The Globe and Mail has recently published three misleading and seriously inaccurate opinion pieces about Canadian copyright law from authors who should know better, given their backgrounds. They are from Kate Taylor dated May 26, 2023and Hugh Stephens, July 15, 2023One might have expected better basic fact checking from what is supposedly Canada’s “national newspaper” and/or “newspaper of record” of conspicuous copyright canards.
Both authors advocate for changing Canada’s copyright law to impose potentially great mandatory costs on the post-secondary education (“PSE”) sector in favour the very controversial and arguably obsolete organization known as Access Copyright (“AC”), which purports to collect royalties for the reproduction of its members works by organizations such as governments and PSE institutions. Mr. Stephen’s opinion piece conveniently follows up just two days later on the announcement by Access Copyright (“AC”) that it was downsizing and restructuringThis all seems to be highly orchestrated by AC. And Yahoo News republished from Access Copyright.
Both the Globe and Mail and the National Post have failed to respond to my op-ed submissions. Maybe they both are myopically sympathetic to the copyright maximalists? Have these bastions of Canadian Main Stream Media (“MSM”) drunk too much of the copyright Kool-Aid? How independent or professional is the Canadian MSM anymore? The glory days of Canadian op-ed pieces in MSM sadly ended a long time ago.
AC has indeed seen its revenues drop since 2012 but falsely blames this on the purely coincidental amendment that year of the fair dealing provisions of Canada’s Copyright Act that added the word “education”. However, there is no factual or legal basis to suggest that this amendment has had anything whatsoever to do with AC’s deservedly declining fortunes.
The users’ fair dealing rights relied on by the PSE sector have been in place for more than a century since at least 1921 and have been affirmed and confirmed by numerous judicial decisions, including four from the Supreme Court of Canada since 2004. These include two from 2012 and one from 2021 that were not based on the 2012 amendment.
The Americans have seen “fair use” (counterpart to “fair dealing”) rights hardwired into their law since 1976 for “teaching (including multiple copies for classroom use), scholarship, or research…”. There is no reason for Canadian educators and students to be at a comparative disadvantage to their American counterparts, especially when American publishers are perhaps the main driving force behind AC. Moreover, Americans would choke at the socialist notion of “mandatory” copyright tariffs, which Canada’s Supreme Court categorically rejected in 2021 based in large measure on my submissions on behalf of the Canadian Association of Research Libraries.
Since 2012, the Canadian PSE sector has been on fair payments for authors by way of licences, acquisitions of print or digital material, and targeted procedures to ensure that deserving authors get actually paid. AC is arguably the worst possible vehicle to ensure such payments. Its non-transparent repertoire is mostly irrelevant in the PSE sector. Former U of T Dean of law Marin Friedland exposed the problems of AC’s methodology in 2007 and there has been no apparent evidence of improvement. The bottom line is that AC has long ceased to offer any useful value for its PSE licences.
The kind of changes that that AC and its supporters are calling for may very well be not only unwise but also unconstitutional. Education, as well as property and civil rights, are provincial jurisdiction. Freedom of expression is guaranteed by the federal Charter.
What Lies Ahead
We have just had a cabinet shuffle. Sadly, shamefully, and for no apparent reason other than cynical electoral optimization, the Hon. David Lametti, Minister of Justice, has been dumped out of cabinet by PM Justin Trudeau. While copyright was never directly part of Lametti’s portfolio, he was by far the most legally learned member of the current Government and Minister of Justice for a very long time. His potentially moderating and deeply informed influence will be missed. Ms. Taylor has implied that his expertise in copyright may have led to him being pushed from cabinet. She writes: “Coincidentally, another cabinet change might help get the job done. Publishing insiders have long suspected one roadblock was former justice minister David Lametti, known as a supporter of so-called users’ rights." Prior to his public service, he was a highly respected academic at McGill law school and certainly a leading expert in copyright, as I know from working with him on an important Supreme Court of Canada case just before he was elected in 2015 and even long before.
And we now have Pascale St-Onge replacing Pablo Rodriguez as Heritage Minister. Her CV will play out very well in Quebec, from whence all of Trudeau’s previous Heritage Ministers have not coincidentally hailed. She and Trudeau are plainly pandering to a Quebec audience first and foremost. However, if Minister St-Onge is well advised, she will realize that copyright law is not a Quebec based hill or bill to die on. She might wish to ask Sheila Copps, Sarmite Bulte, and others about that.
The other responsible minister, who actually should be primarily in charge of copyright law and policy, is F-P Champagne of Innovation, Science and Industry. He has apparently been missing in action on this file but remains in place in cabinet. He may be mindful that the copyright file is presumptively toxic and is best avoided, if possible, especially for someone who may have leadership aspirations. AC is now targeting him in a mass email to its affiliates, and doubtlessly directly.
Sadly, we will likely see policy on these issues dictated by “kids in short pants” at the PMO and even the apparently too politicized PCO – who have little or no substantive expertise and only care about politics and career aspirations. We could see a replay of Bill C-18 with some kind of bogus superficial “adjacent’ or “neighouring right” pretext for forcing a mandatory tariff for rights that don’t exist onto the PSE sector, to be paid for by Canadian provinces and ultimately Canadian students. The financial cost could be huge and the chill on Canadian education, research and private study ultimately even more costly. All this to enable Access Copyright to spend a fortune on salaries, lawyers, lobbyists – and to distribute what amounts to once-a-year lunch money to many if not most of its creator affiliates?
For better or worse, there is no sign that anyone, such as Google, is going to challenge the constitutionality of Bill C-18 in court, even though very credible commentators such as Konrad von Finckenstein and Phillip Palmer
Above all, the educational sector and other user groups need to step up to the plate. Universities Canada has failed to provide satisfactory leadership on copyright for at least three decades. Hopefully, this could change with a new president – but I’m not holding my breath. U of T’s revised fair dealing guidelines are a step backwards. Canada’s “U15” group of leading research universities needs to speak forcefully. We need to see the PSE academy and responsible smaller organizations with less resources but more insight, ability, and agility step forward and write their own op-eds (assuming the MSM might publish them), do their own effective lobbying (i.e. actually meeting with Ministers), and develop their own updated fair dealing guidelines.
Howard Knopf is a policy provocateur who, after 43 years, is no longer “practising law”. He has argued four very influential interventions in copyright cases in the Supreme Court of Canada. He is an active blogger on copyright and related issues and is an affiliate of Access Copyright.