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By Porter Anderson, Editor-in-Chief | @Porter_Anderson
More Than CA$200 Million in Unpaid Royalties
Today, we include in our rights edition an urgent story that’s not focused on translation- and publication-rights deals but on a crippling copyright fiasco that has damaged a major publishing market for more than a decade. The news, arriving today (July 14), is not good. And copyright, after all, is precisely at the heart of every rights meeting, offer, and deal made across trading-center tables and borders the world over.
As Publishing Perspectives readers know, the story of Canada’s ironically named Copyright Modernization Act of 2012 has entered its 11th year. The act—like those parties taking advantage of it to utilize copyrighted material without payment—has crippled English-language Canadian publishers and authors, causing a loss of as much as US$151.3 million in lost licensing revenues.
The board of directors at Access Copyright—the collective management organization duly established by creators and publishers for English-language Canada—made the organization’s most alarming announcement yet, saying that it is initiating “a significant downsizing and restructuring of the organization because of the federal government’s decade-long inaction in fixing Canada’s publishing marketplace.”
The board’s statement confirms that “Canadian writers, visual artists, and publishers—an indispensable part of Canada’s culture—have been deprived of more than CA$200 million in unpaid royalties under tariffs certified by the Copyright Board of Canada.
“This staggering figure,” the board’s statement says, “is among the many impacts, including job losses and several educational publishers stepping away from the K-12 or post-secondary markets, that have hit Canadian creators and publishers since amendments to Canada’s Copyright Act were enacted in 2012.”
Degen: ‘A Blight on Our Country’
What the board of directors describes as “mass, systemic, free copying of creators’ works by Canada’s education sector outside of Quebec since 2012” has led to Access Copyright’s “total distributions to rightsholders dropping by 79 percent.”
“Access Copyright’s board of directors has made the difficult decision to initiate a significant downsizing and restructuring of the organization due to the federal government’s decade-long inaction in fixing Canada’s publishing marketplace.”Access Copyright
Despite the fact that Access Copyright, more than 30 years old, is “a key piece of Canada’s cultural infrastructure that Canadian creators and publishers rely on to be fairly compensated for the use of their work,” the government in Ottawa has not gotten around to addressing this fast-deteriorating situation, even after the national budget in April 2022 specifically promised relief for unpaid copyright holders.
The pertinent language in the federal budget pledges “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.”
This, the Access Copyright board members point out, “was a direct acknowledgment of the harm that the 2012 changes to the Copyright Act have caused and the need for legislative action to repair it.” And yet no action has materialized. “Creators nationally continue to wait for the government to make good on its commitment, and the marketplace for a viable Canadian educational publishing industry continues to dry up.”
Illingworth: ‘We Can’t Wait Any Longer’
This, of course, is among Publishing Perspectives‘ most closely and repeatedly covered story. Much of the world publishing industry has looked on in disbelief as the education system itself sued Access Copyright at one point, and as court rulings went in the agency’s and publishers’ favor and then against it—leaving a legislative remedy the only hope. By late 2021, Copyright Clearance Center‘s Michael Healy, one of the most influential voices in world copyright issues, told Publishing Perspectives in his annual year-end interview with us on copyright issues, “It’s clearly the end of the judicial road” in Canada.
Critics say that as much as Canadian Heritage—the cultural division of Canada’s federal framework—has been admired in many parts of the world in the past, the Canadian government appears not to care that its own legislative action has cratered its once-prized Canadian educational publishing industry.
John Degen
Speaking for the Writers’ Union of Canada, its CEO, John Degen, is quoted, saying, “The abandonment of Canadian creators and publishers is a blight on our country, and an international embarrassment.
“When the Copyright Act was amended to include a fair-dealing exception for education, the Liberals in opposition then expressed deep concern that it was likely to be exploited at the expense of creators. They were right; that’s exactly what happened.
“The government has promised to fix the gaps in the act many times, but we are still waiting for meaningful change. In the meantime, a key market has disappeared and, with it, countless Canadian stories.”
Jack Illingworth
At the Association of Canadian Publishers, executive Jack Illingworth—who this year has succeeded Kate Edwards in the position—says, “The regrettable, albeit predictable, news that Access Copyright’s Board is initiating a restructuring of the organization means that we are down to the wire for the federal government to make good on its promise to repair our broken marketplace.
“We can’t wait any longer for the government to do what is needed to support those we rely on to tell our stories.”
Laura Rock Gaughan
At the Literary Press Group of Canada, executive director Laura Rock Gaughan says, “The news that Access Copyright is downsizing is devastating to Canadian literary publishers, especially as there are solutions at the ready that would meaningfully address the current ambiguity in fair dealing and add clarity to fair compensation for the use of creators’ works.
“The federal government must stand up for Canadian creators and publishers. We are out of time.”
Christian Laforce
And in Quebec, Christian Laforce, the general manager of Copibec—the French-language counterpart to Access Copyright—says, “While Quebec’s educational institutions, unlike the rest of Canada, continue to be licensed, creators and publishers in the province have not been immune to the devastating economic impact of the 2012 changes to the Copyright Act.
“We join others across Canada in urging the federal government to address this long-standing injustice before it is too late.”
The Access Copyright board’s media messaging concludes with an open door: “Access Copyright continues to urge the federal government to work with the organization and the sector to prevent its collapse and avoid the harm that is on the horizon for the writers, visual artists, and publishers it represents.”
More from Publishing Perspectives on the Canadian market is here, more from us on the Copyright Modernization Act is here, more on other copyright issues in world publishing is here, and more on rights trading, its trends and issues, is here.
Publishing Perspectives is the world media partner of the International Publishers Association.
Comments
The $200 million in royalties is imaginary money. The Supreme Court of Canada was very clear in 2021 that the tariff was not mandatory and it isn’t surprising that educational institutions would try to find alternate legal ways of using copyrighted material such as licensing directly with publishers and using fair dealing. Ironically AC’s biggest mistake in the lawsuit was suing directly. It should have found a publisher to front for it like it did in the CCH lawsuit. That would have at least given it a fighting chance before the court.