by Glenn Rollans

Through long practice, I’ve learned the art of putting people to sleep by droning on about copyright, so put on your pajamas and stick with me.

I started writing this article in a side room outside a meeting chamber at the World Intellectual Property Organization (WIPO) in Geneva on March 17, borrowing liberally from an address I gave to the Publishers Association of New Zealand / Aotearoa in the summer of 2021. The more things change…

At the time, I was waiting late on a St. Patrick’s Day evening for the 43rd session of the Standing Committee on Copyright and Related Rights (SCCR) to reconvene to hear the Chair’s summary of a week’s deliberations. I’d come to these meetings in my role as representative of the Canadian Copyright Institute. My job here is to remind member states of the UN, sometimes formally and more often informally, that Canada is not a good model for copyright reform.

Our saga (stick with me) begins with England’s Statute of Anne of 1710, the first statute in our tradition that made copyright a matter for government and courts. It granted authors the exclusive right to copy their work, a right they could license to others.

So why, in 2017, did an influential MP argue with me that the Statute of Anne was about protecting the rights of readers and the public, not those of authors? I was meeting with the MP as president of the Association of Canadian Publishers, trying to describe the damage suffered by our industry after five years’ experience with Canada’s amended Copyright Act. The MP replied that if we could not survive under the terms of the new Act, he was content with the prospect of us disappearing. He asked what I knew of the Statute of Anne, and emphasized that its goal was to rein in the monopoly of publishers, and to ensure that the public had access to new knowledge on fair terms.

So, I went back and read it with that description in mind, and the challenging thing about this old Act of the British Parliament is that it does both. From the title on, it links “the encouragement of learning” with the exclusive right of the author to copy. As my encounter with him showed, 307 years later, Queen Anne’s law was still helping to keep muddy waters muddy.

In acting to control the pirates of the day—printers who quickly knocked off unauthorized editions of every bestseller—Anne’s government also imposed conditions intended to protect public access: price controls, for example, and a form of legal deposit guaranteeing that copies were available to universities. Queen Anne’s parliament left us with a pattern of never supporting the exclusive rights of authors without sparing a thought for readers at the same time.

Rights of access and use have been welded to the copyright owner’s nominally exclusive rights ever since.

Prof. Michael Fraser of Australia drew attention to a more modern expression of this double-barrelled approach in his 2016 Charles Clark Memorial Lecture at the London Book Fair, when he pointed to Article 27 of the Universal Declaration of Human Rights, which consists of just two short paragraphs:

1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Copyright, Professor Fraser says, is the legal expression of these human rights.

Prof. Fraser’s splendid insight in that address is that these two rights reinforce each other, rather than oppose each other. Publishers (like me) work to further both of these rights: finding ways to extend access to published works, while also enabling the creators of those works to benefit from their creations.

But we’re living in a time when it’s commonplace to think of these two rights as opposites: in this frame any new law must support either users or copyright owners, but it can’t do both. “Balancing copyright” means legislating new exceptions and limitations to copyright for the benefit of users, exceptions that erode or extinguish exclusive rights of authors.

That unfortunate spirit was at work in 2012, when the government of the day announced its intention to overhaul our copyright act to bring it up to date in a rapidly changing media world.

Many issues were debated: digital rights management, classroom display, limits to statutory damages to protect naive pirates, e-lending, collective licensing, cross-platform uses. And—fair dealing.

Leading up to 2012, fair dealing was already something special in Canada. The Act said that fair dealing for specified purposes did not infringe copyright, but the Supreme Court went further in 2004: it said that not only was fair dealing a defence to infringement, but it was also a user’s right.

In that legal environment, the chosen wording when the government made amendments to the Act in 2012 was key. The broader the purposes specified for fair dealing in the Act, the broader the field of uses in which copyright users would claim a right to use without paying.

Rightsholders, which includes publishers, authors, and other creators, cautioned the government that “education”—one word that includes so much—should not be added as a specified purpose. We predicted, among other outcomes, that the education sector would abandon collective licensing, the process through which our association, Access Copyright, a collective voice of creators and publishers in Canada, negotiates copying limits and prices with schools, colleges, businesses, and governments, for both print and digital copying. We also predicted that we would be thrown into a battle of attrition through litigation that we would lose, since we would run out of money before the other side.

By January 2013, confirming our pessimism, most elementary and secondary schools outside Quebec stopped paying for their massive, systematic copying of instructional materials. Most universities and colleges outside of Quebec followed suit by the end of 2015.

