Students 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 are renewing their calls for the government to amend the Copyright Act to institute a mandatory fee for universities to access copyrighted materials.
With the addition of a single word to the Act in 2012, the Conservative government unwittingly pit the educational system against the publishing industry in a decade-long clash that finally reached the Supreme Court of Canada last summer. Now, buoyed by a mention in the 2022 Budget, publishers are renewing their calls for the government to make amends – but postsecondary institutions don’t agree.
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 materials. This launched a debate over whether universities and colleges would be legally required to pay fees for making copies of copyrighted materials.
This was finally settled last summer when the Supreme Court ruled in favour of universities, under the current Act. But less than year after losing the court battle, the Canadian publishing industry has said that since 2012, it has lost $190-million dollars in unpaid licensing fees, and is asking Ottawa to amend the Act.
In an e-mail to The Globe and Mail, a spokesperson from Heritage Canada said the government is “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 holders.”
Part of the industry’s ask, timed alongside World Book and Copyright Day on April 23, is that Ottawa institute a mandatory $14 flat fee for every postsecondary student in Canada to copy its materials. Before being applied, fees are required to be approved by the Copyright Board of Canada.
“The government needs to get over its fear of what they consider to be hurting education, and say that justice must be done,” said John Degen, the president of the The Writers’ Union of Canada.
Yet educational fair dealing “represents just one of many ways that universities clear copyright on materials used in classrooms, including consortia licenses, transactional licenses, and student purchase, which all see creators remunerated,” said Ann Mainville-Neeson, vice-president of government relations for industry association Universities Canada, in an e-mail statement to the Globe.
As lawyer and postsecondary adviser Michal Jaworski noted in his November 2021 essay in support of universities, “the truth is nuanced and complex and not easily reduced.”
Prior to 2012, in order to gain access to copyrighted catalogues, postsecondary institutions paid around $3 per student in flat fees and an additional 10 cents per copy of a licensed page. With added fees, the university was effectively paying $38 per student, according to federal court documents. The money went to organizations such as Access Copyright, an organization that collects and distributes copyright fees for Canadian publishers when universities and students make copies of its materials.
After the government updated the Act, Access Copyright spokesperson Andrea Chrysanthou said in an e-mail that “most universities walked away,” instead choosing “to copy for free under their Fair Dealing Guidelines.”
Industry association Universities Canada said that this is not the case, and that universities continued to subscribe to several licensing services post-2012. It pointed to data from the Canadian Association of University Business Officers, which shows that the amount of money spent on library acquisitions has slowly increased from $320-million to $420-million annually over the last 10 years. It is unclear if this amount includes fees paid for making copies, such as those fees paid to Access Copyright, and CAUBO did not reply in time for publication.
While short excerpts have always been protected under law, Kate Edwards, executive director at Association of Canadian Publishers, says the problem is when teachers copy materials for their whole class.
“The Canadian education sector is photocopying 600 million pages of work without compensation to rights holders per year. So it’s a huge volume of content that’s being used to support curriculum delivery,” said Ms. Edwards.
The issue was recently revived by a one-sentence mention in the 2022 federal budget, which is being interpreted differently on both sides: “The government will also work to ensure a sustainable educational publishing industry, including fair remuneration for creators and copyright holders as well as a modern and innovative marketplace that can efficiently serve copyright users.”
The reference to fair remuneration is encouraging, said Mr. Degen. “That was the result of a lot of work that we’ve done as arts advocates,” he said.
But Universities Canada’s Ms. Mainville-Neeson said the mention of the Act was expected in line with other provisions related to the Canada-United States-Mexico deal made in 2018. As for the education comment, she noted that the modern and innovative marketplace that the government calls for is “best achieved by ensuring that universities have choice in how they clear copyright and through the protection of educational fair dealing.”
Law experts agree it might be time for Ottawa to step in once more. According to John Simpson, a copyright lawyer at Shift Law in Toronto, a Supreme Court decision served as encouragement for the publishing industry to redouble its efforts on lobbying government to clarify its original intention in 2012.
“The major take-away is that Parliament does need to provide some clarity here,” said Mr. Simpson. “There are still a lot of people who disagree and it shouldn’t be Supreme Court’s role to create policy on issues like this.”
Sign up for The Globe’s arts and lifestyle newsletters for more news, columns and advice in your inbox.