Access Copyright’s Conspicuous Copyright Canards as Enabled and Empowered by the Globe and Mail

(Canard)

The Globe and Mail has recently published three misleading and seriously inaccurate opinion pieces about Canadian copyright law from authors who should know better, given their backgrounds. They are from Kate Taylor dated May 26, 2023, August 2, 2023 and Hugh Stephens, July 15, 2023. One might have expected better basic fact checking from what is supposedly Canada’s “national newspaper” and/or “newspaper of record” of conspicuous copyright canards.

Both authors advocate for changing Canada’s copyright law to impose potentially great mandatory costs on the post-secondary education (“PSE”) sector in favour the very controversial and arguably obsolete organization known as Access Copyright (“AC”), which purports to collect royalties for the reproduction of its members works by organizations such as governments and PSE institutions.  Mr. Stephen’s opinion piece conveniently follows up just two days later on the announcement by Access Copyright (“AC”) that it was downsizing and restructuring. This all seems to be highly orchestrated by AC. And Yahoo News  republished a pathetic press release from Access Copyright.

Both the Globe and Mail and the National Post have failed to respond to my op-ed submissions. Maybe they both are myopically sympathetic to the copyright maximalists? Have these bastions of Canadian Main Stream Media (“MSM”) drunk too much of the copyright Kool-Aid? How independent or professional is the Canadian MSM anymore? The glory days of Canadian op-ed pieces in MSM sadly ended a long time ago.

AC has indeed seen its revenues drop since 2012 but falsely blames this on the purely coincidental amendment that year of the fair dealing provisions of Canada’s Copyright Act that added the word “education”. However, there is no factual or legal basis to suggest that this amendment has had anything whatsoever to do with AC’s deservedly declining fortunes.

The users’ fair dealing rights relied on by the PSE sector have been in place for more than a century since at least 1921 and have been affirmed and confirmed by numerous judicial decisions, including four from the Supreme Court of Canada since 2004. These include two from 2012 and one from 2021 that were not based on the 2012 amendment.

The Americans have seen “fair use” (counterpart to “fair dealing”) rights hardwired into their law since 1976 for “teaching (including multiple copies for classroom use), scholarship, or research…”. There is no reason for Canadian educators and students to be at a comparative disadvantage to their American counterparts, especially when American publishers are perhaps the main driving force behind AC. Moreover, Americans would choke at the socialist notion of “mandatory” copyright tariffs, which Canada’s Supreme Court categorically rejected in 2021 based in large measure on my submissions on behalf of the Canadian Association of Research Libraries.

Since 2012, the Canadian PSE sector has been spending far more and far smarter on fair payments for authors by way of licences, acquisitions of print or digital material, and targeted procedures to ensure that deserving authors get actually paid. AC is arguably the worst possible vehicle to ensure such payments. Its non-transparent repertoire is mostly irrelevant in the PSE sector. Former U of T Dean of law Marin Friedland exposed the problems of AC’s methodology in 2007 and there has been  no apparent evidence of improvement. The bottom line is that AC has long ceased to offer any useful value for its PSE licences.

The kind of changes that that AC and its supporters are calling for may very well be not only unwise but also unconstitutional.  Education, as well as property and civil rights, are provincial jurisdiction. Freedom of expression is guaranteed by the federal Charter.

What Lies Ahead

We have just had a cabinet shuffle. Sadly, shamefully, and for no apparent reason other than cynical electoral optimization, the Hon. David Lametti, Minister of Justice, has been dumped out of cabinet by PM Justin Trudeau. While copyright was never directly part of Lametti’s portfolio, he was by far the most legally learned member of the current Government and Minister of Justice for a very long time. His potentially moderating and deeply informed influence will be missed. Ms. Taylor has implied that his expertise in copyright may have led to him being pushed from cabinet. She writes: “Coincidentally, another cabinet change might help get the job done. Publishing insiders have long suspected one roadblock was former justice minister David Lametti, known as a supporter of so-called users’ rights." Prior to his public service, he was a highly respected academic at McGill law school and certainly a leading expert in copyright, as I know from working with him on an important Supreme Court of Canada case just before he was elected in 2015 and even long before.

