In what has become a well-known story in the international publishing community, the Canadian Copyright Act was amended in 2012 to include "education" as a purpose for fair dealing. But with no definition of "education" offered by the Act, Canadian schools have over the last five years operated under arbitrary guidelines, understood to permit the uncompensated copying and distribution of print and digital copies. These copies amount to hundreds of millions of pages each year.
Unsurprisingly, the Canadian publishing industry has suffered significant economic damage as a result.
Collective licensing revenue across the industry is down 80% since 2013—a loss of $53 million (CAD) in licensing royalties alone after K-12 Departments of Education and the vast majority of Canadian universities and colleges ceased paying licensing fees to Access Copyright, the copyright collective that administers Canadian licenses outside of Quebec. In addition, free copies have become a substitute for finished books, with the loss of those sales compounding the damage.
The net result: reduced investment in innovative products, and fewer high-quality educational resources developed in Canada, for the Canadian market. Some multinational publishing firms have shuttered entire Canadian educational publishing divisions and laid off staff. Others have moved warehousing and distribution to the United States, weakening Canadian supply chains. Canadian houses, meanwhile, are redirecting investment away from education, and the financial impact on Canadian writers is dramatic.
But a recent legal decision has the potential to influence the upcoming five-year review of the Copyright Act, with rightsholders calling on the government to address the damage stemming from the introduction of fair dealing for education.
The York University Case
Since 2012, uncompensated copying and distribution of print and digital copies has become the norm in Canadian schools. And with the education sector unwilling to come to the table, and the law silent on what constitutes fair dealing in an educational context, litigation remains one of the few avenues available to rightsholders.
The first legal test of the education sector’s copying guidelines came in the form of a lawsuit against Toronto’s York University. Filed by Access Copyright in 2013, the suit alleged that York’s copying guidelines authorize and encourage copying that is unsupported by Canadian law.
In July, 2017, the Federal Court of Canada ruled unequivocally in favour of Access Copyright, finding York’s guidelines to be unfair in both their terms and application, and that tariffs issued by Canada’s Copyright Board (the regulatory body authorized to establish royalty rates for the use of copyright protected works administered by collective societies) are mandatory. In short, the Court found that York’s copyright policies and practices served primarily to “obtain for free that which they had previously paid for.”
The Court also found that the university’s actions have had an “adverse effect on writers and publishers,” resulting in a “wealth transfer” from copyright holders to educational institutions.
Though the case specifically examined York’s policies and practices, the propagation of similar policies throughout the sector means that the “mass systemic and systematic copying” identified by the Court can be assumed to be widespread. Indeed, for all practical purposes, most Canadian post-secondary institutions and K-12 schools have copyright policies identical to York’s.
Though the Court’s decision provided much-needed guidance on fair dealing for education, and affirmed the position the Association of Canadian Publishers and other rightsholder groups have put forward for years, resolution is far from certain.
Despite the Court’s clarity, the response of universities across Canada has been disappointing. For its part, York has announced its intention to appeal the decision, and K-12 Departments of Education have been silent. Rather than examine the Court’s findings as they apply to their own institutions, universities, colleges and schools are instead maintaining the policies and procedures that the Court found lead to illegal behavior.
At the same time, the need for high quality Canadian curriculum resources that reflect local realities has not diminished, and demand for Canadian educational content remains high; however the ongoing supply of Canadian learning resources remains uncertain.
Let’s Come to the Table
In an article for last year’s PW Frankfurt Show Daily, I noted that the Canadian experience serves as a cautionary tale for other territories considering these kinds of copyright reforms. And accordingly, international interest in Canada’s situation is growing, especially as the upcoming five-year parliamentary review of the Copyright Act approaches.
As of this writing, the scope and timing of the review have yet to be announced, though it is anticipated that the process will launch in early November and extend into 2018. In the meantime, as Canadian publishers and creators await details of York’s appeal, as well as the parliamentary review, financial losses continue to grow. Canadian students returned to schools this fall, and in many cases are relying on illegally produced copies to support their learning.
A simple solution is available, however: let's return to an affordable collective licensing regime, providing Canadian students with worry-free access to the resources they need, and rightsholders fair remuneration.
Achieving this does not require a review of the Copyright Act. All it requires is a willingness on both sides to strike the right balance between the interests of users and rightsholders, and leadership on the part of government to ensure this balance is upheld.
Kate Edwards is Executive Director of the Association of Canadian Publishers.
