Having spent years in the court system trying to regain copyright revenue for educational content, Canada’s publishers and authors now set their sights on Parliament.

By Porter Anderson, Editor-in-Chief | @Porter_Anderson
This story was originally published at PublishingPerspectives.com

Will Canada’s Educational Texts Come From the States?

The second decade of what might be the world’s most flagrant copyright fiasco well open on January 31 and February 1, 2022.

That’s when Pablo Rodriguez, minister of Canadian Heritage, will lead a two-day national summit of the nation’s arts, culture, and heritage sectors at the National Arts Centre in Ottawa. If you spot a delegation there that looks especially—and deservedly—impatient, fed up, and put out, it might just be book publishers, their authors, and other copyright advocates.

“It just feels like we very politely have waited, to be ignored. For 10 years.” That’s John Degen talking. He’s the executive director of the Writers’ Union of  Canada and chair of the International Authors Forum for writerly organizations, based in the UK.

When Degen refers to waiting for 10 years, our regular readers know exactly what he’s talking about. It’s Canada’s Copyright Modernization Act of 2012. And here at Publishing Perspectives, it’s one of the most intensely followed challenges we’ve covered in our specialization on the international publishing industry.

Degen is one of six specialists convened by Publishing Perspectives in a round-table interview to look today (December 8) at where things stand in the controversy that for 10 years has made Canada the unintended global poster child for badly crafted copyright legislation. The optimistically named Copyright Modernization Act has been crippling to English-language Canadian publishers and authors, representing a figure approaching C$200 million (US$158 million) in lost licensing revenues.

Joining us in our round table, in addition to Degen, were:

• Kate Edwards, executive director of the Association of Canadian Publishers
• Claire Gillis, chief business affairs officer at Access Copyright, the collective management organization established by creators and publishers for English-language Canada
• Samantha Holman, a board member of IFRRO and CEO of the Irish Copyright Licensing Agency, the collective management organization for Ireland
• Hugo Setzer, immediate past president of the International Publishers Association and CEO of the Mexico City-based publisher Manual Moderna
• José Borghino, secretary-general of the International Publishers Association

The Canadian English-Language Copyright Crisis

“There’s a real sense of resignation and even betrayal in the writing community in Canada,” Degen says. “There were tons of evidence brought forward by Access Copyright,” evidence of the damage being done to the sector, “and that was studiously ignored by the Canadian Supreme Court” when it failed last year to say that Access Copyright has the right to enforce royalty payments for copyrighted work.

“The removal of our collective rights was just devastating. It has to be Parliament at this point. It just has to be.” – John Degen, Writers’ Union of Canada

“The removal of our collective rights through this decision was just devastating. So it has to be Parliament at this point. It just has to be.”

Not only is the Canadian copyright crisis now called “the Canadian flu” in international book publishing circles but—for those who love silver linings—it’s believed to be working as a vaccination-by-example to help ward off similarly disastrous legislation in markets far from Canadian shores. For example, some observers surmise that when Cyril Ramaphosa, South Africa’s president, returned a copyright “reform” bill unsigned to Parliament in July 2020, he likely was influenced by the catastrophic effects of Canada’s 2012 Copyright Modernization Act.

Setzer was one of the International Publishers Association officers to testify in 2018 parliamentary standing committee hearings—as did Boghino, Degen, and Edwards. They and many others attested to the ruinous effects, however unintended, of the Copyright Modernization Act’s interpretation of “fair dealing,” also referred to as “fair use” in some markets.

This is the copyright exception, familiar in many publishing markets, that should allow for a controlled amount of copying of copyrighted pages for legitimate and closely defined educational purposes. It’s covered by a small per-student copyright licensing fee paid by a school or university system. It’s that per-student fee that becomes part of Access Copyright’s job to collect.

And while the French-language part of the country was able to find its way to an accommodation in 2018 between its own copyright management collective, Copibec, and Laval University, the much larger English-language part of the country has seen its crisis only deepen, with Access Copyright caught in the crossfire.

The ‘Fair Dealing’ Per-Student Fee

As the most of the Copyright Modernization Act’s amendments in late 2012–including the education exception to fair dealing–the per-student fee for elementary and secondary schools outside of Quebec was C$4.81 in the lower bracket for younger students. And it’s that fee that suddenly wasn’t being paid. As the new act was implemented, major educational institutions in Canada began interpreting the new law to mean that they could simply stop paying that fee and start Xeroxing and sharing content digitally without charge.

“It’s turned around completely. It’s as if we need to prove that they do need to pay something.” – Claire Gillis, Access Copyright

What publishers describe as some 600 million pages of content (based on court filings) were being copied—and still are—without a penny going to authors or publishing houses for them.

