Who is Spinning Education into a Corner?

Looking closely at the Copyright Review testimony from provincial Ministers of Education, and seeing what incredibly bad advice they’ve been getting.

by John Degen

(The representative for CMEC consulting counsel at the Copyright Review. Image courtesy the Parliament of Canada.)

Recently, the Council of Ministers of Education, Canada (CMEC) appeared before Canada’s Copyright Review to give testimony on the state of copying and author payment in education across the country. As expected by cultural workers (who are currently being sued by most of the provincial education ministries), CMEC did not bring any solutions for the current copying mess in their own shop. Instead, they suggested that providing fair pay to writers when our work is used in education would somehow impoverish the systems they control.

This is direct testimony to Parliament from Hon. Zach Churchill, Minister, Nova Scotia Department of Education and Early Childhood Development, representing CMEC.

The second question is around the idea of a mandatory tariff to be imposed on the education system. This is something that we do oppose. We support the courts’ definition of fair dealing. We do oppose a mandatory tariff on education materials.
I think it’s important to recognize why that is. We believe that with the scarce public resources that we do have in this country, in our provincial jurisdictions, that we need to ensure that every single dollar that we spend is in the classroom and geared toward student success, achievement, and well-being. A mandatory tariff would take tens of millions of dollars out of our education system…

Let’s pull this statement apart a little bit. Mr. Churchill is a provincial Minister of Education. That means he is the elected official responsible for the educational budget in his province. That’s his job.

He calls the shots.

He signs the cheques.

And he is saying that the education system under his direction is underfunded.

What’s his solution to his very own underfunded educational system? Is it to fund it properly and sustainably? No, apparently the only solution he sees is to continue to not pay one of the primary suppliers of that system the money we are owed by law.

The mandatory tariff he’s worried about being “imposed” on the education system? It will not be imposed; it’s already there. The Federal Court of Canada has already ruled that tariffs at the Copyright Board are mandatory and that there is no opting out of them.

But we didn’t really need that ruling did we? The whole point of a tariff-setting system is that the tariffs are mandatory for those using the material in question. Why bother going through the long and expensive process of setting a tariff if those subject to it can just say ummm, no I don’t feel like paying that.

Can we opt out of our speed limits? Can we opt out of paying for our groceries?

And yet, those in charge of our school systems have been ignoring a mandatory tariff for the past 5 years. The very same tariff the education ministers are apparently so worried about is the one under which they’re suing Canada’s authors and publishers about. They won’t pay the tariff, but they’ll sue us to try and force us to pay them back… because of the tariff.

Note as well where Mr. Churchill says “we support the courts’ definition of fair dealing.” That’s a very surprising admission coming from CMEC, because CMEC’s own published guidelines for assessing fair dealing have been thoroughly discredited by Canada’s Federal Court. CMEC’s guidelines are virtually identical to York University’s guidelines, which have been declared “not fair in either their terms or their application.

The assertion in CMEC’s guidelines that an entire story, that 10% of a book, that an entire article from a journal or magazine, etc. can be considered a short excerpt (and therefore a fair dealing if copied) is a complete fiction that has no backing in any legal document — not in the Copyright Act, not in any Supreme Court decision.

Someone should have let Mr. Churchill knows those facts before he sat down before the review committee.

Someone also should have explained the meaning of the word “subsidy.” Concluding his testimony with a lip-service reference to the value of Canadian writing and publishing, Mr. Churchill noted:

…we are committed to working with yourselves, the federal government, and industry to come up with innovative creative ways to support that industry, to make sure that it’s successful and thriving so that we can all benefit from it.
We just don’t believe that subsidizing it from money for the classroom is the best way to accomplish that.

Paying workers for their labour is not a subsidy. Does Mr. Churchill consider teacher salaries to be a subsidy to the teaching profession, one that is also removing money from classrooms? That’s a question the teachers of Nova Scotia might want to ask him at collective bargaining time.

Copyright Review committee member Frank Baylis (MP for Pierrefonds-Dollard) picked up on Mr. Churchill’s concluding statement when he asked his first question.

Thank you, Mr. Churchill. You say you’re interested in supporting a vibrant, Canadian creative industry. How would you do that? I want to talk about money, because, ultimately, people need to be paid, so I would like to see how you would do that financially?
(MP Frank Baylis. Image courtesy the Parliament of Canada.)

In the exchange that followed, Mr. Churchill made vague reference to tax incentives (an actual subsidy, btw), grants and competitions. So, instead of being paid for our work, we should compete for the possibility of a prize?

Finally, Mr. Baylis sought clarity on the tens of millions of dollars referenced earlier by Mr. Churchill. Is that the savings education has realized by not paying authors? Here’s Mr. Churchill’s response:

I don’t know if I would characterize it as savings. It’s dollars that we have not been spending in tariffs…

The difference between “savings” and “dollars not spent” is a lesson I might have to go back to school to learn.


I’ll conclude today with this thought.

I don’t enjoy translating spin into truth. I take no pleasure in embarrassing folks over the foolish things they say to Parliament. I have better things to do, and I dearly wish I could get back to doing them. But I can’t — not until Canada’s writers are paid what we’re owed.

Here’s the thing — I didn’t tell Mr. Churchill to go to Parliament unprepared to deal with the reality of the copying mess in his own system. And let’s stop pretending — copying is out of control at all levels of education in this country. I have kids in the school system. I’ve seen the reams of single page photocopies that stand in for workbooks these days. I’ve seen entire bound anthologies created out of illegal copies of stories. I’ve seen photos of textbook pages uploaded to Google Classroom by teachers who — because their ministries don’t fund them properly — cannot afford a class set of texts.

Someone is giving the education sector spectacularly bad advice on this file. That advice is unsupported by actual law; it has been examined, tested and discarded in actual litigation; and it is doing nothing more for the education system than deferring payment on a bill they must and will eventually pay. That bad advice is what’s costing them millions.

Canada’s authors and publishers did not place education in this legal SNAFU. Our copyright collective certainly didn’t put them there.

It was the education system’s own legal advisers who did that. It was the extraordinarily well-paid, tenured theorists who rarely if ever see the inside of a working courtroom. That’s who put them in this mess.

If they are really concerned about underfunding and tight budgets, if they really want to focus on student success and achievement, Canada’s authors and publishers are ready and willing to work with education to find affordable solutions.

I think the education system in Canada needs to stop wasting millions on bad legal advice and courtroom intransigence. It needs to turn itself around and start on the long road back to respectability on the copying issue. The first step, in my opinion, is to change who they’re listening to.



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