from educational institutions has been staggering, estimated at over $200 million since 2012, with four educational publishers ceasing operations in either the K-12 or post-secondary sector in Canada, and others shifting out of production of Canadian educational materials for Canadian students.
The campaign featured individual writers with their works, and a letter writing campaign to Minister Champagne. It was a reminder that the creative community expects the government to follow through on its commitment to “ensure a sustainable educational publishing industry, including fair remuneration for creators and copyright holders”. One way in which this could be done would be to narrow the education fair dealing exception so that it applies only when a work is not commercially available, as per the Recommendation (#18) made by the Heritage Standing Committee in its report “Shifting Paradigms.
The Trudeau government needs to get moving. Although in a minority situation, its “confidence and supply” agreement with the opposition NDP should give it two plus years to update the Act, and redress the injustices introduced a decade ago. If Canada’s educational publishing sector is to survive, if Canadian students are going to be provided with culturally relevant content as part of their learning, and most important, if Canada’s authors and writers are to be dealt with fairly and justly and be provided with the financial means to continue to create Canadian stories, the Copyright Act needs to reflect these priorities.
As the campaign letter to the government stated so succinctly:
“Fix the Copyright Act now. Save the livelihoods of Canadian creators and publishers. And put a stop to great Canadian content disappearing”
© Hugh Stephens 2022. All Rights Reserved.