January 2020 – The courts side with creators and order payment by March 9 2020
Unfortunately, despite a favourable decision from the courts, no payment was forthcoming and the appeal process began. This month, the matter heads to the Supreme Court of Canada.
Here is the complete and unedited release that was emailed to members:
TORONTO [October 15, 2020] – The Supreme Court of Canada announced today that it will hear the appeals of both Access Copyright and York University in the litigation between the two parties that began in 2013.
This decision is another chapter in a decade-long struggle by creators and publishers to be fairly paid for the copying and use of their works by the education sector. As a result of the sector’s self-interpretation of changes made to the fair dealing sections of the Copyright Act in 2012, they adopted and have continued to follow copying guidelines that have resulted in hundreds of millions of pages of copyright-protected works being copied per year without payment. Both the Federal Court at trial and the Federal Court of Appeal determined these self-interpreted guidelines are not fair in either their terms or application. To date, Canada’s creators and publishers have been deprived of over $150 million in royalties owed to them by the education sector under tariffs approved by the Copyright Board of Canada that the sector has overwhelmingly refused to pay.
This protracted legal proceeding is reflective of a copyright system that users have badly broken. This wasn’t always so. Prior to the changes to the Copyright Act in 2012, through collective licensing and a functioning tariff system, educational institutions paid creators and publishers for the works they copied.
At a time when our country is focused on economic recovery from the impact of COVID-19, our creative sector has been hit harder as a result of the education sector’s refusal to pay for the use of creators’ works. The federal government needs to take decisive action to remove any uncertainty surrounding our copyright laws and restore a well-functioning marketplace for copyright-protected works that is predictable and transparent where creators can be paid fairly and promptly.
“Canadian creators and publishers have been deprived of fair payment by the education sector for almost a decade,” said Roanie Levy, President & CEO of Access Copyright. “COVID-19 has made the wound of not being paid even more painful. Our copyright system is not working. It is fraught with uncertainty and the federal government needs to roll up its sleeves and take immediate action.”
If you haven’t done so already, we encourage you to get informed. Visit Access Copyright’s website or take the time to read the posts we’ve shared here with the timeline of this long and difficult road to prove our work is valuable and worth protecting.
In 2018 our Top Drawer blog Copy That! explained the situation with the ongoing court battle in Canadian courts over creative rights. We then updated you on the Review of the Copyright Act and brought you an update. As we enter 2019, here is the latest update as emailed to creatives by Access Copyright:
I’ve spent a large part of my professional life at Access Copyright. I’m often asked by publishers and creators what keeps me going, especially through the challenging times.
The answer is simple: it is my privilege to work on behalf of Canadian creators and publishers to make sure their rights and the value of their work are both recognized. In the last few years, workplace gurus have talked a lot about the importance of alignment between your personal values and your work. I feel like I’ve been blessed; this is meaningful work and I cannot imagine doing anything else.
During the question period, one of the MPs asked if there might be a middle ground, a way to protect writers and ensure learners in the public sector have access to high quality materials, given limits to funding.
It’s a question I’ve heard (and answered) many times. Sylvia’s response below truly gets to the heart of the issue.
This has been going on for close to five years. Different
schools opted out at different times. They believe now that they are entitled.
It will be very difficult. They have no knowledge of ever paying for
photocopying or for digitally reproducing materials.
We need to get the fines, the tariffs, in place, and then we
need to rein in this exemption.
Ms. Roanie Levy:
If I could add something, the system of collective licensing
was created precisely so that the entire book doesn’t have to be bought all the
time. It provides that means of accessing without having to pay the full price
of all books all the time for every student.
It’s also important to keep in mind—because I think
that because of all of the noise we hear about this and all of the efforts that
are made to evade having to pay—that we have the sense we’re talking about
incredible sums. In the elementary and secondary sector, we’re talking about
$2.41 per student per year. Then they could do the copying of their chapters
and their 10% to their heart’s content. It’s $2.41 per child per year, and the
ministers are still not paying.
