Wednesday, July 26, 2023

The Shrill Shrieking of Access Copyright and the Coming Copyright Confrontation

For the second time in recent weeks, the Globe Mail – supposedly Canada’s “newspaper of record” - has published highly misleading and embarrassingly over the top op eds from authors who really should know better, given their notable backgrounds. No doubt they mean well and aren’t beholden to Access Copyright – but their opinions are so over the top and poorly informed that they have a very bad look:

Kate Taylor, May 26, 2023

Hugh Stephens, July 15, 2023

Hugh Stephens’ opinion piece conveniently follows up just two days later on the announcement by Access Copyright (“AC”) that it was downsizing and restructuring.

And this, from the shrill Quill and Quire piece dated July 19, 2023.

First, let’s get some big misunderstandings (including what some might say are “big lies”, but I presume no deliberate intent to prevaricate or be mendacious) off the table. More detail follows below:

  • AC does NOT collect for the mainstream of creators whose works are used in the Post Secondary Education (“PSE”) sector. It is believed to mainly represent authors of Canadian literature, which is a fringe area overall in the curricula of the PSE sector. AC’s actual repertoire remains something of an impenetrable black hole. Full disclosure – I’m a member and earn enough for one very modest lunch a year – which is more than some serious academic friends of mine.
  • AC’s incompetence and inability to fairly distribute its revenues to its creators has been known and documented for a long time, most famously in the 2007 report by Martin Friedland, former Dean of U of T Law School. There is no apparent reason to believe that things have significantly improved since then.
  • The decline in AC revenues over the last 11 years had NOTHING to do with the 2012 legislation that added the word “education” to s. 29 of the Copyright Act. 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 countless judicial decisions, including four from the Supreme Court of Canada between 2004 and 2021, including the two of the 2012 “pentalogy” decisions and the 2021 York decision, that were not based the 2012 amendment.
  • The basic right of “fair use” (American counterpart to fair dealing) has been hardwired into US law since 1976, i.e. “teaching (including multiple copies for classroom use), scholarship, or research”. See 17 USC 107. There is no imaginable reason for Canadian educators and students to be at a comparative disadvantage to their American counterparts, especially when American publishers are a driving force – maybe even the main driving force - behind AC.
  • Since 2012, the Canadian PSE sector has been spending far more and far smarter on fair payment for authors by way of licenses of various kinds, acquisitions of print or digital material, and targeted procedures to ensure that deserving authors get paid. See this, for example, from CARL.  It’s just that AC is apparently the worst possible vehicle to ensure such payment. We don’t use a stagecoach anymore to get from Ottawa to Toronto – and there are no “mandatory tariffs” that require using one source or method of getting to there from here – especially via stagecoach.
  • AC was born and nourished by a sweetheart deal with the Federal Treasury Board in 80’s. It has been protected since then by the Feds the Copyright Board – but any justification for such protection, if it ever existed, has long expired.
  • The bottom line is that AC offers virtually no value at any price for its PSE licenses. And, of course, these “licences” are NOT MANDATORY.

Some History:

Once upon a time Access Copyright was known as CanCopy – until I and others inspired by former York University President Harry Arthurs - nicknamed it “Can’t Copy” – which was much more accurate.

My own blog is called Excess Copyright – a name inspired by Access Copyright.

Well, it seems that “excess” has not served Access Copyright (“AC”) very well. AC has excessively overreached with respect to:

