March 3, 2016

Copyright Board decision offers little clarity on fair dealing for education

Canada’s independent publishers are discouraged by the Copyright Board’s recent decision on the 2010-2015 K-12 Tariff, issued February 19. The decision assigns no tangible value to the vast majority of material copied in Canadian schools. This will further diminish the industry’s capacity to invest in new works and threatens the future supply of Canadian-specific learning resources.

In 2012, the Copyright Modernization Act added education as a purpose for fair dealing. In the vacuum of guidance occasioned by the new law, the Council of Ministers of Education (CMEC) subsequently created and adopted “Fair Dealing Guidelines” and have largely ceased paying for print and digital copies used to deliver curriculum in Canadian schools. As a result, revenue flowing to publishers and creators has plummeted, with an economic loss of at least $30 million in royalties annually across the industry. Last month’s Copyright Board decision contributes to a troubling framework, and means that book publishers and creators will not be compensated for copying an amount equivalent to close to 900,000 books annually. 

“Canadian publishers are long-term partners in Canadian education. We invest in and produce the works that teachers and students have come to rely on in delivering curriculum,” said Association of Canadian Publishers (ACP) President Matt Williams. “We share a common interest in ensuring the ongoing availability and quality of Canadian content in the classroom, content that reflects local culture and realities. But with dramatically reduced royalties coming back to us for reinvestment in new works, this system is threatened.”

The Copyright Board’s decision also raises questions about the application of CMEC’s Fair Dealing Guidelines. Though CMEC repeatedly cites the guidelines as evidence of its members’ respect for copyright, in its decision the Board found that CMEC witnesses “showed that there was little or any emphasis on monitoring and compliance with the Guidelines.” The Board’s decision highlights the shortcomings of CMEC’s guidelines, and serves as a reminder of the complex copyright landscape Canadian educators now find themselves working under. 

“The educational publishing market continues to erode in Canada, and the consequences are more than just financial,” observed ACP’s Executive Director, Kate Edwards. “Without incentives to publish, the variety and quality of contemporary Canadian educational content will decline. At the end of the day, it’s students and teachers who will lose out.”  

The ACP calls upon the federal departments responsible for copyright – Canadian Heritage, and Innovation, Science and Economic Development Canada – to clarify fair dealing provisions immediately, to ensure fair compensation for the use of copyright-protected work.