In post-secondary, at most we are talking about $26 per
student per year. It’s the price of a pizza. In college, we are talking about
$10 per student per year. We’re not talking about sums that would bankrupt
anyone, that would add any true additional burden on students whatsoever.
Ms. Sylvia McNicoll:
May I add that while it’s just a pizza for them, it’s my
mortgage, my groceries, and it’s my car payment. Right now, it’s my dental
 Since 2012, educational institutions outside of
Quebec have refused to pay royalties under tariffs certified by the Copyright
Board of Canada. This action has deprived creators and publishers of an
important source of income. For example, under the current elementary and
secondary schools tariff, this non-payment results in an annual loss of $9
million in royalties for the copying of published works by K-12 schools.
Canadian creators and publishers have suffered under the education sector’s copying policies and practices. I believe politicians and policymakers in Ottawa understand the unintended, negative consequences the 2012 changes to the Copyright Act have brought about.
Now, as they prepare their report and recommendations, I hope they’ll remember Sylvia – and the thousands of writers and publishers who are in the same predicament – looking to make their next mortgage payment, book a dentist appointment or pay for groceries.
It doesn’t have to be this way.
The licence costs are minimal, but the resulting royalty payments make a significant and meaningful difference to Canada’s creators and publishers.
President & CEO
Access Copyright files submission to the Heritage Committee as part of its Remuneration Models for Artists and Creative Industries study
The submission outlines how copying policies enacted by the education sector after the passage of the Copyright Modernization Act have had serious consequences for creator and publisher income levels and proposes four concrete actions to address this critical issue: • Amend the Fair Dealing Exception to distinguish between individual and institutional copying; • Introduce the Artist Resale Right; • Harmonize statutory damages available to collectives; • Confirm tariffs set by the Copyright Board are and have always been mandatory. Our submission can be found here.
Access Copyright teams up for joint Copyright Act review submission
In December, Access Copyright was one of 34 organizations that came together to form The Partnership for the Future of Canadian Stories to represent those who create, read and care about Canadian stories. Collectively, the Partnership prepared an evidence-based analysis to correct misleading claims put forward by opponents of effective copyright to members of the Standing Committee on Industry, Science and Economic Development, and the Standing Committee on Canadian Heritage.
In December, the submission was filed with both the INDU and the Heritage Committees. Read it here.
The Partnership makes two recommendations to address the current reality facing creators and publishers and their ability to be fairly compensated for the educational use of their works:
• Clarify that fair dealing does not apply to educational institutions when the work is commercially available;
• Harmonize statutory damages available to collectives.
Lend your voice to support Canadian creators and publishers during the Copyright Act review
When creators speak, politicians listen. It’s important we remind the Heritage and INDU Committees of the negative consequences of the 2012 changes to the Copyright Act. It is also vital that they continue to hear this message while they write their final reports.
With this in mind, the I Value Canadian Stories coalition will launch a new letter on the I Value Canadian Stories website the week of January 21. We’ll send an email when it’s ready. It will take no more than two minutes to visit the site and send your letter in support of Canadian creators and publishers.
In case you missed it…Last fall, the I Value Canadian Stories campaign shone the spotlight on Canadian writers and visual artists. Check out the site’s Videos page to learn more about the work of creators like Andrew Pyper, Amy Stuart, Sky Gilbert, David Chariandy and Jennifer Mook-Sang.
Negative consequences of the Copyright Modernization Act in the media
Recently, CBC Radio’s The Sunday Edition (hosted by Michael Enright) and CBC’s The National covered declining incomes for Canadian creators and publishers. The segments addressed the unintended consequences of the Copyright Modernization Act for both communities.
We writers know the power of words to influence others. I can attest to that working on a political level for fifteen years in the communications field in provincial government. I saw how various letter writing campaigns influenced government ministers to consider, reconsider or revise policy decisions.
We also know that the issue of copyright is so important for all writers and artists, and a simple letter could make all the difference.
Below, we share with you the latest update from Access Copyright, sent out to all Access Copyright members on August 14, about the parliamentary review of the Copyright Act, and how you can help. Please read, share and submit your story to the members of the review committee. It matters for all writers and visual artists…including you!
