‘Signal of Hope’: Canada’s Supreme Court Agrees To Hear Copyright Case Appeals

In News by Porter Anderson

Canadian publishers report losing millions of dollars in the world’s most prominent copyright controversy. The digital Frankfurt Guest of Honor Canada returns next year in–it’s hoped–a physical trade show.

By Porter Anderson, Editor-in-Chief | @Porter_Anderson

See our complete guide to Frankfurter Buchmesse 2020 here. It has our latest stories, event highlights, our free digital magazine, and more.

Roanie Levy: ‘Our Copyright System Is Not Working’
As Frankfurter Buchmesse’s digital evocation nears its end, Guest of Honor Canada’s Access Copyright has received the important news that the Supreme Court of Canada has agreed to hear its appeal and that of York University in fiercely controversial litigation.

Publishing Perspectives readers are quite familiar with this long-running, wrenching instance of what the Association of Canadian Publishers (ACP) has called a “broken copyright framework,” in which legislative action in 2012 triggered one of the world’s most closely watched standoffs between educational institutions and book publishers.

The National Post in Ottawa has carried an initial notice from the Canadian Press service, confirming, “The Supreme Court of Canada will delve into the issue of fair payment for the use of copyrighted works in the classroom. The top court agreed to hear the case in response to appeals from York University in Toronto and Access Copyright, which administers reproduction rights for published works, collects royalties and distributes them to copyright holders.”

Today (October 15), Access Copyright president and CEO Roanie Levy–you may have met her during one of our Publishing Perspectives Talks last year at Frankfurt–is quoted in media messaging from Toronto, saying, “Canadian creators and publishers have been deprived of fair payment by the education sector for almost a decade.

Roanie Levy

“COVID-19 has made the wound of not being paid even more painful.

“Our copyright system is not working. It is fraught with uncertainty and the federal government needs to roll up its sleeves and take immediate action.”

At issue is Canada’s bitterly contested Copyright Modernization Act of 2012, and as Access Copyright–English-language Canada’s officially mandated collective management organization (CMO) for reproduction rights (making it an RRO)–today writes, the Supreme Court’s agreement to hear the appeals “is another chapter in a decade-long struggle by creators and publishers to be fairly paid for the copying and use of their works by the education sector.”

By May of this year, the publishers were reporting that, “Amendments made to the copyright act in 2012 opened the door to illegal and systematic copying by the K-12 and post-secondary education sector, which has now accrued cumulative liabilities of more than $150 million (US$105.2 million).”

“Canadian creators and publishers have been deprived of fair payment by the education sector for almost a decade.”Roanie Levy, Access Copyright

Today, the Access Copyright staff writes, “As a result of the sector’s self-interpretation of changes made to the fair dealing sections of the copyright act in 2012,” the agency’s staff continues, “they adopted and have continued to follow copying guidelines that have resulted in hundreds of millions of pages of copyright-protected works being copied per year without payment.

“Both the Federal Court at trial and the Federal Court of Appeal determined these self-interpreted guidelines are not fair in either their terms or application.

“To date, Canada’s creators and publishers have been deprived of over $150 million in royalties owed to them by the education sector under tariffs approved by the Copyright Board of Canada that the sector has overwhelmingly refused to pay.”

If you’re just catching up with this remarkable case, we’ll have a quick background primer for you later in this article, based on the many stories we’ve produced over the years to cover the issue.

Access Copyright: ‘This Protracted Legal Proceeding’

On the Publishing Perspectives Talk stage at Frankfurter Buchmesse 2019, a panel on women’s leadership in publishing. From left are Jorunn Sandsmark, Roanie Levy, Mikyla Bruder, and Tracey Armstrong. Image: Porter Anderson

At this point, with Frankfurter Buchmesse’s digital evocation heading into its weekend–and Canada as its guest of honor–it’s worth pointing out that the trade show’s slogan this year, “Signals of Hope,” here takes on real meaning.

While the phrase has been used primarily to reflect the world publishing industry’s struggles and resilience in the face of the coronavirus COVID-19 pandemic, it can be applied here to a real-world indication that actual remedy may be ahead for a palpable problem that has meant major lost revenues for a market’s publishers and authors.

“At a time when our country is focused on economic recovery from the impact of COVID-19, our creative sector has been hit harder as a result of the education sector’s refusal to pay for the use of creators’ works.”Access Copyright statement

Canada returns in 2021 to Frankfurt in what organizers, exhibitors, and trade visitors hope can be a physically rendered edition of the world’s largest book publishing trade show.

It also has become one of the most compelling cautionary tales in the international book business: Ill-conceived or badly written legislation–in an age in which digital media dynamics have sorely tested many elements of copyright protection–can be misinterpreted, willfully or accidentally, at enormous actual cost to the industry, nothing “virtual” about it.

“This protracted legal proceeding,” the Access Copyright staff writes, “is reflective of a copyright system that users have badly broken. This wasn’t always so. Prior to the changes to Canada’s copyright act in 2012, through collective licensing and a functioning tariff system, educational institutions paid creators and publishers for the works they copied.

“At a time when our country is focused on economic recovery from the impact of COVID-19, our creative sector has been hit harder as a result of the education sector’s refusal to pay for the use of creators’ works.

“The federal government needs to take decisive action to remove any uncertainty surrounding our copyright laws and restore a well-functioning marketplace for copyright-protected works that is predictable and transparent where creators can be paid fairly and promptly.”

