Here is my overview of the state
of Canadian copyright law developments at this time.
Bottom
Line:
Access Copyright (“AC”) and the
Association of Canadian Publishers (“ACP”) are on the warpath against Canadian
education. AC had planned a “day of action” on Thursday, October 6, 2022
(postponed “because of unforeseen
technical issues”) to “fix Canada’s Copyright Act”. (the
“Act”). Guess what? The Act isn’t broken
and doesn’t need fixing. As the Supreme Court of Canada (“SCC”) recently said in what can only
be seen as yet another consistent affirmation of users’ rights and setback for overly
zealous and self-serving collectives:
[5] I cannot
agree with the Board’s interpretation of s. 2.4(1.1). The Copyright Act does
not exist solely for the benefit of authors. Its overarching purpose is to
balance authors’ and users’ rights by securing just rewards for authors while
facilitating public access to works. When this balance is achieved, society is
enriched. Authors are encouraged to produce more works, and users gain access
to works which they can use to inspire their own original artistic and intellectual
creations.
Society of Composers, Authors and Music
Publishers of Canada v. Entertainment Software Association, 2022 SCC 30 (CanLII), <https://canlii.ca/t/jqgw0>
The
ACP has made dangerous and outrageous copyright recommendations in its recent
“Pre-Budget Consultations in Advance of the 2023 Budget”. These are:
ACP joins colleague associations in
recommending that:
● Fair
dealing for education should only apply when a work is not commercially
available under licence by the owner or a collective.
● The
Copyright Act be amended to clarify that tariffs approved by the Copyright
Board are enforceable against infringers of copyright protected works subject
to a tariff.
●
Adequate statutory damages must be available to all copyright collectives.
Of course, we know that
publishers and more recently collectives, despite their rhetoric, don’t necessarily care about the best
interests of creators and, indeed, sometimes act against such interests. Neither
the Copyright Board not the Courts have yet directly confronted the issue of
whether authors’ interests are adequately served by collectives. But this could
happen sooner rather than later as authors figure out how to deal directly with
users and bypass inefficient collectives and their law firms who too often seem
intent on making simple things very complex and prolonged. Is this recently reported
lawsuit by some Quebec songwriters against SOCAN the tip of a
potentially huge iceberg?
The victories of the PSE (post
secondary education) sector are in peril – not only because of AC and its
collaborators but because of sometimes unwise strategies in the PSE sector
itself. Recall this important analysis by Prof. Ariel Katz following York’s
defeat at the trial level in 2017: Access Copyright v.
York University: An Anatomy of a Predictable But Avoidable Loss. The
fact that the AC litigation against York was not struck down early on and had
to go the SCC and that York chose to bet the farm on a bad set of fair dealing
guidelines and risk a severe smack down overall on fair dealing does not bode
well for the future unless basic lessons have been learned – which is hopefully
happening but is not yet evident. York very nearly lost that litigation. Fortunately,
my brave client the Canadian Association of Research Libraries (“CARL”) and
Prof. Ariel Katz were very instrumental in saving
York from this fate – though it’s far from clear that all those
responsible for York’s strategy actually appreciate our work.
It seems clear that the PSE
sector needs to update fair dealing guidelines and to follow Justice Abella’s wise words in
the York decision:
[106] At the end of the day, the question in a case
involving a university’s fair dealing practices is whether those practices actualize the students’
right to receive course material for educational purposes in a fair manner,
consistent with the underlying balance between users’ rights and creators’
rights in the Act. Since we are not deciding the merits of the fair
dealing appeal brought by York, there is no reason to answer the question in
this case.
The process of updating and
actualizing is too important to be entrusted to any single organization. A way
must be found to assimilate all valid inputs. The U of T fair dealing
guidelines from a decade ago were developed in a cooperative collaboration
between usually contrasting viewpoints (Casey Chisick and I) under the wise
leadership of now retired U of T general counsel Steve Moate. I was pleased to
have been part of this process. These were, IMHO, the best fair dealing
guidelines to date and suggest a method and process of going forward.
Meanwhile, at the Government, the
Minister of ISED – who should be primarily responsible for the copyright file –
is apparently MIA – though his officials are still hopefully minding the fort.
The Minister of Heritage, who is
also responsible for two very controversial bills - C-11 and C-18 – has been
seduced by a dangerous mix of Quebec politics and sophisticated content
industry lobbying into thinking that great glory lies ahead in maximalist copyright
law revision. However, those who don’t know history are condemned to repeat it.
This Minister and his controversial Parliamentary Secretary have yet to learn
the lessons of their predecessors – such as Sheila Copps and Sarmite Bulte, who
did so much wrong when it came to copyright and suffered the consequences.
Better still, they should talk to James Moore and Tony Clement who managed to
get a lot right.
Access Copyright and its allies,
such as the ACP, are peddling what amount to Trumpian fictions and falsehoods about
fair dealing in Canada. AC’s income has dropped in the last decade but NOT because
of the addition of the word “education” to the fair dealing provision of the
Act in 2012.
AC’s income has dropped because AC
tariffs as certified by the Copyright Board are NOT MANDATORY – which Prof.
Katz and I have been saying for a decade, as many institutions came to believe,
and which the SCC has now TWICE confirmed. See also Canadian Broadcasting Corp. v. SODRAC 2003
Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR
615, <https://canlii.ca/t/gm8b0> brought to you by Prof. Katz, Prof. David Lametti as he then was,
and yours truly.