Access Copyright Makes its Submission for the Copyright Act Review
Last month, Access Copyright made its official submission to the Standing Committee on Industry, Science and Technology for the Copyright Act review.
The submission details how creators and publishers have been severely impacted by the actions of the education sector following the passage of the Copyright Modernization Act in 2012 which included the addition of “education” as an allowable purpose under fair dealing.
Our submission makes two key recommendations to parliament.
1. Amend the fair dealing exception to distinguish between individual and institutional copying. We recommend amending the Copyright Act so that fair dealing for the purposes of research, private study and education would not apply to educational institutions in situations where works are “commercially available” by either a rightsholder or collective within a reasonable time and for a reasonable price and may be located with reasonable effort. This would help facilitate teachable moments without adverse consequences to rightsholders, while also bringing Canada in line with models in other countries such as the U.K. and Australia.
2. Take immediate action to harmonize the statutory damages available to collectives as part of the current efforts to reform the Copyright Board of Canada. Doing so will deter infringement, encourage settlement and, in line with one of the key goals of the reform to the Board, “will ensure creators to get paid properly and on line.”
How to get involved in the Copyright Act review
Here are two actions you can quickly take to ensure the momentum that creators and publishers have built in having their concerns heard by policy makers will continue.
Make a submission to the Industry Committee: The Committee welcomes submissions from individuals and businesses. A one-page letter outlining how your income, career or business has been impacted will help reinforce how Canadian creators and publishers have been affected by the 2012 changes to the Act.
Take Action via I Value Canadian Stories: If you haven’t already, please visit IValueCanadianStories.ca to send your letter to the Committee members conducting the Copyright Act review. You can also engage your friends and social-media followers to take part as well.
Every action you take makes a difference.
August 31 – The deadline for publisher affiliate to submit a claim for this year’s publisher repertoire payment.
November 1 – The deadline for event-grant applications for the Access Copyright Foundation. The application package will be available soon on the Foundation website.
November – Payback payments will be distributed to creator affiliates.
December – Publisher Repertoire payments will be distributed to publisher affiliates who submitted a claim by August 31.
Because we feel that the issue of copyright is so important for all writers, we have chosen to present the latest update on the parliamentary review of the Copyright Act received from Access Copyright in its entirety. This message was sent out to all Access Copyright members on May 25. Please read, share and submit your story to the members of the review committee. It matters for all writers and visual artists…including you!
If you are not sure what the review is all about, read our previous blog Copy that!that explains it all.
Roanie Levy, President & CEO of Access Copyright, appeared before the Standing Committee on Industry, Science and Technology on May 22nd, as part of the ongoing Copyright Act review.Watch Roanie’s appearance before the Industry Committee (it starts at 16:38:00 of the video).
The session was very well received and based on the nature of the questions that were brought forward by members of the committee, it is clear that the committee is beginning to appreciate that creators and publishers have been significantly harmed since the Copyright Modernization Act was passed.
The outcome of the session is a testament to the hard work that our community has been doing with the INDU Committee. The number of creators and publishers who have shared their personal stories during their recent cross-country tour have made an incredible difference by putting a relatable face to the problem, making it more difficult to ignore.
While this gives us all pause to feel encouraged, it is also critical that we bear down to double up our efforts and keep up the momentum. The opposition is pulling no stops and we can’t afford to either.
Make a submission to the Industry Committee
We encourage everyone to take the time to write a submission to the INDU committee.
Written submissions are meant to be brief and can be as simple as a one-page letter outlining your personal story of impact. They will help to keep reinforcing that Canadian creators and publishers have been hurt economically by 2012 changes to the Copyright Act and that the continued creation of Canadian content is at stake during this review.
The person reading the emails is Michel Marcotte, the clerk of the Industry Committee. The email should be addressed to him.
The email should include your address, email and phone number.
We recommend asking for confirmation of receipt of your submission.
