According to a new report, changes to Canada’s copyright law have had devastating effects on educational publishers and will ultimately contribute to a decline in the quality and quantity of content available to students. Trade publishers say they, too, are feeling the impact.

When the government updated Canada’s copyright law in 2012, changes such as antipiracy measures were welcomed by the publishing industry, but there was also a great deal of concern over the expansion of an exemption for education. Previously, materials could be freely reproduced for the purposes of criticism, private study, research, or news reporting, but the new law added education, parody, and satire to the list of permitted uses.

That same year, the Fair Dealing Guidelines were adopted by the Council of the Ministers of Education, the Association of Universities and Colleges of Canada (now called Universities Canada), and Colleges and Institutes Canada. According to the guidelines, it is fair to reproduce up to 10% or one chapter of a published work as well as newspaper and magazine articles without compensating the author. Using this interpretation, teachers and professors could then compile course packs from multiple sources and distribute them to their students without paying any royalties.

Access Copyright—a nonprofit that acts on behalf of authors, visual artists, and publishers to administer the reproduction of works in Canada (except Quebec)—reports that since the implementation of the guidelines, “all public elementary and secondary schools outside Quebec and numerous postsecondary educational institutions have ceased paying royalties for the copying of published works.” Access Copyright commissioned PricewaterhouseCoopers to assess the economic impact. That report was published this summer, and it paints a dire picture both for publishers and Canadian students, predicting that some small and medium-sized publishers will be forced out of the educational publishing market by the loss of this licensing revenue.

Licensing income from the K–12 sector has been nearly eliminated, according to the report, which estimates that large educational publishers would need to produce an additional C$24 million in sales (about 18%) each year to make up for lost licensing revenue. Oxford University Press, one of the largest educational publishers in Canada, closed its K–12 publishing division in early 2014, citing the guidelines and the resulting loss of revenue as a major reason.

Nelson Education has just been sold to a new group of financial investors, but CEO Greg Nordal says concern over the copyright issue was “perceived as a barrier to investment” when Nelson was seeking to sell the company earlier this year. He notes that the changes have had a “minimum seven-figure impact on our bottom line every year” since 2013.

Trade publishers do not have it much easier. “The Fair Dealing provisions really are a problem,” says Rick Wilks, director and cofounder of Annick Press in Toronto. “We know our books are being photocopied, and we’re cautious about some kinds of publishing because of that,” he says, mentioning collections of plays as an example of one type of book that Annick has stopped publishing. “Some of our illustrated nonfiction breaks down into chapters on particular issues, and we know that some of those chapters just get photocopied.... They’ve gone from an important source of revenue to zero.”

Andrew Wooldridge, publisher of Orca Book Publishers in Victoria, British Columbia, has also seen the effects firsthand. “We sell a lot to schools and libraries, and we’re running across situations where content is not being purchased, but ‘borrowed.’” Wooldridge agrees with the report’s prediction that the long-term effects of the changes will lead to a decline in the quality of educational resources available to Canadian students. The danger, he says, is that companies that create curriculum specific to Canada won’t be able to afford to stay in business. “We’re going to end up with Canadian schools buying their educational content from the U.S., and we’re going to end up with a U.S. curriculum in our schools if we’re not careful.”

The report predicts that the effects will be similar in the postsecondary market once current licensing agreements expire at the end of 2015. It projects that “the expected cessation of licensing for the use of parts of works would represent a loss of approximately C$30 million per year in payments to content producers.”

“We’re obviously a huge supporter of Access Copyright,” says Brad Martin, president and CEO of Penguin Random House Canada. “We don’t agree with the institutions that suggest that they should be able to use copyrighted material free of charge.” As a trade publisher, he says, PRH is not affected to the same extent as academic publishers, but he notes that, “We know what we used to get as an income from Access Copyright is down by about 50% in 18 months.”

Arsenal Pulp Press publisher Brian Lam says the changes have hit smaller presses particularly hard. “A lot of our titles adopted at the college and university level are in course packs, and that’s where our authors’ work is most vulnerable,” he says. “They’re taking that work and then not having to pay for it, in the name of fair use.”

Although the amended law will be subject to a five-year review in 2017, the next developments may happen in the courts. Access Copyright filed a copyright lawsuit against Toronto’s York University, and a trial date has been set for May 2016.

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