People on both sides of the debate about how to balance access to educational materials with copyright have been closely watching developments in Canada following changes to Canadian legislation in 2012. Publishers and creators in Canada say the impact of those changes has hit them hard and argue that the Canadian model should only serve as an example for other countries of what not to do. They are calling for the Canadian government to fix the problem.
“To say that the rest of the sophisticated and developed world is stunned by the permissiveness of Canada’s new fair dealing clause is an understatement,” says Jacqueline Hushion, executive director of the Canadian Publishers’ Council and chair of the Canadian Copyright Institute. She notes that she spoke about the issue at the 2012 Frankfurt Book Fair, in a closed door session attended by representatives of the World Intellectual Property Organization (WIPO), publishers, and the legal community, and that she now hears regularly from concerned parties abroad who don’t want the Canadian law to serve as a precedent for changes to legislation in their countries.
Publishers and creators in Canada are frustrated that warnings about the negative consequences of expanding the act’s “fair-dealing” guidelines were not heeded before the legislation was amended. Previously, copyrighted materials could be freely reproduced for the purposes of criticism, private study, research, and news reporting, but the new law added education, parody, and satire to the list of permitted uses.
The publishing industry was most concerned about the exemption for education. Roanie Levy, executive director of Access Copyright, a Canadian nonprofit that administers the licensing of copyrighted content, explains that in educational institutions’ interpretation of the law, “it is fair for them to use up to 10% of a work or a chapter of a book. And they believe it is fair to copy a chapter, put it on a course-management website, and share it with a class of 10 students or a class of 150 students.... It would be fair to take chapters from multiple publications, journal articles, and 10% of a book, compile it all into a course pack, and use that as the readings for a given class, without paying any of the rights holders.”
Following the legislative change, many educational institutions decided not to renew collective licensing agreements administrated by Access Copyright. Under those agreements, universities pay C$26 per student and colleges pay C$10 per student as flat fees for the reproduction of copyrighted material, and Access Copyright distributes royalties to the appropriate publishers and creators. According to Access Copyright figures, the drop-off in licensing renewals in 2013 resulted in a C$4.9 million decline in Access Copyright’s payments to publishers and creators last year. It lost another C$13.5 million in 2013 because provincial education ministries also stopped paying licensing fees for the K–12 sector in public schools. There are still colleges and universities that are under license, but many of those licenses expire at the end of 2015.
Christine Tausig Ford, v-p of the Association of Universities and Colleges of Canada (AUCC), says the guidelines it issues to its members are in keeping with the two rulings from the Supreme Court of Canada, in 2004 and 2012, which were intended to balance the rights of users with the interests of copyright owners, but which broadened the scope of fair dealing. She believes the guidelines “were carefully thought out and are fair.”
Greg Nordal, CEO of Nelson Education, said the changes have already taken a toll. He points to Oxford University Press’s closure of its K–12 division as “a bit of a canary in the coal mine.”
John Degen, executive director of the Writer’s Union of Canada, says an informal survey of the union’s 2,000 members revealed that many depend on royalty revenues as an important part of their income.
Rudy Wiebe, an author whose books have won the prestigious Governor General’s Award Literary Award twice, offers the example of lost revenues from one popular short story that provided a standard fee for a textbook of C$1,400. In 2010, the publisher permission requests suddenly stopped, though Wiebe says he is sure the story is still being used. “That the education system in Canada would refuse to pay Rudy Wiebe for his service to our culture is a national embarrassment,” says Degen.
Rick Wilks, director of Annick Press, made a presentation to the Copyright Board on the impact of the loss of collective licensing in the K–12 sector. “It’s really hurting us, and it’s really hurting creators, and it’s hurting Canadian content,” he says. “There will be fewer books because of this, fewer voices, and authors won’t be able to afford to write.”