Engage Through I Value Canadian Stories
If you haven’t visited IValueCanadianStories.ca recently, new letters directed at the Committee were added in late April so please take a moment to send one today. You can also get active on social media and encourage your friends to take part.
My Access Copyright notification came the other day to say that the Writers and Artists Payback Claim period for 1997 to 2016 opened on April 1 (closing date is May 31). I’ve also received several updates about the ongoing battle for creator rights in our Canadian Courts and what we as writers can do to help. The Writers’ Union of Canada (TWUC) also sent an update on the court cases and the advocacy they are doing.
I’ve watched my Access Copyright cheque shrink drastically over the last few years because of the education sector’s refusal to pay royalties, as has every other writer. Access Copyright and TWUC, along with other national writers organizations, are working hard on our behalf to address this issue, but ultimately, we the creators should also take action.
I’ll bring you up to date on the legal situation, and tell you how you can help.
What is Access Copyright?
Access Copyright is a non-profit, national organization representing Canadian writers, visual artists and publishers, and the work they create. Access Copyright also partners with similar organizations around the world doing the same thing abroad. Together they represent our creative works when it comes to those who want to copy and share those works in schools, corporations, governments and research situations.
Access Copyright manages the licenses and the collection of licensing fees for copied, shared and remixed content and passes those royalties on to the copyright holders. These royalties have traditionally formed around 20% of writers’ and 16% of publishers’ income. Advocacy around intellectual property is also an important part of the services Access Copyright offers to creators.
Background to the current court action
Prior to an amendment to the Copyright Modernization Act in November 2012 adding “education” as an allowable purpose under fair dealing, the education sector assured Canadian writers, visual artists and publishers they had nothing to be worried about and that this change would not impact their royalty income negatively.
Then in 2013 the ministries of education and post-secondary institutions walked away from long-standing licensing agreements. According to Access Copyright, over 600 million pages are now copied FOR FREE each year by that sector. Education’s new copying policies have devastated royalty income for creators and publishers resulting in a whopping 80% decline.
And it goes further: Course packs containing entire chapters of books, full short stories from collections and anthologies and shared online digital book copies have reduced primary book sales so that publishers receive less and, in turn, writers receive less in royalties from their publishers.
Taking the matter to court
Access Copyright felt it was time to take the matter to court. They sued York University for non-payment of mandatory fees (known as the Interim Tariff) and York counterclaimed that they did not have to pay because their actions constituted “fair dealing” under Fair Dealings Guidelines.
Finally, in 2017, the court ruled in favour of Access Copyright on both claims, but York immediately appealed.
Then at the end of 2017, the Federal Government launched a Parliamentary Review of the Copyright Act. There was now hope that the review would rebalance the law allowing creative professionals to earn the income they were due.
The big surprise, and disappointment, came in February of this year when most of Canada’s provincial education ministries and all of Ontario’s school boards launched legal action against Access Copyright.
It becomes vital now that we make our voices heard by the policy makers conducting the review, so that the legislation can be made stronger to ensure that creators are fairly compensated.
Watch and share this video to learn how present copying practices impact the creation of content for tomorrow’s classrooms, and create a value gap for creators.
Write a letter to your MP urging them to support creators during the ongoing Federal Parliamentary Review. Several of the sites listed in #1 have letter kits to guide you.
Make a personal submission, to the Standing Committees from both Canadian Heritage (CHPC committee) and Innovation, Science, and Economic Development (INDU committee) who have begun considering witnesses and submissions as part of the Parliamentary Review.
Tell other writers and urge them to get involved.
Want to learn more about copyright in Canada?
(links and explanations thanks to Access Copyright website)
Department of Canadian Heritage – Houses the Copyright Policy Branch which, in conjunction with the Intellectual Property Policy Directorate of Industry Canada, is responsible for formulating and implementing an integrated Canadian copyright policy.
Innovation, Science and Economic Development Canada – Houses the Intellectual Property Policy Directorate which, in conjunction with the Copyright Policy Branch of the Department of Canadian Heritage, is responsible for formulating and implementing an integrated Canadian copyright policy.