Kate Edwards is executive director of the Association of Canadian Publishers.
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
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 rights holder
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. 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 behaviour. At the same
time, the need for high quality Canadian curriculum resources
that reflect local realities has not diminished, and demand for
Canadian 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 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, and Canadian students returned to
unlicensed schools this fall, in many cases relying on illegally
produced copies to support their learning.
A simple solution is available, however: a return to an
affordable collective licensing regime, providing Canadian
students with worry-free access to the resources they need, and
rights holders 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 rights holders, and leadership on the
part of government to ensure this balance is upheld. ■
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, writes Kate Edwards. 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 and, 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 licences outside of Quebec. 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.
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 rights
holders calling on 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 rights holders.
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 authorise 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 authorised 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
It’s time to fix fair dealing in Canada