The education ministries in all Canadian provinces and territories—except for British Columbia, Ontario, and Quebec—and the school board of Ontario have filed a lawsuit against Access Canada, the organization that licenses and collects fees for third-party use of creative content. The ministries are seeking to recoup C$27.5 million ($21.5 million) they paid between 2010-2012 for materials used in K-12 classrooms.
During that period, universities were expected to pay C$26 per student and colleges C$10 per student as a flat fee for the reproduction of publishers' copyrighted material. But, after a revision to the copyright law, called the 2012 Copyright Modernization Act, effectively expanded fair use for materials in an educational context (in Canada, this is called fair dealing), Access Copyright set a reduced fee, which was agreed to by the government, at effectively C$2.50 per student for K-12, starting January 1, 2013. Under the lawsuit, the educational institutions, which number more than 90 in all, are essentially trying to have the reduced fee applied retroactively by claiming to have overpaid C$4.81 per student per year from 2010-12. (The exact value of the fees are complicated by several extreme fluctuations in the value of the Canadian dollar over those years)
In the years since the Modernization Act, many educational institutions have paid Copyright Access nothing at all, taking advantage of the vague language of the act. The result has been an unmitigated disaster for Canadian educational publishing, with estimated losses of some C$50 million in payments to publishers over the last five years. For 2017, Access Copyright estimated payouts dropped from C$11 million in 2016 to C$5 million. Most education publishers have also claimed a reduction in textbook orders, some as much as 90%, over the same period. Meanwhile, Access Copyright estimates that the education sector copies 150 million pages from copyright-protected works each year.
Last year, publishers felt some hope about revising the Modernization Act after Copyright Access won a lawsuit against York University for non-payment of fees. With the Act up for a five-year government review this year, the win was seen as a good omen for impending change, but the news of the lawsuit has shocked many in the publishing industry.
In a statement to the press, Glenn Rollans, president of the Association of Canadian Publishers, which primarily represents small and medium-sized publishers, called it “a disturbing attack.” He added, “We have no choice but to interpret this suit as the intimidating action that it is.” The idea being that the ministries have more financial resources than Access Copyright and can outlast them in court, and likely make any discussion of potential changes to the Act all the more complicated for legislators.
Alexander Finbow, president of the Book Publishers Association of Alberta, wrote a letter to the education minister of Alberta asking the ministry to withdraw from the lawsuit. “It is hard for us not to view this action as an overt attempt to harass and intimidate Canadian creative workers, and to exhaust our energy and resources to fight for our rights and livelihoods," he said.
John Degen, executive director of the Writers’ Union of Canada, told the book trade publication Quill & Quire that the lawsuit was “an extreme move,” and symbolic of a dysfunctional system. “Anybody with kids from K–12 in Canada is fully aware of the abysmal state of educational-material funding in Canada right now. All the work we do to show our value, to get our work in front of students, and to have this be the tactic from the other side is quite appalling,” he said.
