Publishers Press Ottawa to Revise Copyright Act, Citing $190 Million Loss

Students will study at the new Robarts Commons, a glass addition to the University of Toronto’s Robarts Library, on March 24.Galit Rodan/The Globe and Mail

Canadian publishers renew their call on the government to change the Copyright Act to introduce a mandatory fee for universities to access copyrighted material.

With the addition of a single word to the bill in 2012, the Conservative government unwittingly pitted the education system against the publishing house in a decade-long clash that finally reached Canada’s Supreme Court last summer. Now, buoyed by an entry in the 2022 budget, publishers are renewing their appeal to the government to make amends, but post-secondary institutions disagree.

Ten years ago, the federal government added the word “education” to its list of exceptions, which in certain circumstances protects users from paying fees to copy copyrighted material. This sparked a debate about whether universities and colleges would be legally required to pay fees for making copies of copyrighted material.

That was finally settled last summer when the Supreme Court ruled in favor of the universities under the current law. But less than a year after losing the lawsuit, the Canadian publishing house says it has lost $190 million dollars in unpaid license fees since 2012, and is asking Ottawa to change the law.

In an email to The Globe and Mail, a Heritage Canada spokesperson said the government is “working with the Department of Innovation, Science and Industry to comply with our joint mandate letter to amend the Copyright Act to allow artists, creators, and copyright holders .”

Part of the industry demand, timed alongside World Book and Copyright Day on April 23, is that Ottawa set a mandatory $14 flat fee for every post-secondary student in Canada to copy its materials. Fees must be approved by the Copyright Board of Canada before being applied.

“The government needs to overcome its fear of what it sees as harmful to education and say justice must be done,” said John Degen, president of The Writers’ Union of Canada.

Still, fair trade in education is “just one of the many ways universities release copyrights to materials used in classrooms, including consortia licensing, transaction licenses, and student purchases, rewarding all creators,” said Ann Mainville-Neeson, vice president. of government relations for industry association Universities Canada, in an email statement to the Globe.

As attorney and post-secondary adviser Michal Jaworski noted in his November 2021 essay in support of universities, “the truth is nuanced and complex and not easy to narrow down.”

To access copyrighted catalogs, prior to 2012, post-secondary institutions paid about $3 per student in flat fees and an additional 10 cents per copy of a licensed page. In fact, with additional fees, the university paid $38 per student, according to federal court documents. The money went to organizations such as Access Copyright, an organization that collects and distributes copyrights for Canadian publishers when universities and students make copies of their material.

After the government updated the law, Access Copyright spokesperson Andrea Chrysanthou said in an email that “most universities walked away”, opting instead to “copy for free according to their fair trade guidelines.”

Industry association Universities Canada said this is not the case and that universities will continue to subscribe to various licensing services after 2012. It pointed to data from the Canadian Association of University Business Officers showing that the amount spent on library acquisitions has slowly increased from $320 million to $420 million a year over the past 10 years. It is unclear whether this amount also includes the fees paid for making copies, such as the fees paid to Access Copyright, and CAUBO did not respond in time for publication.

While short excerpts are always protected by law, Kate Edwards, executive director of the Association of Canadian Publishers, says the problem arises when teachers copy material for their entire class.

“The Canadian education sector copies 600 million pages of work every year without compensation to rightholders. So it’s a huge amount of content that is being used to support the delivery of curricula,” said Ms Edwards.

The issue was recently revived by a one-sentence statement in the 2022 federal budget, which has been interpreted differently on both sides: “The government will also work towards sustainable educational publishing, including fair compensation for creators and copyright holders as a modern and innovative marketplace that can efficiently serve copyright users.”

The reference to fair compensation is encouraging, said Mr. epee. “That was the result of a lot of work we’ve done as art advocates,” he said.

But Ms. Mainville-Neeson of Universities Canada said the disclosure of the law was expected in line with other provisions related to the 2018 Canada-United States-Mexico deal. As for the comment on education, she noted that the modern and innovative market that the government demands is best achieved by allowing universities to choose how they release copyrights and by protecting fair teaching practices.

Legal experts agree it may be time for Ottawa to step in again. According to John Simpson, a copyright attorney at Shift Law in Toronto, a Supreme Court decision served as encouragement for the publisher to redouble its efforts in lobbying the government to clarify its original intent in 2012.

“The most important thing is that Parliament needs to provide some clarity here,” said Mr Simpson. “There are still a lot of people who disagree and it shouldn’t be the Supreme Court’s role to make policy on issues like this.”

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