Copyright Act: A balance between user’s and creator’s needs
But where does the balance lie?
by Steven Sandor
(The following does not necessarily reflect the views of WestWord magazine or the Writers’ Guild of Alberta. Please send comments or responses to our WestWord editor at [email protected].)
It was the best of times; it was the worst of times. Professor vs. writer. Creator vs. educator. Artist vs. student.
The federal government’s new Copyright Act in 2012 only widened the gulf between educational institutions and writers when it comes to the issue of who should be compensated for their work, as well as how many times a creator should be paid. Six years later, as parliament’s Industry Committee reviews the Act, is the chasm now too large for us to bridge?
Those were some of the issues discussed at last week’s University of Alberta’s Fair Dealing conference—it allowed a glimpse into the educators’ side of the argument when it comes to copyright.
“We must do all we can to protect the fair-dealing provision,” was how Kathleen DeLong, Vice Provost and Chief Librarian, Learning Services at the U of A, opened the event.
Many Writers’ Guild of Alberta members are registered with Access Copyright, the non-profit organization that collects reproduction-licensing fees from educational institutions across Canada and then redistributes it to its members. As you may have noticed, the amount of your annual Access Copyright cheques has dwindled.
And that’s because, in the wake of the educational purposes exception that was part of the Copyright Act, many schools, from elementary to universities, balked at the prospects renewing licences that allow them to reproduce work of Canadian creators represented by Access Copyright.
So, Access Copyright went to the feds and was given license to issue a tariff, though many schools don’t see the payment of that tariff as mandatory—and still aren’t paying.
A smaller pool of money means lower payouts to creators. Schools argue that Fair Dealing’s education exemption gives them licence to reproduce percentages of works (for example, one chapter of a book that’s ten chapters or longer, or ten percent of a work, one magazine article per periodical). That’s led to lawsuits, more lawsuits and, likely, more lawsuits to come. Access Copyright took York University to Federal Court over its non-payment of the tariff and won. But York is appealing that decision.
Lisa Di Valentino, a Canadian who is now the law and public policy librarian at the University of Massachusetts Amherst, said at the U of A conference she was confident York would win the appeal.
“The decision misapplies the Supreme Court’s Fair Dealing analysis almost entirely,” she said.
Di Valentino said York suffered because it kept poor records of what was copied. She said publishers have complained of declining textbook sales and licences that weren’t renewed; but they need to accept that the nature of teaching has changed, that teachers are using the Internet and open-access material.
Just two weeks ago, Ministries of Education from seven provinces, including Alberta, and the three territories, plus school boards in Ontario, launched a suit against Access Copyright, claiming they were charged too much for their reproduction licences, and are looking to have the difference repaid.
So, now, there are two high-profile cases in front of Canadian courts where writers are suing teachers, and vice versa.
Di Valentino said that because Access Copyright offers nothing other than a blanket licence, it needs to take the blame for not providing more custom products to educators.
“They really haven’t offered anything that universities would want to have,” she said. “Universities were previously paying for things that they did not have to pay for.”
Can we make up?
That was a question that arose at the U of A conference. Should the battle between educators and writers have gotten to this point? With the courts now involved, is there any way to walk back to the table and, as suggested by several people at the event, work this out over pizza and beer?
Adrian Sheppard, director of the university’s copyright office, said if educational institutions from the pro-Fair Dealing side were to review their policies, they might trudge into the murky legal ground of suggesting they might be wrong.
“If we do a critical analysis of guidelines, are we playing into the hands of Access Copyright?” he wondered.
Di Valentino engaged in discussion with Douglas Hildebrand, director of the University of Alberta Press. Hildebrand said he worried the debate was setting up the Canadian writing community as “the big corporate bogeyman.” Writers who are making far less than university professors are painted as greedy.
“We shouldn’t necessarily set it up as a great divide,” he said. “There is a mutual meeting point.”
“The business model is getting a bit stale, and they [Access Copyright] have to offer more,” said Di Valentino “There needs to be a better model out there.
“There needs to be a dialogue. We want you to get paid, but there are some things you are not going to get paid for.… Taking it to court provides some guidance, but we’d prefer not to take it to the courts.”
She said writers should be working to get better royalty splits from publishers; a move that educators would support.
Degen vs. George
Chris George, CG&A Communications, is working for the Copyright Consortium, which represents all Canadian education ministries except Quebec. He lobbies for the pro-Fair Dealing side, and he urged those at the conference to seek out the MPs on the Industry Committee—including Alberta MPs Matt Jeneroux and Dane Lloyd.
The Industry Committee is reviewing the Copyright Act and may go as far as touring the nation and visiting Switzerland to see how EU law is working. George said the next five to six months are critical in the debate.
He said he hopes the feds find some other ways to support publishers than to change the Fair Dealing provision and bring back the fees and tariffs. “It [the feds] could support publishing industry in volatile times without changing the Copyright Act,” he said.
At the same time George was in Edmonton addressing the pro-Fair Dealing crowd, John Degen, president of The Writers’ Union of Canada, was in Ottawa meeting with the Senate Standing Committee on Foreign Affairs and International Trade.
“Any suggestion that the world admires Canada for its 2012 copyright changes is the result, I believe, of a very selective small sampling of opinions — a tiny classroom of like-minded theorists, perhaps,” Degen said.
“At The Writers’ Union of Canada, we administer and support programs that pay this country’s authors to visit schools, collaborate with teachers and present to their students. These programs are so popular and so desperately valued by front-line educators that our funding window for school visits essentially closes as it opens. Having provided that incredible value to our schools, we now find ourselves being sued by their boards and administrations for daring to expect payment for the core of our work, which is the writing itself. There’s really nothing to admire about this scenario. It should, and it does, embarrass Canada internationally.”
Meanwhile, back in Edmonton, George told his audience the purpose of copyright is to find a balance between users and creators; but it’s often defined as winners vs. losers. He said politicians hate the debate, “because it’s a no-win situation for MPs.”
Jeananne Kirwin, Q.C., author and copyright lawyer, is the former president of the Canadian Authors’ Association Alberta branch, said the Supreme Court has ruled that copyright is indeed a balance between the user’s needs and the creator’s needs.
“But where we disagree [with educators] is where does the balance lie?”
Just as George said it’s crucial for fair-dealing supporters to make their cases to the Industry Committee, Kirwin said it’s vital for writers to make their voices heard in Ottawa.
“The educational purposes exception is too liberal; it is not good for Canadian writing. What we will see is the loss of Canadian textbooks and more and more Canadian writers to choose a Plan B to pay the bills.” As in, not making writing the priority.
George said that after the review of the Act is done, “it will provide fodder for eventual legal action.”
So, more lawsuits. More years spent on fighting.
Fair Dealing guidelines from CMEC: copyrightdecisiontool.ca/fdg/default.aspx
Degen’s transcript (and video of his presentation):
University of Alberta copyright conference: ualberta.ca/copyright/about-the-copyright-office/news/2018/january/fair-dealing-week-2018—events
Steven Sandor is the editor of Avenue Edmonton and author of seven books, including the YA novel, Stick Pick, released this past autumn by Lorimer. He lives and writes in Edmonton.