A sad day for Canada’s literary culture: Government inaction hollows out copyright agency
For Immediate Release
July 14, 2023 – Canadian Authors Association (CAA) reacts with profound dismay to Access Copyright’s recent announcement of its forced restructuring. Access Copyright, the collective for Canadian writers, visual artists and publishers, is downsizing as a direct consequence of the disastrous 2012 amendments to the Copyright Act and the current government’s failure to fix them, despite repeated promises to deliver copyright reforms.
“It’s a wretched day in Canada when our sole literary collective shrinks as a result of a broken copyright system,” said Travis Croken, Co-chair of CAA. “We’ve decried the situation for over ten years, and nothing has happened. As one Quebec commentator observed, Canada is the dunce in the international classroom when it comes to protecting and uplifting our creators.”
CAA stands beside Access and its reduced team who have ardently pressed the government to fix fair dealing for at least 12 of its 35 years. We are deeply disillusioned by the failure in federal leadership that has resulted in such lasting damage to Canadian cultural industries, including the hollowing out of Access Copyright as an organization meant to protect and support them.
Those damages are clearly understood: $20 million in lost royalties under Board-approved tariffs over the last ten years, plus inestimable costs to creators personally, and heavy losses to the Canadian publishing industry.
The Access announcement does not come as a complete surprise. The Liberal Party, while in opposition in 2012, warned of threats to the literary community when education was added to the list of fair dealing exceptions. Yet seven years into a Liberal mandate, that very government has done nothing but spout unfulfilled budget commitments and languishing Ministry mandates.
CAA calls on the ministers who are jointly responsible for copyright reform – the Ministers of Canadian Heritage and of Innovation, Science and Economic Development – to collaborate expeditiously to fulfill their explicit mandates to fix the copyright system, and upon the prime minister to ensure this happens quickly.
Canada matters. Canadian cultural industries and stories matter to Canadians. Canadian stories matter in schools and bookstores, on newsstands and in broadcasting. The cultural industry matters when Canadian students contemplate a career in writing or publishing, and when authors think about committing additional months and years to craft yet another story for which they will not be paid. It matters when Canadians look, in vain, for representation within the body of Canadian culture, or for kindred voices expressing their own life experiences. The hollowing of Access Copyright is a hollow victory for those opposed to rebalancing the copyright scales with Copyright Act reform – because original and relevant Canadian content that they want for free will become even more scarce.
The Liberal government promised to fix the Copyright Act. Without evidence of progress, or even meaningful effort, dire consequences such as the diminishment of Access Copyright are inevitable.
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Canadian Authors Association was founded in 1921 with a goal of lobbying for the protection of authors’ rights and fostering a sense of cultural and literary solidarity among Canadian writers. Today, CAA and its branches continue to work to provide aspiring, emerging and professional writers across all genres and writing professions the programs, services, and resources they need to develop their skills, promote their work, and enhance their ability to earn a living as a writer.
For additional information, contact:
Travis Croken, National Co-Chair
travis.croken@me.com
613-868-2903
Copyright win for U.S. literary community: a ray of hope against Canada’s bleak copyright landscape
For Immediate Release
March 31, 2023 – On March 24th, United States federal judge John G. Koeltl ruled that Internet Archive’s (IA’s) practice of controlled digital lending (CDL) infringed the copyright of four plaintiff publishers (Hachette Book Group, HarperCollins, John Wiley & Sons and Penguin Random House). In his opinion granting summary judgment to the four publishers, Judge Koeltl wrote: “At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book. But no case or legal principle supports that notion. Every authority points in the other direction.”
The four publishers filed the lawsuit on June 1, 2020, after IA’s National Emergency Library began circulating any number of copies of a given work. In his ruling, Judge Koeltl found that IA’s programme of digital lending is not transformative, and that unauthorized reproduction of works is not protected by the first sale doctrine. He also rejected IA’s claims that publishers were not financially harmed by IA’s digital lending practices and stated that such practices would likely further deprive publishers of legitimate revenues if libraries opt out of paying for authorized e-book licences.
“The Canadian Authors Association is grateful that an important court is willing to protect authors, publishers, and the creative community,” said Travis Croken, National Co-Chair of the Canadian Authors Association. “The CDL decision is much-needed good news in the copyright world, when the Canadian federal government has failed to deliver on its promises to reform copyright and its March 28th budget failed to address those promises or devote much-needed funding to the literary creative community. The American case shows that fair dealing has its place in using creative works, and we must be vigilant to ensure the doctrine isn’t stretched to include dangerous interpretations. The American court resisted arguments made by IA in defence of their digital lending program, which if condoned, could undermine the global creative community and the revenues due for the use of creative works.”