  • Demanding excessive FTE payments for PSE students
  • Blaming the Conservative government for the 2012 (“Copyright Modernization Act” “CMA”) amendment that added the word “education” to the fair dealing purposes in the Copyright Act
  • Blaming the Liberal Government for not undoing this innocuous amendment, which has not resulted in any extension of users’ fair dealing rights not already explicitly blessed by three Supreme Court of Canada (“SCC”) decisions based on the law prior to the CMA
  • Purporting to have actual repertoire that is of any significance overall on the PSE system. AC’s actual repertoire – which is anything but transparent – is believed to consist mainly of Canadian literature. Such repertoire plays a minimal role in the PSE sector. Very few university and college graduates will ever be required to read Margaret Atwood, Alice Munroe or lesser literary luminaries in the course of their studies
  • Purporting to collect and remit payments for foreign repertoire
  • Refusing to meaningfully engage in transactional licenses, which are often successfully obtained from Acs overall more reasonable cousin in the USA, namely the Copyright Clearance Center
  • Barking noisily with no teeth to bite. Remember that AC has no standing to sue anyone for copyright infringement, since it is neither an assignee nor exclusive licensee of anyone. This was explicitly confirmed by the SCC in 2021 in the York case.

Once upon a time, AC was able to convince universities to hold their noses and pay a $3.38 FTE cost and offload the $0.10 per page “course pack” charge directly to students. Of course, paper course packs have gone the way of the horse and buggy. Moreover, the legally questionable “indemnity” that AC once offered that was an incentive to that dubious business model has long since been unavailable. I pointed out 24 years ago that AC never has been a licensed insurance company.

It will be recalled that for 2011-2013 AC wanted a mandatory FTE tariff to be set by the Copyright Board of (a) $45.00CAD for Universities; or (b) $35.00 CAD for all other Educational Institutions.

As AC excessively escalated its litigation strategy by then suing York University to enforce its “interim” tariff improvidently provided by the Copyright Board, from which no judicial review was sought due to the strategy of AUCC (now Universities Canada). While AUCC and York continued to spend money and go nowhere, some institutions realized that there was no need and no point in spending lots of money for little or no value. Ariel Katz started in his “hall of fame” and “hall of shame” list. He and I blogged at length about why tariffs should not be mandatory.

Ariel and I, along with a very smart young law professor named David Lametti, who later became Minister of Justice, made the prevailing arguments in the SCC in the 2015 case of
Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615, <> namely that:

[113] I find that licences fixed by the Board do not have mandatory binding force over a user; the Board has the statutory authority to fix the terms of licences pursuant to s. 70.2, but a user retains the ability to decide whether to become a licensee and operate pursuant to that licence, or to decline.

That message did not, however, sink in to AC, AUCC or York. Instead, after years more of unnecessary litigation, during which York unnecessarily and unwisely “bet the farm” on the very poor AUCC fair dealing guidelines,  the SCC finally made it sufficiently explicit that AC’s tariffs are NOT MANDATORY in the PSE sector or elsewhere. Naturally, where tariffs are de facto in contrast to de jure mandatory, e.g. SOCAN tariffs for radio and TV stations, users will still keep on paying and the Copyright Board will hopefully do a much better job than it has done in recent decades of adjudicating any disagreements quickly and correctly.

Fast forward to the landmark SCC York decision in 2021 wherein York University very nearly snatched defeat from the jaws of victory but finally after 8 years fully and frontally faced the “mandatory tariff” and brought in the highly charismatic and ultra competent barrister Guy Pratte to adequately make the argument, at least on the “mandatory” issue, that York had effectively sidestepped before.

With all due credit to Mr. Pratte, my client CARL deserves full credit for empowering me to make the finally prevailing argument that:

  • Tariffs aren’t mandatory
  • Because the tariff isn’t mandatory, there was no live controversy about fair dealing that required the SCC to look at the bad AUCC/Universities Canada/York fair dealing guidelines devised by AUCC’s counsel years earlier.
  • While not necessary, the SCC at our behest did comment on some of the more egregious errors in the Courts below, e.g. re aggregate copyright.

Ariel Katz made his own supportive intervention that helped carry the day, ably presented by Sana Halwani.

Americans would shake their heads in total disbelief at the notion of a “mandatory tariff”, which would be a poorly disguised Canadian subsidy masquerading somehow as an authors’ “right” – like that $0.29 per blank CD we are forced to pay due to Copyright Board impotence (to be charitable) to prop up another long due for extinction collective, namely the CPCC.