And we now have Pascale St-Onge replacing Pablo Rodriguez as Heritage Minister. Her CV will play out very well in Quebec, from whence all of Trudeau’s previous Heritage Ministers have not coincidentally hailed. She and Trudeau are plainly pandering to a Quebec audience first and foremost. However, if Minister St-Onge is well advised, she will realize that copyright law is not a Quebec based hill or bill to die on. She might wish to ask Sheila Copps, Sarmite Bulte, and others about that.

The other responsible minister, who actually should be primarily in charge of copyright law and policy, is F-P Champagne of Innovation, Science and Industry. He has apparently been missing in action on this file but remains in place in cabinet. He may be mindful that the copyright file is presumptively toxic and is best avoided, if possible, especially for someone who may have leadership aspirations. AC is now targeting him in a mass email to its affiliates, on its website,  and doubtlessly directly.

Sadly, we will likely see policy on these issues dictated by “kids in short pants” at the PMO and even the apparently too politicized PCO – who have little or no substantive expertise and only care about politics and career aspirations. We could see a replay of Bill C-18 with some kind of bogus superficial “adjacent’ or “neighouring right” pretext for forcing a mandatory tariff for rights that don’t exist onto the PSE sector, to be paid for by Canadian provinces and ultimately Canadian students. The financial cost could be huge and the chill on Canadian education, research and private study ultimately even more costly. All this to enable Access Copyright to spend a fortune on salaries, lawyers, lobbyists – and to distribute what amounts to once-a-year lunch money to many if not most of its creator affiliates?

For better or worse, there is no sign that anyone, such as Google, is going to challenge the constitutionality of Bill C-18 in court, even though very credible commentators such as Konrad von Finckenstein and Phillip Palmer have done so in writing.

Above all, the educational sector and other user groups need to step up to the plate. Universities Canada has failed to provide satisfactory leadership on copyright for at least three decades. Hopefully, this could change with a new president – but I’m not holding my breath. U of T’s revised fair dealing guidelines are a step backwards. Canada’s “U15” group of leading research universities needs to speak forcefully. We need to see the PSE academy and responsible smaller organizations with less resources but more insight, ability, and agility step forward and write their own op-eds (assuming the MSM might publish them), do their own effective lobbying (i.e. actually meeting with Ministers), and develop their own updated fair dealing guidelines.

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Howard Knopf is a policy provocateur who, after 43 years, is no longer “practising law”. He has argued four very influential interventions in copyright cases in the Supreme Court of Canada. He is an active blogger on copyright and related issues and is an affiliate of Access Copyright.

 

A Fair Deal for Canada on Fair Dealing

Kate Taylor - Globe and Mail

The recent sadly and badly misinformed “opinion” dated May 20, 2023 by veteran Globe and Mail cultural columnist Kate Taylor entitled “Copyright loophole for education should be plugged”  highlights the need for the educational sector to step up to the plate on fair dealing and copyright revision. Her “opinion”, which some might mistake for journalism given her 34 year tenure with the Globe and Mail (which regards itself as “Canada’s National Newspaper”), could have been written by lobbyists for Access Copyright and publisher interests, though it would lack her hallmark and that of the Globe and Mail.

This is not the first time she has blatantly opined for Access Copyright. Here she is in 2016 using her Globe and Mail podium, which does not even pretend to be an “opinion” piece as does the current effort.

