Rights Edition: Yet Another Blow to Copyright in Canada

In Feature Articles by Porter Anderson

‘Leaving creators and publishers on their own to challenge infringement,’ a new court decision undercuts Access Copyright.

In Vancouver, February 24. Image – Getty iStockphoto: Eli Wilson

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

No ‘Meaningful Way’ to ‘Uphold Their Rights’
In the latest blow to Access Copyright—the beleaguered collective management organization established by creators and publishers for English-language Canada—the agency was ordered on Tuesday (February 27) by the Federal Court of Canada to repay what are considered copyright-fee overpayments made under a “continuation tariff” by the plaintiffs between 2010 and 2012.

According to a figure published by Karunjit Singh writing for the Canadian legal news medium Law360 Canada, this amounts to some CA$25.5 million (US$18.8 million) as well as pre- and post-judgment interest.

Access Copyright in a statement issued to the news media writes from Toronto of the court’s “extremely disappointing decision” in the legal action launched by the plaintiffs, which comprise provincial ministries and school boards of Ontario. Access Copyright’s position is that the court’s decision “reinforces the urgent need for the federal government to repair Canada’s broken copyright regime.” But with essentially no interest evident for years from Ottawa, the call for “long overdue reform” may have little hope of gaining traction.

The current ambiguity in the Copyright Act, as well as the inability for Access Copyright to enforce tariffs approved by the Copyright Board, have created a veritable ‘free zone’ for unlicensed educational copying in Canada.Access Canada

As Publishing Perspectives readers know, the story of Canada’s ironically named Copyright Modernization Act of 2012 has entered its 12th year, and the “CMO” at the center of the long-running saga—Access Copyright—has in that time downsized its staffing, moved to alternative quarters, and now is newly struggling to find any traction.

Access Copyright is not without supporters. The Literary Press Group of Canada (LPG), for example, has issued a call for government action “to protect the rights of creators and publishers” following the federal court’s ruling.

That group, in a statement provided to Publishing Perspectives, writes, “Evidence in proceedings before the Copyright Board showed that uncompensated copying in the elementary and secondary education [systems] alone amounted to more than 150 million pages per year. This doesn’t even include copying by post-secondary institutions. No wonder more than CA$200 million in licensing revenue (US$147.5 million) has disappeared during the last decade, with additional unknown lost sales.”

From Access Copyright: “In this case, the Federal Court found that the extent of copying in the schools was completely unmonitored, and the plaintiffs were in no position to know what licenses or other permissions they needed to clear copyright other than under a collective license from Access Copyright. Unlicensed copying continues to have a devastating impact on Canadian creators and publishers ability to create the Canadian stories that enrich classrooms, inspire students, and support academic achievement.”

And yet, there seems no signal that any part of the legislative apparatus in the Canadian government is willing to engage in this crisis.

‘The Current Ambiguity’

The Literary Press Group echoes Access Copyright, writing:

“Now, it is imperative that the government:

  • Amend the Copyright Act so that fair dealing only applies to institutions where a work is not commercially available under license by the owner or a collective;
  • Amend the Copyright Act to clarify that tariffs approved by the Copyright Board of Canada have always been enforceable against infringers of copyright-protected works subject to tariffs; and,
  • Amend the Copyright Act so that statutory damages are rebalanced to deter mass uncompensated copying by institutions.”

And from Access Copyright, we read, “When considered alongside the Supreme Court of Canada’s 2021 decision in the York University litigation, the Federal Court decision makes clear that Canadian creators and publishers do not currently have a meaningful or practical way to uphold their rights to their works. Moreover, the important role of collective societies in the administration of their copyright interests has been diminished, leaving creators and publishers on their own to challenge infringement of their work through individual cost-prohibitive lawsuits.”

The Literary Press Group, still rallying, writes: “It is time to restore meaning to the phrase copyright-protected works. It is time to ensure real protection of the rights of Canada’s creators and publishers.”

But the many publishing-industry professionals who have struggled to get the government’s attention and educators’ interest in this curious case of a major nation’s abandonment of its rights-protective regime seem to have few options.

Perhaps the most penetrating and clear-eyed commentary from the now-degraded Access Copyright this week is: “The current ambiguity in the Copyright Act, as well as the inability for Access Copyright to enforce tariffs approved by the Copyright Board, have created a veritable ‘free zone’ for unlicensed educational copying in Canada.”

A Programming Note on Copyright Issues

From left are Glenn Rollans, Maria A. Pallante, Dan Conway, and Nicola Solomon

The Canadian copyright crisis will be touched on during London Book Fair (March 12 to 14).

At 2:15 p.m. GMT, on March 12, four key players will join us when Publishing Perspectives moderates a Main Stage discussion, Copyright and AI: A Global Discussion of Machines, Humans, and the Law, an advanced-level conversation exploring the risks and opportunities within the rapidly evolving ecosystem in an era of artificial intelligence.

The session will feature:

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.

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.