Probably the most acrimonious moment of the entire saga arrived in February 2018 when 94 Canadian school boards and education ministries sued Access Copyright. The lawsuits were an attempt to recoup per-student fees paid for three years prior to the implementation of the new act, never mind the newly halted streams of educational publishing revenue.

Anyone in world publishing circles who had ignored the growing crisis until then could no longer look away. Claire Gillis of Access Copyright talks about how the conversation suddenly “was turned upside down. It used to be about getting permission to copy things and to have access to content. Now, it’s turned around completely. It’s as if rights holders need to prove that they do need to pay something.”

Here were the English-language state-ordained educational systems of Canada suing a nonprofit copyright collective representing the creators and publishers for the legally established copyright fees required to pay the publishers and authors of the curriculum content used to educate Canada’s students.

And, Gillis points out, that per-student fee has been reduced to C$2.41 per pupil, almost half what it was in 2012. It’s still not being paid.

Canada’s Diminished Educational Content

Setzer, a publisher of educational material, himself, spoke of this in his testimony during parliamentary hearings in Canada. “One of the things I mentioned during those hearings,” he says, is that the misguided denigration of true “fair dealing” and payment in copyright “actually means that students won’t have the materials they need.

“Perhaps you’ll have children in Canada studying with books made in the USA or in the UK, but not by Canadian authors and publishers.”  – Hugo Setzer, Manual Moderno

“Canadian authors won’t have the incentives to write and Canadian publishers won’t have the incentives to publish those titles.  So perhaps you’ll have children in Canada studying with books made in the USA or in the UK, but not by Canadian authors and publishers. Which is really, really sad. They’re damaging the community they intended to help in the first place.”

Setzer speaks in one of the International Publishers Association’s 125th anniversary podcasts about the kind of covenant that’s represented by copyright. “It’s how value is returned to authors and publishers.”

But he points out that during the still ongoing coronavirus COVID-19 pandemic, the generosity of publishers who temporarily made materials available without additional licenses for educators to use online prompted some in the “information should be free” community to assume, “You see, it doesn’t cost anything anyway’—another way to attack copyright.

“Many people believe, ‘It’s easy to be an author, you just write something down in a book,’ he says.” But writing is in no way so easy, of course, and the authors “have to make a living from that. The same for publishers. We make a lot of investments, employ a lot of people. And copyright is the system that allows us to do this.”

Borghino, Setzer’s association colleague, underlines that one effect of the Canadian crisis is attrition: Educational publishers are having to leave the field entirely or switch to producing trade content.

The Association of Canadian Publishers’ Edwards says, “It’s not so much that they’ve packed up and left. There’s nowhere to go, right? These are Canadian publishing companies. They’re rooted in local communities. They previously were publishing for the school market and have shifted their focus to serve the trade.”

That means that what once was one of the most prestigious educational content-producing systems in the world is being, as Degen puts it, “frittered away.”

Famed for its “singular plurality,” as the Guest of Honor Canada program proudly proclaimed the national ethos at Frankfurter Buchmesse in October, the concept of an educational-content context being created for Canadians by Canadians in all their rich diversity is endangered.

And there are, of course, many sources of educational material all too happy to ship in their non-Canadian content, particularly from the States.

The Supreme Court Disappointment

Finally, in October 2020, there was hope that a Canadian Supreme Court decision on what the Association of Canadian Publishers calls this “broken copyright framework” would redirect the crisis, turn around the nonpayment of copying royalties on appeal to a 2017 federal court ruling in Access Copyright v. York University that had gone in favor of the established copyright regime.

“There are very few curriculum resources being published by independent Canadian publishers today and that wasn’t the case 10 years ago.” – Kate Edwards, Association of Canadian Publishers

Instead, as the publishers’ association’s Edwards put it in August of this year, “After nearly a decade of litigation, we find ourselves facing even greater uncertainty than when the copyright act was amended in 2012, and cannot repair the marketplace on our own. Bold leadership on the part of government is needed to clarify fair-dealing provisions, and to ensure that effective mechanisms for copyright enforcement are available to all rightsholders.”

As she describes it now, when the Supreme Court declined even to speak to the “fair dealing” element, the bottom basically fell right out of the scenario for publishers. Without the assurance that remuneration is forthcoming, the creative industry behind education simply cannot function.

“There are very few curriculum resources being published by independent Canadian publishers today and that wasn’t the case 10 years ago,” she says. “There’s just not the business case to invest. It’s really costly and labor-intensive to develop robust materials that will meet curriculum objectives. And without a return, the publishers have said, ‘We can’t publish for the K-12 market anymore. We’re going to focus our energy elsewhere.’”

Copyright Clearance Center‘s Michael Healy, one of the most influential voices in copyright today, 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.