• She doesn’t seem to understand that fair dealing rights are “users’ rights” that must be given a “large and liberal interpretation” and are “always available.” She needn’t take my word for this. Those statements come from the Chief Justice of Canada, Beverly McLachlin in the landmark 2004 CCH v. LSUC decision. Above all, fair dealing is not a “loophole”. Fair dealing rights are absolutely essential and integral to the concept of copyright in Canada and every other comparable jurisdiction.
• She doesn’t seem to know the difference in terminology between “fair dealing” (Canada) and “fair use” (USA).
• She is apparently unaware that the USA has provided more and more explicit rights to educators since 1976 than Canada has ever done, i.e. by hard wiring teaching (including multiple copies for classroom use), scholarship, or research” into its copyright law since 1976. See 17 USC 107. Nobody could credibly suggest that this is non-compliant with international treaties. It’s simply absurd to suggest that Canada is an “outlier” in this respect; if anything, our fair dealing users’ rights need to go even farther to catch up with the USA.
• She is apparently unaware that key Canadian SCC fair dealing decisions, including the landmark 2012 Alberta v. Access Copyright and the SOCAN v. Bell  iTunes preview cases, were decided on the pre-2012 law that goes back to 1921 before the word “education” was added to s. 29. 
• She is misleading readers by suggesting that the addition of the word “education” to s. 29 of the Copyright Act via the 2012 Copyright Modernization Act caused the decline in Access Copyright’s revenues. Indeed, the 2019 INDU Committee Report from Parliament confirms that:
• ... in Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright),5 the SCC concluded that teachers could rely on the fair dealing exception when reproducing works for their students since these students were engaging in “private study.” The SCC reached this conclusion without relying on an explicit fair dealing exception for “education”—which, as noted above, has since been added to the Act.
• See also:

Prof. Ariel Katz’s 2018 testimony at the INDU hearings explaining that  correlation does not imply causation and outlining the many of the actual reasons for Access Copyright’s declining revenues
Prof. Ariel Katz’s 2014 blog about The Loss of Access Copyright Royalties and the Effect on Publishers: Sifting Fact from Fiction, which debunks the myths about the Oxford University Press “OUP”)decision close its Canadian K-12 division. Ms. Taylor in her current opinion to continues to attempt to refloat the OUP fiction

There have been no court cases since 2012 that have specifically considered the effect, if any, of the 2012 addition of the word “education” with respect to the fair dealing rights of educators, librarians, students and other essential “users” of the copyright system. In any event, the effect of the dealing on the market for the work being copied is one of the factors that courts would consider in determining fairness or lack thereof and, if Ms. Taylor is somehow correct in her assertion of causal connection, then copyright owners are already protected – so there’s another reason why there’s no loophole that needs to be fixed.

She is apparently unaware of the greatly increased spending since 2012 that bypasses Access Copyright not just because tariffs aren’t mandatory (as Ariel Katz and I have been preaching for a decade or so and the SCC agreed in 2021) but because Access Copyright’s “tariff” offers such poor value. Its repertoire is very limited – especially in the post-secondary educational (“PSE”) sector – and its terms of use are too limited to justify any more than a small fraction of their “approved” tariff, which is:

• $24.80 per FTE student, if the educational institution is a university.
• $9.54 per FTE student, if another educational institution (i.e. college)

The PSE sector is spending more money than ever though acquisitions, direct licensing, and dealing with the much more responsible and responsive American Copyright Clearance Center for transactional licences. Access Copyright is notoriously inefficient in its distribution, offers very limited “rights”, and its repertoire is focussed on Canadian literature – which is not a major component in the PSE sector. Most Canadian university or college grads will never need to read Margaret Atwood or Alice Munro. Maybe they should for their literary betterment. But such material is not part of the curriculum for engineers, doctors, lawyers, computer programmers, and the overwhelming majority of PSE students.

Access Copyright persists in attempting to collect revenues based upon repertoire for which it has NO rights. It once was able to get educational institutions to hold their noses on its dubious and now defunct “indemnity” scheme, which may have appeared to offer some practical value to some institutions. I’ve written a lot about this in the past, including this from 2009.

I have often suggested that Access Copyright could serve a useful purpose if it offered decent value to license its actual repertoire based upon useful terms and conditions at a reasonable price. But that price would presumably be a fraction – perhaps 10% - of what it currently sees itself entitled.

BTW, Access Copyright’s website is deceptively out of date regarding the PSE tariff case law, where it stops in 2017.

