Canadian publishers are renewing their calls on the government to amend the Copyright Act to impose mandatory fees on universities to access copyrighted materials.
With the addition of a single word to the Act in 2012, the Conservative government unwittingly pitted the education system against the publishing industry in a decade-long standoff that finally reached the Supreme Court of Canada last summer. Now, backed by a mention in Budget 2022, publishers are renewing their calls for the government to make amends – but post-secondary institutions disagree.
Ten years ago, the federal government added the word “education” to its list of exemptions, which protect users in certain circumstances from paying tariffs for copying copyrighted material. This started a debate about whether universities and colleges would be legally required to pay fees to make copies of copyrighted materials.
This was finally settled last summer when the Supreme Court ruled in favor of universities under the current law. But less than a year after losing the court battle, Canada’s publishing industry says since 2012 it has lost $190 million in unpaid license fees and is calling on Ottawa to change the law.
In an email to The Globe and Mail, a spokesperson for Heritage Canada said the government was “working with the Department of Innovation, Science and Industry to fulfill our joint mandate letter commitment to Amend the Copyright Act to further protect artists, creators, and copyright owners.
Part of the industry’s demand, coinciding with World Book and Copyright Day on April 23, is that Ottawa institute a mandatory flat fee of $14 for every post-secondary student in Canada to copy their materials. Before being applied, fees must be approved by the Copyright Board of Canada.
“The government must overcome its fear of what it sees as undermining education and say that justice must be done,” said John Degen, president of the Writers‘ Union of Canada.
Yet educational fair dealing “represents only one of many ways that universities acquire copyright in materials used in the classroom, including consortium licensing, transactional licensing, and buying by students, who see all the creators paid,” said Ann Mainville-Neeson, Vice President of the Government. relations for industry association Universities Canada, in an email statement to The Globe.
As noted by attorney and post-secondary advisor Michal Jaworski in his November 2021 report writing in support of the universities, “the truth is nuanced and complex and difficult to reduce”.
Prior to 2012, in order to gain access to copyrighted catalogs, post-secondary institutions paid approximately $3 per student in fixed fees and an additional 10 cents per licensed copy of a page. With additional fees, the university was effectively paying $38 per student, according to Federal Court documents. The money went to organizations like Access Copyright, an organization that collects and distributes royalties for Canadian publishers when universities and students make copies of its materials.
After the government updated the law, Access Copyright spokeswoman Andrea Chrysanthou said in an email that “most universities opted out”, opting instead “to copy for free in accordance with their guidelines on fair dealing”.
The industry association Universities Canada said that was not the case and that universities continued to subscribe to several licensing services after 2012. It pointed to data from the Canadian Association of University Business Officers, which show that the amount of money spent on library acquisitions has slowly increased from $320 million to $420 million per year over the past 10 years. It is unclear whether this amount includes fees paid to make copies, such as fees paid to Access Copyright, and CAUBO did not respond in time for publication.
Although short excerpts have always been protected by law, Kate Edwards, executive director of the Association of Canadian Publishers, says the problem is that teachers are copying material for their whole class.
“The Canadian education sector is photocopying 600 million pages of work without compensation to rightsholders per year. So it’s a huge volume of content that is used to support the delivery of the program,” Ms. Edwards said.
The issue was recently reignited by a one-sentence mention in the 2022 federal budget, which is interpreted differently on both sides: “The government will also work to ensure a sustainable educational publishing industry, including fair compensation for creators and as a modern and innovative marketplace that can effectively serve copyright users.
The reference to fair remuneration is encouraging, Mr. Degen said. “It’s the result of a lot of work that we’ve done as advocates for the arts,” he said.
But Ms. Mainville-Neeson of Universities Canada said the mention of the law was expected in accordance with other provisions related to the Canada-US-Mexico agreement reached in 2018. Regarding the comment on the education, she noted that the modern and innovative marketplace that the government is calling for is “best achieved by ensuring universities have a choice in how they acquire copyright and by protecting fair dealing by matter of education”.
Legal experts agree that it might be time for Ottawa to step in once again. According to John Simpson, copyright lawyer at Shift Law in Toronto, a Supreme Court decision has encouraged the publishing industry to redouble its efforts to lobby the government to clarify its original intent in 2012.
“The main takeaway is that Parliament needs to provide some clarity here,” Mr Simpson said. “There are still a lot of people who disagree and it shouldn’t be the role of the Supreme Court to create policy on issues like this.”
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