After months of hearings before parliamentary committees and 262 pages of resulting reports, damages to rights holders in Canada continue—and may go on a lot longer
The long struggle by authors and publishers to address the 2012 Canadian Copyright Modernization Act isn’t over, but it has reached a new inflection point that makes now a good time to revisit what has become the world’s most-watched copyright controversy.
As we’ve reported, this legislation took effect in 2013. It was written in such a way that many in the education field interpreted it to mean that virtually limitless copying and distribution of literature for students would be considered “fair dealing” (what we call “fair use” in the US)—and thus not require payment to copyright holders. Publishers and authors estimate that they’re losing $50,000 annually in copyright revenue; a five-year parliamentary review, mandated by the original legislation, is the likeliest chance for a reprieve.
Thus, the arrival in May of the first committee report raised a lot of hopes. Its recommendations included:
- amending the 2013 act to make it clear that fair-use exceptions shouldn’t apply when content is commercially available. In other words, if educational materials are there to be paid for, pay for them.
- strengthening the collection of copyright revenues by bolstering the federally mandated collection agencies, since the educational sector had challenged the right of such agencies to operate as they do.
The report also called for parliament to “review, clarify, and/or remove exceptions contained in the Copyright Act, ensuring that any exception respects Section 9 of the Berne Convention for the Protection of Literary and Artistic Works, to which Canada is a signatory.” These high-level recommendations aligned with what the publishing and writing community felt it needed, and it was assumed that, to at least some degree, these recommendations would be taken onboard by other committees.
But a second report was issued, from a separate and more impactful committee, which basically recommended that all parties involved get together and work it out. This is a less desirable suggestion, as the educational sector has been unwilling to enter meaningful negotiations. So when the second report recommends “That the Government of Canada consider establishing facilitation between the educational sector and the copyright collectives to build consensus towards the future of educational fair dealing in Canada,” that’s pretty good legislative-speak for, “This is too complicated for us; let’s make the people involved figure it out.”
In response, Roanie Levy, the CEO of Access Copyright (one of the copyright collection agencies) said, “Immediate action would have addressed the serious harm Canada’s writing and publishing industries have and continue to experience more effectively.” But she welcomes the fact that the second committee at least calls the educational system’s approach to fair use “questionable.” The brightest spot in the second report may be its suggestion that the collection agencies be given established damages they can collect for copyright fees not paid.
Bottom line: There’s one more wrinkle here that complicates things even further, and that’s timing. Now that the five-year review process is finally done, Canada is coming up on federal elections in October. That means the reports and their recommendations aren’t going to be addressed by the outgoing lame-duck government and might go into a kind of orphaned drift if the next government doesn’t want to wrestle with these issues and act on them. Canada’s long night in copyright limbo, in other words, may be far from over.
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.