Ms. Taylor concludes her perfect puff piece for Access Copyright by saying “The legalized robbery of Canadian authors by the education sector is an international embarrassment and a national shame.” (emphasis and highlight added) Frankly, the national shame is that Canada’s national newspaper would publish something this misinformed, outrageous, and imbalanced that might get mistaken, due to its provenance and the Globe and Mail’s status, for credible journalism or analysis. BTW, I posted several timely tweets about this “opinion” and compiled  them for the comments section for the Globe and Mail, which has apparently decided not to publish my comment  in the “comments” feature following her opinion.

All that said, Ms. Taylor’s analytically and factually challenged “opinion” should at least be useful as a wakeup call for the educational sector – which frankly has not stepped up to the plate with sufficient vigor and confidence since its great victory in the SCC in the 2021 Access Copyright case, for which Ariel Katz laid the legal foundation and influentially intervened and I made the prevailing arguments on behalf of the intervener Canadian Association of Research Libraries (“CARL”).

The good copyright news overall now is that we recently passed Passover this year without the feared fatal budget announcement regarding fair dealing or mandatory tariffs that this Government might have hidden away in Federal Budget. That’s the good news.

The bad news is that this doesn’t mean these dangers have passed, as Ms. Taylor’s opinion piece blatantly demonstrates. Although the Hon. Pablo Rodriguez has his hands full with his incredibly misguided legislation in the form of Bills C-11 (now passed)  and C-18 (the “link tax” bill), that doesn’t mean that he or his enabling officials have forgotten about copyright and the shrill and misinformed voices from Quebec (of which he is Trudeau’s “Lieutenant”) and Bay Street.

Wiser ministers know that copyright revision – other than very careful incremental changes – is not a hill to die on in Canada. Fortunately, there are two other ministers who will hopefully bring some essential legal and policy wisdom to the table, should this become necessary.  The Hon. F-P Champagne, the ISED minister, is actually the minister with historically primary responsibility for copyright. The Minister of Justice – the Hon. David Lametti – who is mentioned by name by Ms. Taylor – may also play a role. He was a leading copyright law professor at the McGill Faculty of Law for about 15 years before he ran for office. His department is responsible for ensuring the constitutionality of any legislation and is responsible for the review and drafting of legislation for the government. He was my client and appeared with me in his capacity as law professor and head of the Centre for Intellectual Property Policy at McGill in another important SCC case that helped to pave the way to the definitive 2021 SCC York ruling that Access Copyright tariffs aren’t mandatory. See Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615.

In the lull before the possible copyright storm, the best thing that the user community can do would be to follow the suggestion of Justice Abella in her last and crowning SCC decision of her illustrious career, namely to “actualize” their fair dealing rights as she puts it in the 2021 Access Copyright v. York University decision from the SCC.

As I’ve said before:

The victories of the PSE (post secondary education) sector are in peril – not only because of AC and its collaborators but because of sometimes unwise strategies in the PSE sector itself. Recall this important analysis by Prof. Ariel Katz following York’s defeat at the trial level in 2017: Access Copyright v. York University: An Anatomy of a Predictable But Avoidable Loss. The fact that the AC litigation against York was not struck down early on and had to go the SCC and that York chose to bet the farm on a bad set of fair dealing guidelines and risk a severe smack down overall on fair dealing does not bode well for the future unless basic lessons have been learned – which is hopefully happening but is not yet evident. York very nearly lost that litigation. Fortunately, my brave client the Canadian Association of Research Libraries (“CARL”) and Prof. Ariel Katz were very instrumental in saving York from this fate – though it’s far from clear that all those responsible for York’s strategy actually appreciate our work.

It surely suggests that the PSE sector needs to update fair dealing guidelines and to follow Justice Abella’s wise words in the York decision:

[106] At the end of the day, the question in a case involving a university’s fair dealing practices is whether those practices actualize the students’ right to receive course material for educational purposes in a fair manner, consistent with the underlying balance between users’ rights and creators’ rights in the Act. Since we are not deciding the merits of the fair dealing appeal brought by York, there is no reason to answer the question in this case.