“So, what are you left with but a legislative and parliamentary solution? That’s all that can be done now. I certainly remember in the years immediately following the 2012 act,” Healy said, “independent reports showing that smaller publishers were forced to close their doors. And I remember US publishers reported to be closing their north-of-the-border operations in the wake of the 2012 legislation.

“There clearly are both local and international casualties of that legislation.”

The Critical Role of Domestic Content

The Canadians we’ve spoken with for today’s story say they’re convinced, as Healy is, that the only way forward is toward a legislative fix.

They’ve been heartened to hear the copyright situation mentioned in campaign commentary by politicians in both the conservative and liberal camps prior to the September 20 election. There seems to be an understanding on the part of the newly forming government that something’s direly wrong in Canada’s copyright construct as it pertains to education.

“The schools’ licenses fund a considerable amount of investment in schools.” – Samantha Holman, Irish Copyright Licensing Agency

Holman, from her experience in Ireland, is especially clear on the sheer expense of trying to move forward any further on a judicial track.

“The money,” she says, “the cost of continued court cases would be far better off in the hands of the publishing business, creating new materials for K-12, than in the hands of the lawyers going to court. An extraordinary amount of money has been spent on this.”

“All around the world,” Borghino says, “people are talking about the Canadian situation. We have to stress to the Canadian legislators that they’ve got to do something about this. It’s no good dillydallying for another 10 years. They’ve got to do it now.”

There’s certainly no paucity of examples for what needs to be done, Holman in Ireland says.

“The fact that the Canadian Supreme Court didn’t talk about ‘fair dealing’ in the end—and didn’t actually proclaim the situation unfair—does prove that it works,” she says.

Such a “fair use” concept is something the court couldn’t counter “because it works in other countries, in all of the other Anglo-Saxon countries, in common-law systems.” It’s telling, then, she says, that the justices “didn’t go there.” She reflects on how in Ireland, “The schools’ licenses fund a considerable amount of investment in schools. Publishing creates domestic content for our young people, particularly the K-12 age group, who are inundated with international content all the time,” just as Canadian young people are.

“The importance of having local and domestic content for this is very important.”

Looking for the Legislative Launchpad

There’s no immediately apparent pathway, no mechanism by which the publishers and/or authors can forcibly trigger legislative action, themselves, but Heritage’s cultural sector summit at the end of January looks like a setting in which to get the ball rolling.

“We’re not asking legislators to ‘go backward.’ There are plenty of examples around the world. Examples of legislation that allows for some kind of ‘fair dealing’ within limits.”  – José Borghino, International Publishers Association

Now, clearly, is the time for the Canadian publishers’ and authors’ communities to work together and formulate—in advance—a push for attention to the issue at the summit, particularly if that event is meant to create an agenda for arts and cultural issues under the newly formed minority government led by the Liberals.

Prior to the summit, Rodriquez, the minister, is to hold meetings with arts, culture, and heritage workers in Vancouver, Edmonton, Winnipeg, Toronto, Montréal, and Halifax. If publishing’s people can organize effectively, Rodriguez might see “those copyright people” turning up at each stop to signal to him the urgency of the situation. Among the descriptors Rodriquez’s office has offered for the summit is that it’s to include “solutions for a sustainable recovery.” And it’s clear to anyone willing to look that the educational publishing sector in Canada cannot be sustained as things stand now.

“Both main parties,” Degen says, “appear to be on-side, so right now it’s a question of us focusing the Parliament on this issue, and bringing it to a vote.”

One part of the role of the International Publishers Association, going forward, is to reflect back into Canada the fact that the worldwide community is watching, aghast, at the growing catastrophe underway–and to offer ready guidelines which, as Holman says, are in place in many parts of the world.

“We’re not asking legislators to ‘go backward,’” Borghino says, remembering his conversations in Canada with legislators during the parliamentary standing-committee hearings.

“There are plenty of examples around the world. Examples of legislation that allows for some kind of ‘fair dealing’ within limits. We pointed them to places where this exists and functions and where authors get a hot meal at the table.”

What he and his associates heard back from legislators at the time, Borghino says, was, “But there’s a law case right now.” They stepped around the issue, evidently hoping the courts would solve it for them. That, of course, didn’t happen.

And even then, Borghino says, “We kept saying, ‘Well, why don’t you just change the law? Why don’t you do what legislators are supposed to do? Change the law so that everybody gets something from this. So it’s taken another five years, and I’m really glad to hear from Kate and John and others that we may be heading in that direction.

“But we just want it to happen as quickly as possible—before another snap election happens and we have to start all over again.”

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More from Publishing Perspectives on the Canadian market is here, more from us on the Copyright Modernization Act is here, and more on other copyright issues in world publishing is here.

Publishing Perspectives is the world media partner of the International Publishers Association.

More from us on the coronavirus COVID-19 pandemic and its impact on international book publishing is here.

This story was originally published at PublishingPerspectives.com