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The future of Access Copyright and the dire implications for the Canadian publishing industry

In a clearly worded statement released on July 13, Book Publishers Association of Alberta executive director Kieran Leblanc addressed the federal government directly about the problems that have been plaguing creative industries for the past decade and now threaten the viability of the Access Copyright: “We are at the end of the road, here. We need you to act. We need you to fix the Copyright Act immediately, before we reach a place of no return.”

“I’ve never written a statement like I did last week,” Leblanc says.

Earlier that same day, the Access Copyright collective announced that due to ongoing revenue losses the organization’s board has begun considering how to downsize and restructure the collective.

According to Roanie Levy, Access Copyright’s president and CEO, the details of what the restructuring will look like are still being ironed out. But however many jobs may be on the line and whatever shape the new configuration takes, Levy is adamant that it will not be beneficial for the organization, or for the industry as a whole. “The restructuring will have an impact on the ability of the collective to be effective at monitoring and ensuring compliance with copyright,” she says. “It will have an impact on our advocacy efforts, it will have an impact on our tariffs and litigation and what we’ve been doing on behalf of creators and publishers.”

The problems stretch back more than a decade. When the Conservative government passed the Copyright Modernization Act in 2012, they included a broad definition of fair dealing as it applies to the educational sector. The consequence of this has been rampant, systematic copying and distribution of copyrighted materials to students without institutions paying the Access Copyright licensing fee. Access Copyright estimates that the cumulative losses to the publishing and writing community since 2012 amount to $200 million in unpaid royalties. Since 2012, Access Copyright has seen royalties collected from the education sector decline by an astonishing 92.3 per cent. “As a result of that, we’ve been running the organization in the red for the last seven years,” Levy says.

“When you look at Access Copyright’s financial reports, you can see a straight line down since 2012,” says Laura Rock Gaughan, executive director of the Literary Press Group. “Our members have seen declining revenues that used to be a fairly steady stream. We don’t even know how many unsold books have resulted from this. We’re just talking licencing revenue.”

All of this is significant because Access Copyright acts as a watchdog and royalty collection agency on an industry level in ways no individual writer or publisher could hope to replicate on their own. “Those services are vital because without them, a publisher and a writer and an illustrator has to figure out who’s using their work, when, and how to get paid for it,” says Gaughan. “The collective sidesteps all that.”

This is especially important for small and regional presses that don’t have the practical ability to track where and how their writers’ work is being used. “My members do not have the bandwidth nor the resources to be able to negotiate with every school system or post-secondary institution in the country,” says Leblanc.

Access Copyright suggests in a backgrounder that annual licences for the educational sector would amount to no more than $14.31 per student at the post-secondary level and $2.41 per student at the K–12 level.

The Liberals have known about the problems with the Copyright Modernization Act since before it was passed. Heritage Minister Pablo Rodriguez was on the committee looking at the legislation in 2011, and identified exactly the issues that are now affecting the publishing industry. The Liberals were in opposition at the time; since taking power six years ago, they have repeatedly pledged to close the copyright loopholes, especially regarding the definition of fair dealing in the educational sector, most recently in their 2022 budget. Yet action on the file does not appear to be forthcoming.

Part of this, Levy contends, is because the ultimate sign-off on any legislative change does not go through Heritage, but Innovation, Science, and Economic Development Canada, under the purview of François-Philippe Champagne. It is Minister Champagne, not Rodriguez, who holds “the pen” on any changes to the legislation, says Levy.

“The reality that people don’t appreciate is that what ISED considers its client is the user community, and more specifically the post-secondary sector,” she says. “With copyright resting with the Innovation minister, and with the Innovation minister seeing him or herself responsible for education in the post-secondary sector, we see the design of the system setting creators and publishers up to fail.”

None of which helps stakeholders in Canada, though Leblanc points out that the issues go beyond our own borders. At meetings of the World Intellectual Property Organization, a global forum devoted to issues of copyright and intellectual property law, it is clear that Canada’s reputation is at a low point as a result of the government’s inaction. “We have a black eye in the world because of our stand on copyright,” Leblanc says.

This helps explain why she felt it necessary to release an extraordinary media statement calling on the government to fulfill its promise in budget 2022 and address issues with the Copyright Act. Asked if she feels the current regime poses an existential threat to Access Copyright and, by extension, to the revenues accruing to creators and publishers in the country, Leblanc replies in the affirmative.

Gaughan is similarly worried about Access Copyright’s ability to persist in the face of government intransigence. “Because they play such an important role in the industry, we are very concerned about their viability,” she says. “I don’t think any organization can operate at a loss indefinitely.”

By: Steven W. Beattie

July 19th, 2023

3:35 pm