Ever since Canada’s 2012 Copyright Modernization Act, it’s been an intense time for copyright in Canada, and 2018 was no exception. Looking ahead, 2019 will also be a busy year.
The long-awaited Statutory Review of the Copyright Act began in April 2018 and continued through much of the year. Led by the Standing Committee on Industry, Science and Technology, the review heard testimony from more than 200 witnesses and accepted briefs from almost as many stakeholders. Its eventual report will include the findings of a parallel inquiry by the Standing Committee on Canadian Heritage, focused on remuneration models for artists and creative industries.
Canadian rightsholder organizations and the International Publishers Association contributed to both committees, focusing on the damage caused by the inclusion of fair dealing for education in the 2012 Copyright Modernization Act. Authors and publishers testified that the introduction of a poorly defined fair dealing exception in 2012 helped break a previously well-functioning marketplace, leading to their cumulative loss of at least $98 million over the last six years, and unsustainable damage to a host of Canadian cultural industries and professions. The reports are expected to be released sometime this spring.
With a federal election on the horizon, legislative or regulatory change may still be years away. However, parliamentarians of all political stripes have an opportunity to play a leadership role in reversing the problems resulting from the education sector’s interpretation of the Copyright Modernization Act’s provision on fair dealing.
Copyright Board Reform
In response to widespread recognition that Canada’s Copyright Board had become inefficient, the Ministers responsible for the Board initiated a process for reform in summer 2017. While the reform package that was ultimately announced in October 2018 included some progress, the primary request made by the author and publishing sectors—that statutory damage rates be harmonized across collective societies—was not included.
This means that when Access Copyright and Copibec seek to enforce publishers’ and authors’ rights against unlicensed infringers, they can only collect damages equal to the value of the tariff set by the Copyright Board.
Imagine parking your car in a lot where the fine you might receive is equal to the cost of parking; who would ever pay in advance? Pay now, or maybe pay later—if you’re ticketed. This is now the situation for the Canadian education sector: it has no incentive to pay tariffs set by the Copyright Board. This is an untenable situation for Canadian writers and publishers. Continued litigation is also not sustainable.
The education sector’s disregard for the Copyright Board has been on full display in suits launched in February 2018 against Access Copyright by the K-12 education sector outside of Quebec. The suits seek to recover $25 million (CAD) in legally certified tariff fees collected by Access Copyright for the period of 2010-2012.
There is no dispute that the Departments of Education overpaid the tariff during this period (fees are often paid before the Copyright Board sets a final rate), but because the schools ceased paying the mandatory tariff in January 2013, in Access Copyright’s view, tens of millions of dollars are owed to both Canadian and international rightsholders, not the other way around.
Seeing provincial governments suing Canadian creators and publishers when they in fact owe them money has led many to question the commitment of Canadian governments at all levels to a sustainable domestic publishing industry and the Canadian-specific learning resources they produce.
The Federal Court of Canada’s 2017 decision in Access Copyright v. York University was a definitive victory for Canadian rightsholders. It found unequivocally that York’s copying guidelines—substantially shared by the entire education sector—are unfair, and that tariffs certified by the Copyright Board are mandatory. The university’s appeal of the decision is scheduled to be heard by the Federal Court of Appeal this month. In the meantime, the education sector has not changed its copying practices, and continues to amass an enormous bill in unpaid tariffs. We anticipate a decision on the appeal in late 2019 or in early 2020.
The View from Quebec
To end on a positive note, in July 2018 Copibec and Université Laval settled the class action suit launched by Copibec when Laval ceased payment of licensing fees to the collective. With this settlement, the entire K-12 and post-secondary education sector in Quebec is now back under collective licence.
This is excellent news for writers and publishers in Canada, and also around the world. Though the vast majority of Canadian educational institutions outside of Quebec remain unlicensed, when material is copied for use in Quebec classrooms royalties are paid. With leadership and political will, there is no reason that the same could not again be true throughout Canada.
Kate Edwards is Executive Director of the Association of Canadian Publishers.