(underline highlight & emphasis added)

This can only mean that the PSE sector needs to come up with viable fair dealing guidelines that are:

• Neither too permissive nor too defensive
• Sufficiently specific to be actually useful.
• Sufficiently to broad to enable adult responsibility by individual professors and library personnel without the need to seek legal advice or permission from so-called rights owners or their licensees (after all, that is what fair dealing is all about)
• Likely to stand up to scrutiny in the event of litigation.

As I’ve said before:

Perhaps York should have been rather more careful about what it wished for. Both the Federal Court and the FCA had to respond to the counterclaim, which they did as asked. I am on record from the beginning as having questioned not only the guidelines themselves, which emanate from AUCC (now UC) guidelines but York’s decision to needlessly, in my view, put them on trial. Essentially, I had suggested that York get a summary ruling on whether the tariff was mandatory – which should have been very easy at least after the 2015 SCC judgment – and not unnecessarily “bet the farm” on the controversial fair dealing guidelines. Here are some of my blogs in reverse chronological order.

The process of actualizing educators’ fair dealing rights, which includes updating fair dealing guidelines, is essential and may suffice to head off any improvident legislation, such as Ms. Taylor and her supporters would like to see. It is too important to be entrusted to any single organization. That said, it should not be unduly complicated, given the good beginning of the 2012 U of T guidelines with which I was closely involved. These could be satisfactorily updated relatively quickly by a very small number of experts. If different organizations separately develop new guidelines, then let the market decide which approach is better. This may prove more efficient than attempting to form a coalition that could result in delays and devolution to the lowest common denominator. Above all, the mistakes that almost resulted in defeat being snatched from the jaws of victory in the long saga of the York litigation as a result of problematic guidelines and litigation strategy must not be repeated.

The original 2012 U of T fair dealing guidelines were developed in a cooperative collaboration between usually contrasting viewpoints (Casey Chisick and I) under the wise leadership of the now retired and much missed U of T general counsel Steve Moate. I was pleased to have been part of this process. These were, IMHO, the best fair dealing guidelines to date and suggest a method and process of going forward. If Casey and I can agree on anything concerning copyright, chances are that it must be right!

U of T has recently controversially updated its fair dealing guidelines, supposedly in response to the 2021 York decision from the SCC. Here is the new version. I was NOT involved in this update because I was not invited. I and many others are very disappointed with these new guidelines which are a big step backwards and, in some respects, simply wrong and even harmful. I will not go into any detail now as to how they are less than helpful, other than to say this.

Overall, these revised 2022 (as slightly updated in early 2023) guidelines are a disappointing and, in several instances, questionable and even inaccurate revision and update. They are more restrictive for the PSE sector than the 2012 guidelines.

Overall, the guidelines have gone from a reasonably balanced “safe harbour” approach that  enabled and empowered fair dealing to a much more risk-averse restrictive approach that overly protects publishers and needlessly errs on the side of caution at the cost of good education, research, and private study. With three strong SCC fair dealing victories in the last decades and two recent strong SCC judgements that tariffs aren’t mandatory, why wouldn’t U of T offer more assertive and empowering guidelines for the benefit of teachers and, above all, students – in other words, the university community.

If the current government is unwise enough to follow the histrionic hyperbole of Access Copyright and powerful publishers as presented by Ms. Taylor, then the PSE sector must be ready to defend itself with a good offence. This might include:

• Clarifying that TPMs can be circumvented for fair dealing purposes
• Ensuring that users’ fair dealing rights cannot be overridden by contract or waiver
• Ensuring that if crown copyright is not abolished in its present form, then republication of any crown work that is not officially “secret” should be permitted as fair dealing. This would be almost as good as in the USA where the federal government has no copyright rights in its works
• Adding the two little words “such as” to the s. 29 fair dealing provision, consistent with American law.

Anyway, thank you to @ThatKateTaylor this unintentional call to arms to all those who care about a fair deal for fair dealing and other essential aspects of copyright in Canada.

HPK