When the Canadian Copyright Modernization Act was passed in 2012, publishing associations were happy with certain aspects of the legislation, including its antipiracy measures. But dissatisfaction in the industry has been mounting over the act’s “fair-dealing” guidelines, which expand the list of situations under which copyrighted materials can be used without paying rights holders. 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.
The publishing industry was most concerned about the exemption for education. Erin Creasey, president of the Association of Canadian Publishers (ACP) and a board member of Access Copyright, a Canadian nonprofit that licenses content to educational institutions and others, said that publishing organizations, publishers, and the writers’ union spent several years lobbying the government to leave the new exemptions out of the bill.
Student unions, universities, and other educational institutions strongly supported the change. “They see it as a new digital world, expanding what you are able to access and what your students can access,” Creasey noted. “At the time, they said that it wasn’t going to impact how much they paid to use materials because they were going to treat it in... such a respectful way. But they did exactly what they said they weren’t going to do, and they have a very free interpretation of the language.”
Roanie Levy, the executive director of Access Copyright, explained 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.”
According to Creasey, most publishers who fill course orders have seen textbook orders from university bookstores go down significantly since the Copyright Modernization Act was passed. The way colleges and universities are interpreting the law, he said, someone could copy one story from every Alice Munro book and make their own collection without paying any copyright fees. “Obviously, the impact of those changes are such that that interpretation of fair dealing is simply not fair,” said Levy.
That impact is perhaps most apparent in the revenues lost when 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 a flat fee for the reproduction of copyrighted material, and Access Copyright distributes royalties to the appropriate publishers and creators. According to figures provided by the organization, 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. They 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. “We’ve heard from many institutions... that come the expiration of the license, they too will rely instead on fair dealing to continue making use of the work instead of paying rights holders for the use,” said Levy. The total losses from secondary licensing income to publishers and authors starting January 1, 2016, are projected to hit C$30.8 million per year.
Those losses are having a direct impact on the way publishers operate. Oxford University Press Canada closed the K–12 division of its Canadian publishing program in February this year, stating that changes to copyright law and resulting loss of revenue were significant factors in the decision.
Christine Tausig Ford, v-p of the Association of Universities and Colleges of Canada (AUCC), said that the association’s guidelines for the use of copyrighted material include a whole range of safeguards to balance students’ needs with the rights of publishers and creators, and that these safeguards are in keeping with copyright rulings from the Supreme Court. When asked about the reported revenue losses, she said, “There are a lot of factors that are causing revenue loss for publishers these days, but I can tell you that Canadian university libraries currently spend more than C$300 million a year to buy and license new content for research and learning and that spending has not decreased one iota as a result of recent changes to copyright law.”
Tausig Ford added that AUCC is and has always been open to dialogue with publishers and Access Copyright. When she addressed members of the ACP last year, she said there were discussions of “the way many publishers are developing new and innovative business models that really tap into the need of universities for flexible access to Canadian content, often in digital format. For example, digital site licenses are being negotiated by universities with publishers.”
A review of the legislation is set for 2017, and the Canadian government has thus far given no sign that it intends to expedite the process, so the next stage of the fight may be in the courts. The first time a court will review at the new fair-dealing guidelines is in a case between Access Copyright and York University, but the trial isn’t scheduled until May 2016.
Looking at the extended time line, Sandy Crawley, executive director of the Professional Writers Association of Canada, said she thinks that publishers and authors can win in court, but, given that a trial is still two years away, “the problem is it will be too late then.”