Canada throws billions in subsidies at Volkswagen & Stellantis that will likely go down the toilet even if the EV bubble doesn’t burst soon given the competition from far more productive and efficient sources in China, Thailand or eve the USA….

Warning for Ministers

Do not pander to noisy demands from Quebec, where the mantra that more copyright is always better has caused mischief and damage for decades. If the Quebec government wants to shovel money at COPIBEC, let them. There is no reason for this folly to spread throughout Canada at the federal level.

Speaking of the federal level, the kind of changes that that AC and its supporters are calling for may very well be unconstitutional.  Education and property and civil rights are provincial jurisdiction. Freedom of expression is guaranteed by the Charter. There are many other issues. Proceed at your peril.

Liberal governments have tended to pander to copyright maximalists. But this hasn’t always had good results in either policy or politics. Ask Sheila Copps and Sarmite Bulte, for example.

What Lies Ahead

The current campaign of Access Copyright – and its gullible and shrill supporters ranging from Kate Taylor and Hugh Stephens to the usual and much  less credible suspects – should be disregarded by Government as the highly orchestrated public interest scam that it is.

And now  – we just now have had a cabinet shuffle. Sadly, Hon. David Lametti – Minister of Justice – is out. While copyright was never directly part of his portfolio, he was by far the most legally learned member of the previous Cabinet – or any cabinet for a very long time. His potentially moderating influence may be missed. He was certainly very knowledgeable about copyright – and was, as noted above,  involved in the important CBC v. SODRAC case that resulted in an important SCC decision that led up to the 2021 York decision.

And we now have Pascale St-Onge replacing Pablo Rodriguez as Heritage Minister. Her qualifications for this job include that she is from Quebec, played bass in a punk rock band, is the first out lesbian minister in Trudeau’s cabinet and was Minister of Sport. That’s enough to play out very well in Quebec, which is ultra-important to this government. Meanwhile, Pablo Rodriguez – who has left her with a huge mess – remains Quebec Lieutenant and is now, inexplicably, Minister of Transport. If Minister St-Onge is well advised, she will realize that copyright law is not a hill to die on. She might wish to ask Sheila Copps, Sarmite Bulte, and others about that.

The other minister, who should historically be primarily responsible for copyright law and policy, is FP Champagne of ISED, who remains in place. H may be mindful that the copyright file is presumptively toxic and is best avoided at all costs, especially for someone who may have leadership aspirations.

We wait in trepidation to see what the PMO will tell these ministers to do in  new mandate letters. The unfortunate breakdown of the old cabinet system and the centralization of policy making in a politicized and non-expert PMO means that professional public servants – whose policy influence has declined precipitously since the days of Pierre Trudeau – will be of little significance other than to make the PMO’s wishes their command.

Above all, the PSE sector and other use groups need to step up to the plate. Universities Canada cannot be counted upon for leadership. It has failed badly on this file for three decades – and particularly in the most recent. U of T’s new fair dealing guidelines are a major step backwards and are disappointing to most informed observers in the PSE sector. The retirement of U of T’s former general counsel Steve Moate has been a setback for balance and leadership within the influential “U15” group of leading Canadian research universities.

In searching for a new President, Universities Canada now has an opportunity to show more competence and leadership on these issues than it has in the las in the last three decades or so. Let us hope that that the right person can be found. However, this recruitment could take a while and the resulting course correction much longer in turn.

We need to see the responsible smaller organizations with less resources but more insight and ability step forward and write their own op-eds, do their own effective lobbying (i.e. meeting with Ministers), and develop their own updated fair dealing guidelines. Their silence after that Kate Taylor travesty was deafening. I believe that I was the only one who stepped forward and that was purely in my personal capacity.

We need to see a response to all of these big lies. Otherwise, given the absence of any competent ministerial leadership, we could be facing an impending debacle.


 PS: A reminder that I was involved in litigation regarding Access Copyright and the CPCC for a long time. However, I am now “not practicing law”.