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, 2023, August 2, 2023 and Hugh Stephens, July 15, 2023. One 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 restructuring. This all seems to be highly orchestrated by AC. And Yahoo News republished a pathetic press release 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 spending far
more and far smarter 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, on its website, 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 have done so in writing.
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.
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