Serena Nath is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

In April 2022, the federal government released its 2022 budget proposal. This budget proposal included proposed changes to Canada’s Copyright Act. One of the proposed changes aimed to reform legislation regarding educational uses of copyright. In particular, the federal government pledged to amend the Copyright Act to protect and ensure the longevity of the educational publishing industry.

Support for the Proposed Amendments

Many in the field of education publishing saw these proposed changes as the holy grail they have desperately been searching for since the 2012 amendments to the Copyright Act which wreaked havoc on the publishing industry. The 2012 amendments resulted in a loophole that allowed for widespread photocopying at schools and post-secondary institutions without signing and paying for licences for copied educational materials. This resulted in losses of approximately $200 million in income for the Canadian writing and publishing industry, which effectively destroyed the industry. Thus, when the proposed federal budget announced the government’s urgent intentions to create a sustainable educational publishing industry, it is understandable why Canadian publishers rejoiced. Additionally, because of the lack of payment to the educational publishing industry, there has been a lack of incentive to develop new technologies in this industry, particularly regarding digital educational materials. Thus, many are hopeful that the proposed protection to the educational publishing industry will also incentivize the industry to now innovate to keep up with current times and changing curriculum.

Opposition for the Proposed Amendments

On the other hand, the proposed changes to the Canadian Copyright Act have also faced criticism from Canadian intellectual property scholars. In an open letter addressed to the Federal government, 25 intellectual property scholars from across Canada have voiced their concerns regarding enacting these changes under the federal budget and instead urge the Federal government to enact any changes via the regular legislative process. The group argued that any changes may “throw off the balance between copyright holders and user rights, particularly in education.” Additionally, the group cautions against believing the story regarding lost profits from the Canadian educational publishing industry due to the 2012 amendments, and instead asked the government to review “compelling evidence” before taking any action. Thirdly, the group argued that if amendments proceed through the federal budget, they may be inconsistent with constitutional principles. The group was concerned that the pledged amendments would exceed Parliament’s legislative authority over copyright law and may intrude into the education sector, which is under provincial jurisdiction. Finally, they also warned that enacting the amending legislation through the federal budget is likely to result in a lack of review and democratic debate over the legislation.

Reconciling the Two Views

In my opinion, I can understand the scholars’ views of wanting to ensure constitutional compatibility, proper review of legislation, and a democratic debate. However, I also recognize the sense of urgency from the Canadian educational publishing industry. I believe that the publishing industry may be on the verge of a timely death, with many content creators not getting paid and the education system potentially suffering due to a lack of innovation in the educational publishing community. If any amendments were to occur via the regular legislative process, this may delay any detrimental effects to the educational publishing industry. It is unclear how this balance can be achieved, but I welcome any suggestions, thoughts and fresh perspectives in the comments section.