Nothing to See Here, Folks. Keep Moving.

Testimony at Canada’s copyright review shows cultural workers suffering, the world noticing, and education pretending none of that is actually happening.

by John Degen

(Standing Committee on Industry, Science and Technology, reviewing Canada’s Copyright Act. Image courtesy the Parliament of Canada)

Canada’s copyright review committee has been travelling the country, setting down in five major cities to hear testimony from individuals and groups.

Testimony from the cultural side of the table has been shocking and compelling. In Toronto, for instance, best-selling children’s author Sylvia McNicoll revealed that she has personally visited a classroom (at a prison school) where the entire class set of her book were bound photocopies. She has suffered a 90% total income drop since 2012 when Canada’s Copyright Act was weakened beyond its ability to protect creators’ rights.

Ms. McNicoll told Parliament that she is reluctantly retiring from the business, and will be selling her house as a result. I can confirm that I have heard similar stories and plans from many respected Canadian authors. That is more Canadian content discouraged and uncreated, and Canadian workers impoverished.

Parliament has heard from publishers that the explosion of free copying since 2012 has affected not only their own royalties, but the royalties they pass to their authors. Some have noted those steep royalty declines (80–90%) represent the difference between profit and loss, and that primary sales of actual books have also been negatively affected. What that means is that continued investment in Canadian content becomes untenable. This is from the brief submitted by publisher House of Anansi:

In order to replace the profit from this licensing income and restore that royalty amount to our creators, we calculate that we would have to sell an extra 7,500 books into classrooms each year — that’s around $150,000 worth of books at list price. This is clearly massively unlikely given the prevailing position within the educational sector that, once a book is purchased, material from that book can, under their own guidelines, be systematically copied year after year without further payment.

And the world’s writing and publishing community has also shown up at the copyright review table, to note it’s deep concern and anxiety about the way copyright is being eroded in Canada. I appeared for The Writers’ Union of Canada (TWUC), but also in my role as Chair of the International Authors Forum (IAF) in the UK, an umbrella organization currently representing close to 700,000 authors around the globe. The IAF has been communicating with Canada’s lawmakers about the educational copying crisis for a while now.

As well, in Toronto, The International Publisher’s Association (IPA) sent a representative from Mexico City, Hugo Setzer, to report to the committee on the world’s publisher’s concerns about damage to Canadian publishers.

“Canada is now considered internationally an outlier, not only with its ‘fair dealing’ exception for education, but with its court-made law that equates fair dealing exceptions with so-called ‘user rights,’ all of which has resulted in loss of income for Canadian publishers and authors.”

The source for that quote above is the online magazine Publishing Perspectives, which covered Setzer’s testimony in detail in their story IPA Names Canada ‘a Bad-Case Example’ for ‘Interfering With Copyright.


What Problem? We See No Problem.

On the other hand, much of the testimony from educational representatives has been, frankly, irrelevant to the discussion at hand, and/or bafflingly unclear on the fact that their free-riding on culture is causing a real economic concern.

I’ve already documented how one witness expressed bewilderment at the suggestion that people were actually losing money when the product of their labour was taken rather than paid for. You mean to tell me that when a negotiated price is not paid and a product is still taken, someone loses money? It’s as though the time and labour of creative professionals counts for nothing.

As well, administrator after administrator seems to think it’s important to tell the committee the same centralized talking points. In Halifax, a Dalhousie University librarian and chair of the Council of Atlantic University Libraries said this (which the committee has now heard several times from different reps in exactly the same words):

The bulk of the material purchased by university and college libraries is academic in nature. Universities Canada has estimated that 92% of the content in libraries is produced by academic authors. Our libraries spend the bulk of our collections budgets on the content most in demand; namely, electronic journals, e-books, and streaming media licences.

Even if they’re accurate (and that 92% number is a very loose estimate), these points are undisputed by writing and publishing. We don’t care about them, and neither should Parliament. Why not? Because 92% of content is not 100% of content, and the bulk of a budget is not the entire budget. What is consistently left out of this educational testimony is that the remainder of the material education uses — proven in court and at the Copyright Board to be more than 600 million pages of copying per year — is not being paid for.

You cannot walk out of a supermarket with a basket of free groceries just because you pay for most of your food.

Testimony from the University of New Brunswick’s President perhaps unintentionally spoke directly to the point I’ve just made. At the Halifax meeting, Dr. H.E.A. Campbell stated:

One thousand courses are vetted through the system. We have 6,000 items placed on reserve each year. There’s about 1,000 scanned documents that will be reviewed for whether or not they’re a fair dealing, or whether or not we require a transactional licence to use them. We have a budget of some $5,000 a year to purchase transactional licenses… (source: unedited transcript of the INDU Committee Halifax hearing.)

Six thousand items placed on reserve means that’s how many items are intended for actual student use. Fully 17% of those items are then claimed as a fair dealing, which means they won’t be paid for. And if UNB uses much the same guidelines as York University (and they do), we know that a good chunk of those free uses will be illegal.

Yes, they claim some transactional licences, but a $5000 budget for transactional licences will not seriously dent that 17% number. Those are free uses, and actual uses as opposed to the potential uses claimed for expensive foreign journal content schools willingly spend money on.

Canada’s copyright review will continue for many months, perhaps years, but it should already be abundantly clear to Canada’s lawmakers that an immediate solution is needed. The Sylvia McNicolls and Houses of Anansi in this country can’t wait until after the next election to have their vital income restored.

Education has been benefiting from free copying valued at hundreds of millions of dollars over the past six years, while cultural workers have suffered that loss as long. Parliament should impose an interim measure regulating educational copying and forcing education to pay for their uses while the review continues. It’s the only fair way forward.



John Degen is a novelist and poet. He is Executive Director of The Writers’ Union of Canada, an organisation representing more than 2,000 professional authors in Canada. He is also Chair of the International Authors Forum, which represents close to 700,000 professional authors worldwide. Views expressed are his own.

Read John Degen’s most popular Medium article: 5 Seriously Dumb Myths About Copyright The Media Should Stop Repeating.

© John Degen, 2018

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