At the end of July 2021, with extraordinary speed and marked by controversy, the Supreme Court of Canada (SCC) ruled on two appeals in the long-standing York University v. Canadian Copyright Licensing Agency (Access Copyright) case. The ruling was a disaster for Canada’s books sector. Seemingly unwilling to set precedent on the question of educational copying and infringement, the SCC declared that, as written into current law, tariffs set by the Copyright Board of Canada are not mandatory – releasing York from any responsibility to pay up. Given that analysis, the court also concluded that “there is no live dispute” between York and this country’s writers and publishers (who were represented by Access Copyright in the case).
Did York’s extensive copying infringe our copyright on a massive scale, as two lower courts found? We may never know. The infringement question has been shelved, and the job of clarifying the Copyright Board’s purpose sent back to Parliament. Of course, two weeks after the SCC decision was released, all parliamentary business was suspended for the federal election. Clarity would have to wait.
As an arts administrator and lobbyist, I found a lot to like in the election. Nothing to do with party affiliation (of which I have none), nor with the election result itself. It’s what was said on the campaign trail that offers a ray of hope. Ahead of the vote, the arts sector managed to extract crucial promises from the parties that now hold the most seats. For writers and publishers in Canada, this means critical funding increases to key supports including the Canada Book Fund and the Public Lending Right, as well as a commitment from the parliamentary majority to – finally – fix the copyright mess that has plagued our market for over a decade.
The Liberals somewhat vaguely promised to “protect Canadian artists, creators, and copyright holders by making changes to the Copyright Act,” while the Conservatives focused on specific recommendations already before Parliament that address educational copying directly. “Conservatives will recognize and correct the adverse economic impact for creators and publishers from the uncompensated use of their works in a manner consistent with the unanimous recommendations of the Heritage Committee of the House of Commons Report in 2019.”
The trick, of course, is to ensure these commitments make their way onto immediate legislative agendas and ministerial priorities. Immediate as in right now.
Ottawa has asked for patience from Canada’s writers and publishers since before the passage of 2012’s Copyright Modernization Act (CMA). At the time, we certainly knew amendments in the CMA were a disaster, but lawmakers asked for time to see just how big a disaster they would be. When the educational market for copying dissolved overnight and licence payments to publishers and authors nosedived, we were asked to wait and see if the market might correct on its own.
The market did not correct.
In 2013, with York University and Access Copyright in Federal Court, we were advised to wait for a legal decision to clarify matters. Then came the Federal Court of Appeals in 2017, and then last summer’s Supreme Court non-decision. Now, the only thing that’s been clarified is the weakness of Canada’s commitment to protecting the rights of writers. Patience may be a virtue, but after 10 years, it feels a whole lot like a bad habit.
It’s hard to characterize just how damaging the Supreme Court ruling is to the future of writing in Canada. The unpaid licensing bill, now in limbo, is close to $200 million – a sum of existential importance for a sector far too familiar with the poverty line. How did the amount grow so huge? Well, while writers and publishers waited, the education sector got real busy copying.
To be clear, the SCC did not say we aren’t owed this money; they just made it functionally impossible to collect it. As the law now stands, authors must sue individually and not through our copyright collective. All the legal work we already did through Access Copyright and The Writers’ Union of Canada, all the evidence gathered, all the arguments made under hostile cross-examination, all the years of delay and appeal, we now must repeat without the collective resources of our sector. This truly is a case of justice delayed being justice denied.
At a recent online forum discussing York v. Access, a straw poll was taken in a crowd of Canada’s copyright law experts. Overwhelmingly, they felt the Supreme Court got it wrong, and, just as forcefully, they felt Parliament must act to correct the problem.
No more waiting.
John Degen is executive director of The Writers’ Union of Canada (TWUC) and chair of the International Authors Forum (IAF) in the U.K., serving and representing more than 700,000 authors worldwide. He is a poet and novelist with three published books.