Bill C-!! (or Two Court Cases and a Change of Law)

Last week, the Copyright Modernization Act (Bill C-11) came into effect in Canada. For years a large association of organizations, among them The Writers Union of Canada (TWUC) and Access Copyright (AC), have been calling attention to the "fair use for education" exception in the Act and the effect this will have on Canadian creators. As a result of two court cases and the educational exemption in the Act, some major universities (Queen's, York, Waterloo and University of British Columbia) have opted to not sign licensing agreements with AC this year. Many commentators, most notably Michael Geist, believe it is time for educational institutions to walk away from AC altogether. In theory all educational institutions, governments and businesses are still required to track down the rightsholders of all copied material and pay the appropriate fees, but the likelihood of this taking place in an equitable and timely fashion is extremely low. Last year AC paid over $23 million to their affiliate creators and publishers. According to Merilyn Simonds, Chair of TWUC, writers receive from AC an approximate average of $650 each year, with some writers receiving thousands. As the system in place to collect tariffs and pay royalties is further eviscerated, Canadian creators will see a dramatic reduction in income in the years to come.

So how did this come to pass? To begin with, the educational exemption in Bill C-11 has a basis in legal history. In 2004, a group of publishers took The Law Society of Upper Canada to court for providing photocopy services to researchers without paying licensing fees for the right to copy (CCH Canadian Limited v. Law Society of Upper Canada). The Supreme Court of Canada (SCC) unanimously decided that the Law Society's use of the material was fair and thus exempted from paying copyright fees to the publishers. The implications of this case were that a precedent was set for giving primacy to the rights of the user over the rights of the creator, but the court also developed a language for assessing fair use during this case. In brief, Chief Justice Beverly McLachlin stated that the scope of "fair dealing," especially as it applies to "research," should be determined by the purpose, character and amount of the dealing; the existence of any alternatives to the dealing; the nature of the work; and the effect of the dealing on the work.

This case identified for many creators and publishers in Canada the need for a stronger voice that would advocate for their rights in courts as well as the media. Despite its high administrative fees and the degree of control it wields in payment distributions to creators, Access Copyright is such an agency for Canadians. AC negotiates and receives copyright fees so that educational institutions (as well as businesses and governments) are able to legally copy and distribute Canadian materials. AC then pays royalties to creators and publishers through their Payback system, retaining a portion of their revenue for their Cultural Fund (1.5 percent) and Licensing Development Fund (25 percent) and occasional dividends to balance royalty payments throughout the affiliate group.

Following the CCH case, Access Copyright received queries from its member organizations about the fairness of paying fees for copyrighted materials used in educational institutions. In the same year, negotiations with the K-12 educational sector for a fair rate of compensation failed. By the fall of 2011, AC was simultaneously negotiating with elementary and post-secondary schools as well as the Association of Universities and Colleges of Canada (AUCC). The AUCC had requested the institution of a fee-per-use transactional licence rather than a blanket licensing fee, but the Copyright Board agreed with AC that this was nearly impossible to monitor and enforce in an age of digital dissemination. In an attempt to streamline the administration and also compensate creators for the proliferation of digital reproduction of materials, the AC then proposed an amalgamation of the various fees embodied in previous AUCC agreements: $45 per student annually rather than the individual fees which covered photocopying, course packs and new media uses in the classroom. The AUCC negotiated with the Copyright Board and a final annual fee of $26 per student was agreed upon by all parties.

Then in July 2012, another case altered the copyright landscape for Canadians. In the case of Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), Alberta school boards en masse sued for and won the right to distribute approximately seven percent of a text as supplement to their regular course material. Chief Justice Rosalie Abella (with McLachlin among those in quorum) used the CCH formula to determine whether or not the dealing was "fair" and decided that indeed it was. As Mekhala Chaubal stated in an IP Osgoode publication, the Alberta case is a landmark case for Canadian copyright legislation because the SCC decided that copies made by teachers for their students does constitute fair dealing, which set a precedent for similar cases in the future.
 
Concurrent to these legal battles and negotiations, Bill C-32, "An Act to amend the Copyright Act," was tabled in Parliament in June 2010. This proposed Act excluded, for first time, materials used in an educational context without defining clearly what was meant by "education."  A huge outcry reverberated through the nation, as groups such as AC, the Association of Canadian Publishers (ACP), the Canadian Educational Resources Council (CERC), COPIBEC, the Canadian Publishers’ Council (CPC), the Professional Writers Association of Canada (PWAC), the Writers’ Union of Canada (TWUC), among many others, galvanized to oppose the language of the bill. Their pleas were ignored, Bill C-11 was introduced as The Copyright Modernization Act on September 2011 without any change to the fair use exemption for educators, and from now on we will likely see a continued demise in what was an imperfect but functional copyright payment system.

Claire Grady-Smith graduated from Queen's Cultural Studies masters program in January, 2012, and lives in Kingston, Ontario. She is currently a freelance writer, artist and marketing consultant for Wintergreen Studios Press, among other clients.

Interested in Canadian copyright laws? Then you'll want to check out this excerpt from Canadian Copyright: A Citizen's Guide (Between The Lines) by Laura J. Murray and Samuel E. Trosow.