About 100 school boards and education ministries are suing the federally mandated copyright agency in English-speaking Canada, saying they’ve been overcharged for authors’ copyright-protected work.
The Writers’ Union of Canada has wasted no time fiercely denouncing the lawsuit. Marjorie Doyle, who chairs the union, is on record saying, “This is an outrageous attack on Canada’s writers. Authors in this country provide extraordinary value to education and only ask to be fairly paid for their work.”
As we wrote in late December, the Canadian government’s mandated five-year review of the bitterly controversial Copyright Modernization Act, which took effect in 2013, has finally been activated. The hope among authors and publishers is that legislators will be rightly alarmed that the Modernization Act’s loose interpretation of “fair dealing” (called “fair use” in the States) has led to what publishers say is a loss to them and their authors of around $50 million annually in copyright revenue.
Rather than waiting for the outcome of the review, however, the education community has launched two new legal actions. They claim that the agency owes them refunds on copyright fees paid over the three years prior to when the Copyright Modernization Act went into effect.
Meanwhile, Access Copyright—the agency that collects copyright payments for authors and publishers—has been calling for universities and K-12 school boards to pay their fees for faculty and students’ use of copyrighted content for the past five years. Although Canada’s federal government chartered Access Copyright to collect about $2.50 per student per year, in exchange for which K-12 schools and universities can use copyrighted material in educational settings, the Copyright Modernization Act led the educators to think they could opt out of these fees.
And now they want refunds from before the Modernization Act was even implemented. In July, a federal court ruled that universities could not opt out of paying mandatory copyright fees per student. So are authors and publishers to give back copyright revenues collected in 2010, 2011, and 2012?
Doyle, at the Writers’ Union, is emphatic: “The Copyright Board has set a price for educational use of our work, and we feel this lawsuit from educational budget-makers is nothing more than their latest attempt to avoid legally determined costs. It’s a cynical tactic.” While the authors are standing their ground, the Association of Canadian Publishers is right behind them: “The ACP views this legal action launched against Access Copyright as a disturbing attack on Canadian publishers and Canadian creative workers,” says the association’s president, Glenn Rollans.
Bottom line: While few specialists we’ve talked with seem to think the school boards’ lawsuit has a chance of success, we think that one point of publishers’ response may be the most potent. Should the parliamentary five-year review and/or further court rulings favor authors and publishers, the teachers themselves potentially could be found to have committed copyright infringement. And it seems unlikely that the instructors want to be on the wrong end of a massive countersuit. Backpedaling may be ahead. Meanwhile, the strange, bruising fiasco of Canada’s Copyright Modernization Act is being used in many parts of the world as a big, flashing warning to those in other regions who think that weakening authors’ and publishers’ copyright protection is a good idea.
Jane Friedman has spent her entire career working in the publishing industry, with a focus on business reporting and author education. Established in 2015, her newsletter The Bottom Line provides nuanced market intelligence to thousands of authors and industry professionals; in 2023, she was named Publishing Commentator of the Year by Digital Book World.
Jane’s expertise regularly features in major media outlets such as The New York Times, The Atlantic, NPR, The Today Show, Wired, The Guardian, Fox News, and BBC. Her book, The Business of Being a Writer, Second Edition (The University of Chicago Press), is used as a classroom text by many writing and publishing degree programs. She reaches thousands through speaking engagements and workshops at diverse venues worldwide, including NYU’s Advanced Publishing Institute, Frankfurt Book Fair, and numerous MFA programs.