The whole education sector made a coordinated move to a shared, arbitrary copying policy, which they claimed—with no authority—represented the new limits of fair dealing. To an obvious and contemptuous degree, their new policy echoed the copying limits specified by the abandoned collective licences, with the important difference that the new policy claimed those limits for free, rather than for a fee.

Rightsholders, like me, responded with offers to negotiate, which were ignored. We responded with applications for new certified tariffs from our Copyright Board, a judicial institution charged with setting rates for using copyright-protected materials when the parties can’t agree. The Board certified fair tariffs, but the educational sector ignored them.

We then responded with litigation, most prominently in the ruinously expensive case of Access Copyright vs. York University, launched in 2013.

You may wonder at the wisdom of suing your customers, and it’s a fair question. This was a situation we dreaded and did everything we could to avoid. But the education sector acted as one, with no regard for its impacts on the creative sector, and we had to respond or accept the serious, spreading damage to our livelihoods.

Copyright holders won the case in Federal Court, then lost half their victory in the Federal Court of Appeal in 2020, when court ruled the new guidelines were unfair, but the university did not need to pay the certified tariff.

The Supreme Court of Canada issued its even more damaging decision in June 2021. The decisions of Copyright Board are not mandatory, it confirmed, adding that it was open to the government to clarify the law if it had intended otherwise. But the Supreme Court did not express itself on whether the guidelines were fair or not, saying that was no longer a live issue since a tariff would not be mandatory whether the guidelines were fair or unfair.

The results at this stage of the saga: schools, universities and colleges have declined to pay authors and publishers hundreds of millions of dollars in certified tariffs. Unrestrained digital and paper copying of partial works continues across the country: an entrenched, unbeatable free option for using published works, in competition with legitimate paid options offered by publishers, authors and our collective society. The result has been the untold and incalculable disruption of the market for direct sales of instructional and literary works to schools and post-secondaries. It has occasioned the loss of at least a third of the jobs in Canadian publishing, more than 4,000, and the decline of the GDP contribution of the book industry by at least 22%. Devastation of authors’ incomes. Depletion of our collective war-chest for future litigation. Crucial conduits of national values and culture—writing and publishing—blocked at the source.

That’s the real shame: loss of national stories and our own cultural context in our schools’ learning resources.

All along the way, since before the amendments of 2012, we’ve been told to wait for the next step by government or in the courts. We are now beyond a decade of waiting for bad legislation to be corrected, with no end in sight.

So, back to the top. The Statute of Anne codified copyright, somewhat stealthily, as a strange kind of right, a strange kind of property. The creator of a new work immediately comes into possession of an exclusive right related to that work, but it’s an “exclusive” right in which others have interests—interests in how and where that work is available for access, and on what terms.

As I mentioned, in Canada, those interests have been embroidered on by academics and in the courts and expressed as rights of users, which are now framed by some as being opposed to the rights of creators, and on an equal footing.

This is the outcome of the, in Michael Fraser’s words, “fatally miscast” contest that he laments: a zero-sum contest pitting copyright users against copyright holders.

And if in democracies you think of that misbegotten battle as a contest of numbers, it comes into focus as a fight that copyright owners, a minority, can only lose. Through the crystalline but distorting prism of this zero-sum narrative, the battle looks like private interests against the public interest, whereas in fact there are crucial private and public interests on both sides of the owners vs. users divide.

With apologies to Queen Anne for using her as a scapegoat, I in fact lay the blame for our current situation squarely on Canada’s process of copyright review and amendment. It could have pursued real balance by securing the rights of all stakeholders, but it didn’t. It could have created effective administrative systems, but it didn’t. It could have protected the rights of the few against the power of the many, but it didn’t. It could have avoided costly, drawn-out litigation by being precise in its language, but it didn’t. It could have responded promptly to remedy the massive damage unleashed by its bad bill, but it hasn’t.

It has sacrificed important national priorities for almost imperceptible consumer benefits: universities have saved each student less than fifteen dollar per year, while allowing their costs to balloon in general. Schools have saved less than three dollars per student per year.

On the bright side, despite all that has been lost in our industry, the government of Canada can still remedy the situation by acting to reverse the harm it has caused. It committed in Budget 2021 to do so. As I said to a parliamentary committee in 2018, the necessary changes are completely in their power. Much good and no harm will come from them.

But, as I sat in the waiting room in Geneva, volunteering in what often feels like a lost cause, feeling ashamed of Canada’s lonely stance as the only rich nation not to protect its copyright-dependent professionals and industries, was hopeful that perhaps Budget 2023 might contain some good news. It didn’t and I’m still waiting.

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