Used with permission
November 30 is the “day of action” for Canadian writers and publishers. Writers across the country are writing the government and their MPs urging them to pass legislation to stop the great educational rip-off, being the uncompensated copying of 600,000,000 pages per year that has been taking place in the education sector since education was added as a fair dealing exception under the 2012 revisions to the Copyright Act. When that amendment was enacted, the educational sector outside Quebec, including Ministries of Education and post secondary institutions, started terminating their licensing agreements with the writers’ and publishers’ copyright collective, Access Copyright (AC), and unilaterally declared that the amount of copying they had previously paid for under licence, such as up to ten percent of a work, one chapter in a book, one article in a journal. etc, now constituted–from their perspective—fair dealing, and they would no longer pay writers for using their materials under an AC licence.
To assert the rights of its members, Access Copyright brought a lawsuit against York University, and won in the first instance at the Federal Court, which ruled that York’s self declared fair dealing guidelines for use of materials in the copyright collective’s repertoire were anything but fair. That ruling was appealed by the university, which then won on a technical point (whether they were required to compensate Access Copyright under so-called “mandatory tariffs” provisions) although the original ruling on whether York’s guidelines were fair under the Copyright Act was not overturned. The case went to the Supreme Court which upheld the appellate court’s decision regarding the enforceability of tariffs and given that, concluded they did not need to rule on the question of the fairness of the guidelines relied on by York. After years in the courts, the situation is still in limbo. What is needed is a legislative amendment clarifying that fair dealing for educational purposes can be invoked by institutions with respect to copyrighted works only when no commercially available alternative exists. That is what was recommended by the all-party Standing Committee on Heritage in its 2019 report “Shifting Paradigms“.
The universities, backed up by groups such as the Canadian Federation of Library Associations, claim there is no need to change anything as they pay hundred of thousands of dollars per year in direct licensing fees to publishers, allowing them to use digital materials freely. Their argument is that the shift to digital materials has made an Access Copyright reproduction licence unnecessary and obsolete. They argue that if they were to pay for an Access Copyright licence, they could be paying twice for the same material. This is plain wrong, a total fabrication.
The amendment proposed by the Standing Committee on Canadian Heritage would capture both direct licences issued by some publishers as well as the broad reprographic licence issued by AC so there would be no double counting. While it is true that some publishers offer direct licences for their material to universities and colleges, many do not, especially smaller Canadian publishers. Yet it is these works that the post secondary institutions are copying and distributing to students in both hard copy and, increasingly, in digital formats under their so-called fair dealing guidelines.
The education sector claims that their use of materials represented by AC has declined significantly. It may no longer represent the 6 million pages annually that was documented in 2015 for the Access v York case (the total includes copying by the K-12 sector as well as post-secondary institutions). It may be more, or it may be less. There used to be a proven way to find out the accurate number of annual pages copied, and that was to participate in the Copyright Board of Canada tariff setting process. The Board would adjudicate the amount of copying that needs to be compensated and set the “tariff” to be paid. But the Supreme Court has undermined the role of the Copyright Board by stating that tariffs are not enforceable. The government should also amend the Act and strengthen the role of the Copyright Board to ensure that universities cannot avoid their responsibilities to compensate authors for widespread copying of their works by opting out of collective licensing obligations even though using materials that are covered by these licences.
Despite the undisputed large amounts spent by post secondary institutions on direct licensing, this does not cover the uncompensated copying of non-licensed content that is still occurring every day on Canadian campuses (outside Quebec where an agreement is in place). The “day of action” is designed to highlight this injustice which has resulted in a diversion of revenues that has seriously undermined the Canadian publishing sector and the incomes of writers.
The Trudeau government has a lot of issues on its plate but this reform is long overdue. The fix is simple: narrow the loose wording of the education exception so that it applies to students, not to large institutions that are taking a free ride on the backs of Canadian writers and publishers.
© Hugh Stephens, 2023. All Rights Reserved.
