Copyright heads to the Supreme Court

Annual cheques from Access Copyright were distributed this week and so was a news release from the association.

Check out Writescape’s previous blogs about the long struggle that Access Copyright has fought of behalf of creators. Today we continue to keep you updated.

April 2018 – background to the legal struggle
May 2018 – the Parliamentary Review and Submission to the Industry Committee
August 2018 – How writers can get involved and help
January 2019 – update as we wait for a decision
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.

Update on the Copyright Struggle

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.

Image result for i value canadian stories 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 House of Commons has prepared detailed guidelines on making a written submission.

Image result for i value canadian stories Here are some basic things to keep in mind for a submission.

Address your submission to the “Members of the Standing Committee on Industry, Science and Technology”
As submissions will be posted online, they should not include personal contact information beyond your name.

For the email used to submit your submission (the email will not be posted with your submission):

Send to indu@parl.gc.ca.
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.

Copy that!

Gwynn Scheltema

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.

So what can you do to help?

Start by understanding the issue fully. Go online and check out Access Copyright, TWUC, I Value Canadian Stories and Focus on Creators.
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)

Copyright Act of Canada (last amended November 7, 2012)
Copyright Board of Canada
Canadian Intellectual Property Office – CIPO is responsible for administering patents, trademarks, copyrights, industrial designs and integrated circuit topographies in Canada.
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.

Tax tips for writing income

Gwynn Scheltema

A query arrived in the Writescape’s comments mailbox last week the gist of which was:

I self-published a book in 2015 and sell via Amazon.com. I received a form in the mail (1042-S Foreign Person’s U.S. Source Income Subject to Withholding). My Amazon book sales are pretty paltry (a whopping $277!). Must I report this on my Canadian tax return?

I answered in a private email, but thought that this question and others related to writing income may be on the minds of many Canadian writers preparing tax returns this time of the year, so below is the answer to this question and a few more tips about reporting writing income to get you started.

One of the many hats I wear, is that of a tax preparer at a local accounting office, which I have done for decades, so I do know a thing or two about filing Canadian taxes. And since 2009, Writescape has periodically offered a workshop on tax tips for writers and artists.

That said, a caveat: The tips offered here are general information only. Your tax situation could be influenced by other factors not dealt with here, so if you are at all in doubt, contact your accountant or follow the links to CRA’s website for more information.

What kinds of income are considered writing income?

royalties/ advances for book sales 9print/e-book) from your publisher (T5)
independent book sales, print and e-book, (possible foreign income slips )
grants, bursaries and residencies (T5 or T4A)
school visits and speaker honorariums (possibly a T4A)
access copyright royalties (T5)
public lending rights payments (PLR) (T4A)
freelance earnings (possibly a T4A)
workshops, coaching, retreat facilitation ( possibly a T4A)
writing contest winnings

How much do I have to make before I have to report writing income?

Canadian taxation works on the honour system. Even if you do not receive a T slip from the entity that paid you, you are obliged to report all your income from all sources worldwide. That includes sales through Amazon, PayPal, eBay and other websites, books sold at craft fairs, honorariums for being a guest speaker, etc.

Where on my return do I report my writing income?

That depends on whether you are, by Canada Revenue Agency’s (CRA) definition, a “hobbyist” or a “writer” operating as a small business. In VERY general terms:

a “hobbyist” reports T slip income on the lines instructed by the T slip. Generally, hobbyists do not deduct expenses, although deductions are allowed on some grants and scholarships.
a “writer” operating as a small business (with an expectation of profit), reports all income including income on T5s and T4As as part of business income on form T2125. (Be aware you may have to inform CRA by letter that you are doing so, so that they do not think you forgot to report the T slip income.)
any T4 income as a writer or editor is employment income and should not be reported as part of a writing business.

What do I do about income from outside Canada?

Foreign T slips you may receive include a 1042-S for the US or a SA103S for the UK.
Canadian residents must file worldwide income regardless of whether a return is required or not in the foreign country where the income was generated.
Double taxation agreements exist between Canada and many countries, e.g. the US. This means that if you paid tax on certain income in the US, you will not be taxed again on that income in Canada. CRA may, however, charge a difference between rates.
Foreign income must be reported in Canadian dollars. You can use the exchange rate for the date/s the income was received, or you can use the Bank of Canada average rate for the year.

Best for last

Most contest winnings are considered “prescribed prizes” and are not reportable or taxable. Yeah!!
Unlike employment income, writing business income and grants and bursaries can be reduced by expenses paid to generate that income. What expenses? That’s a whole other blog.

Useful links