Canadian copyright has been in market failure for over a decade now. Writers and publishers in this country have seen over $200 million in earned income from educational copying siphoned away from our small businesses, with no attendant benefit to students or teachers.
A recent Federal Court decision involving Canada’s copyright collective and most of the country’s education ministries underscores absurdly unfair market conditions for Canadian writers and publishers. Ostensibly granted exclusive rights to our labour and product through the Copyright Act, we have no reasonable recourse in the courts or at the Copyright Board to protect and/or monetize those rights.
Despite existing licences and tariffs worth tens of millions of dollars, a previous Supreme Court of Canada declaration that Copyright Board tariffs are not mandatory (even for users copying works covered by those tariffs) leaves Canada’s lower courts with no enforcement powers. Canadian jurisprudence now contains an active copyright paradox. Hundreds of millions of pages of annual uncompensated copying in educational settings has been ruled to be illegal, yet no payment can be reasonably compelled. Canada’s writers are left with their labour exposed to exploitation, and only the unworkable right to bring individual infringement action against industrial users. This condition all but guarantees continued and unstoppable infringement.
The Writers' Union of Canada (TWUC) is profoundly disappointed, but not surprised by the Federal Court decision.
“The Union has been telling Parliament for over a decade the Copyright Act must be repaired,” said author Danny Ramadan, Chair of TWUC. “We’ve waited through court cases, Parliamentary reviews, many budgets, and a series of elections. Government has asked Canada’s cultural workers for patience on the promise that they would meet our needs before a complete breakdown in the marketplace. Well, the breakdown is here, and we’re still waiting.”
Along with our colleague organizations, TWUC calls on the federal government to include long-recommended copyright amendments in the coming Federal Budget. These repairs were promised in the 2021 election, Ministry mandate letters, and the 2022 budget. Positive, workable international models exist for Canada to emulate, ones that guarantee robust access for educators and fair compensation for cultural works.
Specifically, Parliament must:
- amend the Copyright Act so that fair dealing only applies to institutional use where a work is not commercially available under license by the owner or a collective;
- amend the Copyright Act to clarify that tariffs approved by the Copyright Board of Canada have always been mandatory and enforceable against infringers of copyright-protected works subject to tariffs; and,
- amend the Copyright Act so that statutory damages are rebalanced to deter mass uncompensated copying by institutions.
The Federal Government has rightfully challenged provincial governments to cease the exploitation of foreign students in post-secondary education. Canada’s cultural workers deserve and demand similar action to end the exploitation of our labour. There is no other advanced economy in the world that expects cultural workers to subsidize education budgets with free labour.
The Writers’ Union of Canada (TWUC) is the national organization of professionally published writers. TWUC was founded in 1973 to work with governments, publishers, booksellers, and readers to improve the conditions of Canadian writers. Now over 2,700 members strong, TWUC advocates on behalf of writers’ collective interests, and delivers value to members through advocacy, community, and information. TWUC believes in a thriving, diverse Canadian culture that values and supports writers.
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For additional information:
John Degen, Chief Executive Officer
The Writers’ Union of Canada
jdegen@writersunion.ca
DATE: February 28, 2024
