Canada: ‘80% of our licensing income has simply disappeared’

May 7, 2018

Copyright is under review in Canada. This has come about because of a change to Canada’s copyright laws in 2012 which meant education was added as a copyright exception to the Act – which has resulted in some severe unintended consequences for authors. Similar proposals have been repeatedly recommended in Australia by the Productivity Commission and the Australian Law Reform Commission – and are still the subject of discussions.

The Writers’ Union of Canada’s Executive Director, the poet and author, John Degen recently made this presentation to the Copyright Review committee which details the impacts of such changes in that country.

Degan writes: “It is undeniable that there has been a copyright SNAFU in Canada. It’s taken many years to get to this point where our lawmakers are publicly acknowledging that unlicensed educational copying is causing real, measurable damage to our culture.

“The first step to a solution is always admitting that there’s a problem. I’m glad we’re now past that important point.”

Here is an extract from John Degen’s presentation to the Review:

“Canada’s authors have been waiting a long time for the Copyright Act to be repaired, and it has been a painful and expensive wait.

“I am an author. I’m here representing myself and the 2100 members of The Writers’ Union of Canada. I am also Chair of the International Authors Forum, which represents close to 700,000 writers and visual artists around the globe. The world’s authors are also watching this process with great interest and considerable anxiety.

“We now know that the 2012 imposition of “education” as a category of fair dealing has delivered none of its intended benefit, and has caused exactly the kind of economic damage many of us predicted. Students now pay more for their education, while teachers are less able to legally access works and much more likely to end up in court. Meanwhile, those who provide the work [that] education copies, Canada’s writers, have suffered a disastrous income decline. Fully 80% of our licensing income has simply disappeared because schools now copy for free what they used to pay for. These are facts that may be ignored by some, but they’re indisputable.

“Before the 2012 amendment, Parliament was promised ‘there will be no loss of income for people who are in the creative economy’. And that ‘the education system pays for licences and copyright, and will continue to do so’. These are direct quotations from educational testimony in 2011.

“Authors are regular guests in classrooms across the country, and many have personally witnessed beleaguered teachers photocopying an improvised, free “class set” of materials, sometimes entire books. This is happening. Despite all the education-technology promises and vagaries about disruption, open access, and the changing landscape, Canadian students continue to be fed a steady diet of photocopied and scanned excerpts from copyright-protected works.

“You’ve recently heard from educational representatives that they continue to pay copyright licences. To be clear, they continue to pay some licences; mostly for expensive foreign journal content. But they are not paying the reasonable and affordable collective licences of Canada’s commercial authors and publishers. Each year in Canada, over 600 million pages of published writing is copied for use in educational course packs, both print and digital – and the education sector is essentially claiming all of that work for free. That is the real-world result of education’s copying policies.

“Those same policies have been thoroughly discredited by York University’s copyright infringement loss in Federal Court; and yet they are still widely in use by school boards and post-secondary institutions across the country. Canadian schools and education ministries are now actually suing Canada’s authors, through our collective, in a desperate attempt to re-establish the ground they lost in the York case. As a result of all this, many Canadian authors have simply called it a day and stopped creating new works.

“I ask you – are these the outcomes Parliament desired in 2012?

“Canada’s authors embrace the future. We don’t fear innovation, disruption, or the natural evolution of the marketplace. We lead those things. We create mobile literatures and cross-platform, multi-media work that is stretching and expanding the definition of the word ‘book’ in exciting ways. I myself do most of my creative writing on my mobile phone.

“But we’ve all learned a lot about digital disruption in the last six years. The scandalous misuse of private data by online platforms is not unrelated to the crisis of unfair copying of creative content. Both arise from a “free culture” ethos that counsels taking first and asking for permission later (if at all).

“This devalues the work of creative professionals. Most other nations have wisely resisted the siren call of free culture. Canada, sadly, is the outlier.

“Right now, Canada’s writers and publishers have authorized and directed our collective to design a blockchain-enabled rights management system. That is real Canadian innovation; but it won’t succeed without a clear, strong law at its back.

“Authors are investors in education. Most of us have advanced degrees. We all pay taxes, and many of us are, or will soon be, paying our children’s tuitions. My own annual Access Copyright cheque used to go directly into my kids’ registered education savings plans. That’s pointless now. Our labour creates the content so often copied by our schools. We do not deserve this unfair dealing.

“The solution is simple and it’s truly fair. Remove education as a category of fair dealing, and require collective licensing for educational copying. The word “education” has been in the fair dealing section less than a decade, and all it’s done is cause damage and clog the courts. The existence of a reasonable, regulated, collective licensing structure is the access solution favoured by most of our global partners. It should be ours as well. Thank you.”

(You can also watch the full video of the testimony and questions here.)

© John Degen, 2018

Image courtesy of the Parliament of Canada