The word “education” was added
to the Act in 2012 after the Copyright Board and the Federal Court of
Appeal held, erroneously, that teaching and instruction were categorically outside
the ambit of s 29 and while an appeal of these decision was pending before the
Supreme Court. But when the SCC decided the 2012 Alberta case, without regard to the 2012
amendment, it corrected the error and affirmed that “education” has been part
of fair dealing even before the amendment, dating back to the fair dealing
provision as enacted in the UK act of 1911 and the Canadian act of 1921. There
is no court case yet that confirms that the addition of the word “education”
has expanded the ambit of research and private study. Copyright nerds may be interested in the factum, which proved to be very influential, that Prof.
Katz and I filed for the 2012 Alberta case in this
respect.
That said, even if, assuming (incorrectly), that
the list of allowable purposes was meant to be closed, it is arguable that
adding “education” may potentially add something that didn’t exist before.
While “education” is potentially capable of covering things
that research and private study may not cover, this doesn’t change the fact
that, as far as teaching practices at schools, colleges and universities are
concerned, these educational institutions can rely and apparently are relying on the holding in
the Alberta case without reliance on the fact that Parliament did indeed add
the “education” in 2012. Once again, and
for emphasis, the addition of the word “education” to the Act in 2012 is NOT
the reason why AC’s revenues have gone down.
According to
Universities Canada, Canadian universities “have spent
over $1 B in the last three years combined on purchasing library content – and
it’s increasing annually”. And that’s not counting colleges and K-12 schools.
These massive and increasing expenditures – more and more through electronic
purchases and licenses – better ensure that creators and publishers get paid without
having to depend on AC and its very inefficient distribution system, especially
for individual creators. BTW, I’m a “fly on the wall” member of AC and probably
more prolifically published than average. Last year, AC send me something like
$82.00, which is more than some widely published academics. But that’s hardly
enough to make me quit my day job.
AC’s most recent 2021
audited annual report describes the decline in revenues from
the educational sector over the last decade and acknowledges the court cases,
along with significant potential contingent liability for substantial refunds
and the litigation seeking refunds.
The federal Government has arguably
unnecessarily been paying many millions of dollars to AC since the 1980’s and
still may be doing so to a significant extent. It is hard to see how AC has much
repertoire of any possible interest to federal civil servants and what the Feds
may do with that material is very likely fair dealing in any event. Is this
more of a sweetheart deal than a rational arrangement? This is something that
requires further analysis and exposure. These payments may have helped to keep
AC on life support.
What Lies Ahead?
Currently, one hears that the
Government’s agenda is roughly as follows.
The Government is looking to develop
a legislative package for the spring of 2023 that could deal with some of all
of the following issues:
- Small radio station
liability
- Indigenous
concerns
- Crown copyright
- “Educational
copying” including:
- Fair dealing
- Should tariffs be
“Mandatory”?
- Licensing
- Statutory damages
Since there have been consultations
for years, there may not be much if any further formal consultations – though
that won’t stop the lobbying which will then become even less transparent.
The Government has already decided to
legislate a resale right for artists. This decision
is interesting, given that the US Congress has taken a pass on this following
an exhaustive 2013 study by the US
Copyright Office that raised concerns about the potential impact on the American art
market While some Indigenous artists may see promise in such a measure, there
are existing mechanisms in place that may be even more effective for most
living and less than famous artists – such as the long-standing certification
mark provisions under the Trademarks Act,
which are probably being under-utilized in this context. Also, Canadian art dealers will surely oppose such a measure – since there is a
concern that it would harm the art market and drive sales and resales
underground or out of the country. This issue is far from straightforward and not
likely to be a slam-dunk success for the Government.
The Government needs to get over the
notion and the unfortunate provision in s. 92 of the Act that copyright law
needs to be reviewed every five years. Such a perspective benefits only consultants,
lobbyists and lawyers. This has never been the approach in the UK, USA or
Canada – where decades have passed before major changes are made. As always,
the fundamental things apply as time goes by. New shiny objects don’t
necessarily need new shiny laws. For example, the American and Canadian governments
were very wise to resist that notorious and nonsensical attack on the VCR by
the late Jack Valenti on behalf of the American film industry in 1982 where he told a
congressional committee “I say to
you that the VCR is to the American film producer and the American public as
the Boston strangler is to the woman home alone.” Indeed the VCR ended up being
Hollywood’s salvation. But Valenti’s hysterical hyperbole set the stage for
cacophonous copyright confrontation for decades to follow, including from the
motion picture industry in Canada, and indeed up the present time.
If
the Act is to be re-opened at this time – which on balance is neither necessary
nor desirable – amendments should include the following that are simple and
long overdue:
- Clarify
that circumventing a TPM for fair dealing purposes and other exceptions is
legal;
- Clarify
that the list of fair dealing purposes in s. 29 is not exhaustive by including
the two simple words “such as” – as we have seen in the USA
since 1976;
- Making
term extension to life + 70 years conditional upon registration according to regulations
to be determined; and,
- Ensure
that fair dealing rights and other statutory exceptions cannot be pre-empted by
contract.
A
final thought and call to action. While there is lots of disaggregated data
about the vast sums of money being spent in the educational sector for print
and digital material, it would be very helpful if the post-secondary university
sector, at least, would provide global data for the last decade on such things
as:
- Amounts spent directly by students on traditional printed
books and e-books;
- Amounts spent by institutions on printed books, e-book
purchases and e-book licences;
- Amounts spent by institutions on site licences;
- Amounts spent by institutions on transactional licences; and,
- Amounts spent by institutions on OER development.
As
always, comments and copyright gossip always welcome on or offline.
HPK
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