On Friday 30 July the Supreme Court of Canada (SCC) issued its judgement in the York v Access Copyright case, deciding that certified tariffs are not mandatory in a blow to the collective administration of copyright in Canada. The judgement drew disappointed and critical reactions from authors and publishers, and mounting calls for urgent legislative reform to fix a broken system.
The Association of Canadian Publishers (ACP) reacted to the judgement with Ruth Linka, ACP President stating: “The SCC decision leaves Canadian publishers to navigate an increasingly challenging marketplace without the necessary legal tools to protect our investments in new educational materials, let alone encourage new investment. Resolution of the fair dealing issue is essential to our ability to continue to supply the K-12 and post-secondary markets with Canadian-specific resources that tell our stories, use our language and measurement systems, and reflect the Canadian experience.”
The ACP statement underlines that the SCC decision reinforces the view that Canada’s copyright framework is broken. Amendments made to the Copyright Act in 2012 opened the door to mass and systematic copying by the K-12 and post-secondary education sector. The sector’s uncompensated copying beyond the legal limits of fair dealing, as determined by the Copyright Board, is currently in excess of CAN$150M. At the same time, amendments have limited statutory damages for non-commercial use to a point that enforcement is impractical. Urgent action on the part of the Canadian federal government is needed to implement reforms that will correct market damage and provide a policy framework that supports future investment in Canadian writing and publishing.
“Canadian publishers have been told consistently by successive governments since 2012 to be patient and to let the Courts decide on the question of fair dealing for education,” said Kate Edwards, ACP Executive Director. “After nearly a decade of litigation we find ourselves facing even greater uncertainty than when the Copyright Act was amended in 2012, and cannot repair the marketplace on our own. Bold leadership on the part of government is needed to clarify fair dealing provisions, and to ensure that effective mechanisms for copyright enforcement are available to all rightsholders.”
The Canadian Publishers Council (CPC) also reacted strongly, with President David Swail stating: “This SCC decision does nothing to clarify the intended purpose of the Fair Dealing exception introduced in 2012. We are left with the court’s refusal to bless the education sector’s Fair Dealing guidelines, while Canadian creators – writers, artists, illustrators – continue to be deprived of fair compensation for their work. Cleary the onus is on this government to act to clarify its intentions.”
CPC Chair Marlene Olsavsky added: “For years on end we have been urging the federal government to act to improve flawed copyright law, and the SCC decision reinforces how undervalued the market for high quality creative work in the educational sector has become. For the sake of the writers and artists whose work is being copied without compensation, we ask the federal government yet again to take action on their own recommendations outlined in Shifting Paradigms [the 2019 report by the House of Commons standing Committee on Canadian Heritage].”
Access Copyright President and CEO, Roanie Levy reacted: “Canadian creators and publishers spend countless hours shaping and building the published materials that inspire students. Educational institutions should be setting an example by respecting the work of others by fairly compensating creators for the use of their work. Instead, they have chosen to refuse to do so for almost a decade now. There are no winners with today’s Supreme Court decision: we will all have fewer stories that speak directly to us as Canadians and chronicle our shared reality.”
The Writers’ Union of Canada (TWUC) expressed its profound disappointment at the outcome with TWUC Chair, Rhea Tregebov, stating: “It’s immensely frustrating to learn of this decision, which is based on technicalities rather than justice. This outcome demonstrates a completely blinkered understanding of the issues at hand. Writers are at a huge disadvantage when defending our rights in court, and the Supreme Court is essentially telling us we have to start all over again. It’s unconscionable.”
“The Supreme Court might have applied a very badly needed bandage here,” added TWUC Executive Director John Degen. “Of course carefully worded legislation is ultimately up to Parliament, and we will continue to work with lawmakers on that. But by focusing solely on abstract technicalities, the SCC ignored crushing damage to one of Canada’s most vulnerable economic sectors. It leaves writers with no workable legal remedy and, in fact, endangers regulatory structure for all professional creators.”
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