Background: Publishers ‘Frustrated and Disappointed’

Briefly, the disputes around the Copyright Modernization Act have to do with the scope of “fair dealing” (also called “fair use”) in educational settings in Canada.

“Amendments made to the copyright act in 2012 opened the door to illegal and systematic copying by the K-12 and post-secondary education sector.”Kate Edwards, Association of Canadian Publishers

Since the implementation of the 2012 act in 2013, universities in the English-language Canadian market have worked along the lines of a “10 percent” approach, which other educational institutions, including K-12 schools, have then adopted. In some university settings, instructors have copied up to 10 percent of a book, or a full chapter, and then distributed this copied material to students without a publisher’s permission and without paying a licensing fee, sometimes called a tariff.

This meant that no authors and no publishers were paid for this use of the material in question.

At the height of what turned into a furious standoff between educational entities and the publishers, all the school boards in Ontario and the ministries of education for all Canadian provinces except British Columbia and Québec filed a lawsuit in February 2018 against the government’s copyright collection agency, Access Copyright.

And what the Association of Canadian Publishers—which represents the Canadian-owned English-language houses—had seen as its greatest victory was a July 12, 2017, ruling in Access Copyright v. York University from the federal court of Justice Michael L. Phelan, who wrote in his decision that the Modernization Act’s guidelines as interpreted by York University were unfair and that tariffs (those licensing fees) certified by the country’s copyright board are enforceable.

Our full write on the court’s 2017 decision is here.

Justice Phelan wrote, in part, “The fact that the guidelines could allow for copying of up to 100 percent of the work of a particular author, so long as the copying was divided up between courses, indicates that the guidelines are arbitrary and are not soundly based in principle.

“York has not satisfied the fairness aspect of the quantitative amount of the dealing,” Phelan writes in his decision. “There is no explanation why 10 percent or a single article or any other limitation is fair. Qualitatively, the parts copied can be the core of an author’s work, even to the extent of 100 percent of the work.”

Thus, Phelan struck down the concept that York and other educational venues had cited, that of being able to “opt out” of paying licensing fees if they wanted to, fees which normally are covered by a several dollars per student per academic term. To accept that educational institutions could simply decide not to participate in the collection of funds federally mandated in the creation of Access Copyright would, the court wrote, certainly lead to economic damage to publishing.

“It is almost axiomatic,” reads the court’s conclusion, “that allowing universities to copy for free that which they previously paid for would have a direct and adverse effect on writers and publishers.”

The Springtime Setback: ‘The Untenable Position’

On April 22, a new decision from an appellate court said that the educational community had acted wrongly but that schools and universities are not required to pay the licensing fees certified by the copyright board.

Kate Edwards

This new decision, as described in media messaging from the association’s executive director Kate Edwards, asserted that while the “fair dealing” guidelines used by the Canadian education sector “do not meet the Supreme Court’s test for fair dealing, it did not uphold the decision that tariffs certified by the copyright board are mandatory.

“In essence,” Edwards said, “the decision reaffirms that the Canadian education sector has engaged in illegal and unfair copying on a systematic basis—and makes the prospect of enforcement for small- and medium-sized publishers impossible.”

In further comment on the situation, Edwards said that through the federally mandated collection agency, Access Copyright, “Canadian publishers have participated in the copyright board’s multi-year tariff process in good faith, and with an expectation of fair and reasonable compensation for the use of their content. The court of appeal’s decision on mandatory tariffs makes future engagement in this process futile, and leaves small- and medium-sized rights holders in the untenable position of pursuing compliance on their own, rather than through their collective.”

Announcing that the publishers association was “frustrated and disappointed” by this turn of events, the organization flatly called the Canadian market’s copyright framework “broken,” writing, “Amendments made to the copyright act in 2012 opened the door to illegal and systematic copying by the K-12 and post-secondary education sector. At the same time, amendments have limited statutory damages for non-commercial use to a point that enforcement is impractical. Urgent action on the part of the federal government is needed to implement reforms that will correct market damage and provide a policy framework that supports future investment in Canadian writing and publishing.”

Summing up the Association of Canadian Publishers’ position in April, Edwards said, “The education sector’s ‘fair dealing guidelines’ were unfair when they were adopted in 2012, and they were unfair in 2017 when the federal court ruled on the York case.”

At this writing, no date yet has been made available to the news media for Supreme Court action on the matter. We’ll update as more is learned.

More from Publishing Perspectives on Guest of Honor Canada’s planned Frankfurt events for this year’s digital edition is here. More from us on the Canadian market is here, more from us on the Copyright Modernization Act is here, and more on other copyright issues is here. More from us on the coronavirus COVID-19 pandemic and its impact on international book publishing is here.

And from international industry trends to curated guides to the many online events during this year’s Frankfurt Book Fair, our digital magazine offers you the information you need to make the most of the fair and the rest of 2020. 

Download your free copy now.

About the Author

Porter Anderson

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Porter Anderson has been named International Trade Press Journalist of the Year in London Book Fair's International Excellence Awards. He is Editor-in-Chief of Publishing Perspectives. He formerly was Associate Editor for The FutureBook at London's The Bookseller. Anderson was for more than a decade a senior producer and anchor with CNN.com, CNN International, and CNN USA. As an arts critic (Fellow, National Critics Institute), he was with The Village Voice, the Dallas Times Herald, and the Tampa Tribune, now the Tampa Bay Times. He co-founded The Hot Sheet, a newsletter for authors, which now is owned and operated by Jane Friedman.