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Provincial ministries of education file suit against Access Copyright for $27.5 million in fees

The copyright battle between the publishing industry and the educational sector has hit an ugly turn. On Feb. 16, the ministries of education for all provinces and territories – excluding British Columbia, Ontario, and Quebec – filed an action against Access Copyright, the organization that licenses content from publishers, authors, illustrators, and other content creators for third-party use.

The claim states that between 2010 to 2012, the K–12 educational sector overpaid fees to the amount of $27.5 million – or approximately $4.81 per student – for the copying of published materials in classrooms across Canada, based on the lowered tariff rate that went into effect in 2013. The Ontario ministry is not named in the suit, but is represented by its collective school boards. The B.C. ministry has filed its own suit but has yet to serve its own statement of claim. (Quebec collects fees via its own agency, Copibec.)

In March 2011, after Bill C-32/Copyright Modernization Act died following the federal election call, Access Copyright proposed an interim tariff, which was approved by the Copyright Board of Canada. The following year, the Conservative government amended the copyright law, expanding the fair-dealing provision for the purposes of education, parody, and satire. The education ministries and the Ontario school boards claim that since Jan. 1, 2013, they have been exempt from paying the copyright tariffs – which were set by the Copyright Board at a rate of less than $2.50 per student – and should be reimbursed for the higher rates paid between 2010 to 2012. Access Copyright estimates that the sector copies 150 million pages of copyright-protected works each year.

Glenn Rollans, president of the Association of Canadian Publishers and publisher of Brush Education in Edmonton, says that even though the issue has been simmering for a long time, the lawsuit itself came as a surprise. “I think it is really a strange, overt attempt to harass and intimidate the creative sector,” he says. “When you drag a group like this through the courts, it’s an aggressive move from the dominant position. You’re saying, ‘We have all the resources we need for endless legal process and we know you don’t, so this is us putting some muscle on you so that you’ll step in line.'”

The suit falls less than a year after Access Copyright won its 2013 lawsuit against Toronto’s York University over the institution’s fair-dealing practices. In his July 13 decision, Justice Michael L. Phelan enforced Access Copyright’s interim tariff over York’s own fair-dealing program, which allows 10 per cent of a copyrighted material to be copied and distributed for course work without paying royalties to its creator. Justice Phelan called York’s guidelines “not fair in either their terms or their application.” York is now appealing that decision.

“I think that post-York, one of the things that became clear was that tariffs set by the Copyright Board are mandatory. You don’t have the option to opt out,” says Rollans. “If they do proceed, I am very confident that Access Copyright would win  – and it really needs to – because it’s such a blatant abdication of a clear responsibility and law that any other outcome would be a disaster.”

John Degen, executive director of the Writers’ Union of Canada, calls the lawsuit “an extreme move,” and a symptom of a broken relationship between Canadian writers and the educational sector. “Anybody with kids from K–12 in Canada is fully aware of the abysmal state of educational-material funding in Canada right now. All the work we do to show our value, to get our work in front of students, and to have this be the tactic from the other side is quite appalling,” he says. “We put writers in classrooms to talk about the craft and even the business of writing. That’s an incredibly popular bit of programming. The great effect is the interaction between Canadian authors and teachers and students. A lawsuit and an economic attack like this really is a huge roadblock in terms of that positive programming. We’re still going to do it but the question becomes how long can we afford to?”

In 2017, Access Copyright estimated that its payouts to creators would drop to $5 million from $11 million the previous year, representing a 55 per cent decrease directly attributed to a reduction in revenue from the educational sector. Although Access Copyright cannot comment on the lawsuit, CEO and president Roanie Levy said in a statement: “We continue to remain open to engaging in a meaningful dialogue with the education sector to find a way to work together on this issue. Canadian students deserve the finest curated content to enrich classrooms and ignite a passion for learning. The professionals who create those works depend upon fair compensation so that they can continue to contribute outstanding Canadian content for our classrooms.”