Copyright in Canada Today

Date: 12th June 2018

By Steven Sandor

 

It might be easier to break the ice with a stranger by bringing up the topic of hemorrhoids than it is to start a discussion with a writer about copyright law.

Yup, copyright. Can anything possibly be more boring? Oh, you’re going to tell me about government reviews and court actions! I bet you didn’t think I could make this worse.

I’m not going to lie. Copyright isn’t exciting. But it means a lot to every writer who wants to get paid. And by that, I mean, every writer. And, we’re in the midst of a critical time for Canadian writers; the federal government begins its review copyright legislation and there are two major lawsuits in front of the courts.

Basically, there are three different balls being juggled right now. Each issue on its own could have a major effect on how you get paid. All three together… for copyright geeks like me, it’s like a Rush show, a Star Trek marathon and a comic-book convention all in one place.

Access Copyright — the organization that collects revenue from institutions that copy and distribute licensed, published works in Canada — held its annual meeting in Toronto near the end of April. I represented AMPA at the meeting.

(By the way, you are a member of Access Copyright, aren’t you? If you have a freelance magazine article published in Canada, or have contributed to a book or a newspaper, you’re eligible to collect funds. All you have to do is sign up.)

Here’s a breakdown of what was covered at the conference: This is about how writers are getting paid now and (possibly) in the future.

1. Lawsuit the First

Before Stephen Harper’s government, ahem, “tweaked” Canadian copyright law, we had a fairly straightforward system in place. Universities and schools paid into a pool. In exchange, they could copy Canadian works and use them in lessons, reading lists, etc. Access Copyright then divided that money amongst its members.

But, when the Copyright Act was changed in 2012, the concept of “Fair Dealing” was emphasized. School boards and university administrators argued that the new provision allowed them to copy some portions without having to pay the blanket licence fees. So, the Access Copyright payment amounts dwindled.

During the conference, this number was tossed out: That the fees from educational institutions has dropped by 89 per cent from 2012-17.

Access Copyright responded by suing York University. The federal court ruled in favour of Access Copyright, and ordered that the school make its back payments and honour licensing fees in the future.

Of course, York appealed. That process is still underway. It could take years for the case to get to the Supreme Court — if the Justices decide to hear it, that is.

Claire Gillis, the chief business affairs officer for Access Copyright, admitted that York has nothing to lose. There is no penalty for not paying out right away. If the appeal is lost, there is no difference in what the school has to pay, no matter if the cheques was cut in 2017, or in 2021. So, everything sits, and relationships between writers and universities gets all the more frosty. Remember that this is a symbolic case; York represents the interests of many universities and colleges that support the changes made to the Copyright Act. (For example, the University of Alberta hosted Fair Dealing Week earlier this year, a series of events that saw educators get together to discuss how to preserve the non-payment, “fair use” provisions of 2012.)

Gillis said that Access Copyright would like to see changes made to the tariffs that would allow the organization to charge penalties for non-payment. So, in a case like York’s, if the school holds out and loses, it would need to pay a larger fee down the road. Basically, there needs to be a cost for trying to stare down the request for payment.

 

2. Lawsuit the Second

Earlier this year, ministries of education in eight provinces, including Alberta, joined Ontario school boards in a lawsuit targeting Access Copyright. That’s currently down to seven provinces, as delegates at the April conference were informed that British Columbia had just filed a notice to discontinue its part in the suit.

How this lawsuit came to be is, well, a perfect example of how slow government can work.

In 2009, a tariff that determined how much money school boards paid to Access Copyright expired. So, of course, it was time for the Copyright Board to issue a new one for 2010. It didn’t come. So, the boards paid Access Copyright what they paid in 2009. Then, 2011 came, no new tariffs had been set, so the 2009 rates were paid that year, too. Same thing for 2012.

Then, as of 2013, many of the school boards stopped paying.

Finally, in 2016 (2016!) the Copyright Board comes along with its new tariffs — retroactive to 2010. Imagine for a second, that you buy a car, but don’t actually find out how much the car is worth till six years after you made the first payment. This is basically how government works.

To make matters even more confusing, the 2010 rate was cut in half — in 2016. So, the ministries and boards of education are arguing they overpaid for 2010-12, and want the difference back.

Access Copyright argues that, because the educators stopped paying in 2013, it can keep the excess to cover non-payment for the years that followed — and, in fact, is still owed more.

“They’re acting now as if the (tariff) decision doesn’t apply to them,” Gillis said.

In fact, Access Copyright will argue, that by demanding a refund for overpayment, the school boards are indeed offering an admission that rights fees need to be paid. It will argue that, by asking for a refund for 2010-12, the school boards are basically admitting that copyright fees are still valid. So, in response, Access Copyright plans to ask — “where’s the payments from 2013 on?”

 

3. The review

When the revised Copyright Act was passed by the Harper Tories, there was a promise that the federal government would review the legislation five years down the road.

That time has come, and the Writers Union of Canada and Access Copyright have sent members to Ottawa to speak to parliamentarians, and are active in workshops that are being held across Canada (though, none, sadly, in Alberta). The Copyright Consortium, a lobby group representing all of the Canadian education ministries save for Quebec, is lobbying on behalf of fair-dealing proponents.

Alberta MPs Matt Jeneroux (Edmonton) and Dane Lloyd (Sturgeon River-Parkland) are part of the multi-party Industry Committee that will be helping with the review.

Access Copyright is asking writers to talk about the importance of their work with the #IValueCdnStories hashtag, which in turn supports the organization in its battle to have copyright laws changed.

 

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