For additional information:
Travis Croken, National Co-Chair
travis.croken@me.com
613-868-2903
CAA Statement on Bill C-19
For Immediate Release
January 5, 2023 – As of midnight, December 30, 2022, Canada finally harmonized its law with that of most advanced nations of the world and extended the term of copyright from “life of the author plus 50 years” to “life plus 70.” That means Canadian rights-holders, creators and those in creative industries, such as publishers, will now play on what the government consultation paper referred to as “a levelled playing field” with their cohorts, colleagues and competitors in more than 80 countries. Those nations include most of Canada’s major trading partners, including the U.S., 27 members of the European Union, the U.K., Japan, Korea, and Australia.
However, that Canada joined the “copyright club” isn’t really new news. It’s been in the works since July 2020. Canada committed to enacting the term extension as part of the Canada-United States-Mexico Agreement (called CUSMA in Canada) by the end of 2022. Thus, the government waited 2.5 years – and until the very last moment – to effect this mandatory amendment to the Copyright Act.
The Canadian government’s approach to copyright reform, which is to continually delay and postpone action, is highly detrimental to the creative industry. Canadian Authors Association, along with its sister creator organizations, has been calling upon the government to fix the fair dealing provisions of the Copyright Act for over 10 years. More recently, a damaging 2021 Supreme Court of Canada decision ruled that tariffs are not enforceable, and so we now join the cry for reform of the law to fill that gap as well.
Because the government is languishing in its role as legislator, creators are not getting paid. Publishers are slashing new publication budgets or even closing their doors. And educators are stretched to find high-quality Canadian literature to teach our students.
Therefore, while CAA welcomes the news that Canada has finally walked its talk on this “life plus 70” aspect of copyright law reform, we implore the government to fulfill its 2022 budget promise to fix the Copyright Act. The Canadian creative industry should be protected on a par with other advanced nations of the world – nations which do not have educational purposes in their fair dealing exception laws, and which do have enforceable tariffs. That fix needs to happen soon. For the creative industry, it truly is the last minute.
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Canadian Authors Association was founded in 1921 with a goal of lobbying for the protection of authors’ rights and fostering a sense of cultural and literary solidarity among Canadian writers. Today, CAA and its branches continue to work to provide aspiring, emerging and professional writers across all genres and writing professions the programs, services and resources they need to develop their skills, promote their work, and enhance their ability to earn a living as a writer.
For additional information:
Travis Croken, National Co-Chair
travis.croken@me.com
613-868-2903
Fair remuneration, fair dealing – rebalancing the copyright equilibrium
For Immediate Release
April 8, 2022 – Canadian Authors Association applauds the federal government’s commitment in its recent Budget announcement “to ensur[e] that the Copyright Act protects all creators and copyright holders.”
Copyright law is inherently evolving, always striving for a balance between the rights of users and of creators. However, the copyright regime is currently out of equilibrium, with the scales now tipped unfairly against creators. The 2012 addition to the Act of the fair dealing exception “educational purposes” — without qualification — followed by the 2021 Supreme Court of Canada ruling that copyright board tariffs are not mandatory, has led to an untenable situation for creators. Their work is being taken without compensation. This instability, left unchecked, would continue to erode the nation’s culture and heritage, and to damage a system that our future generations seek to enter.
CAA is extremely pleased with the Budget Commitment acknowledgement that creator and copyright holder rights need to be protected, and that the Canadian government perceives the need for change:
As such, the government will also work to ensure a sustainable educational publishing industry, including fair remuneration for creators and copyright holders, as well as a modern and innovative marketplace that can efficiently serve copyright users.
As a membership-based national organization for writers at all stages of their writing careers, CAA has been deeply concerned about the nation’s long-term cultural prosperity for over a century. “We are especially grateful for the support of Minister Rodriguez, Minister Champagne, numerous Members of Parliament and the Standing Committee on Canadian Heritage,” said Anita Purcell, CAA’s executive director. “They well understand that taking steps to fix the copyright regime is crucial to the security of creators and therefore to ensuring that Canadian culture and heritage thrive.”
CAA is gratified that the Budget Commitment statements, especially the emphasized phrase, signal a positive direction toward rebalancing the copyright regime’s equilibrium.
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Canadian Authors Association (CAA) was founded in 1921 with a goal of lobbying for the protection of authors’ rights and fostering a sense of cultural and literary solidarity among Canadian writers. Today, CAA and its branches continue to work to provide aspiring, emerging, and professional writers across all genres and writing professions the programs, services, and resources they need to develop their skills, promote their work, and enhance their ability to earn a living as a writer.
For additional information:
Anita Purcell, Executive Director
apurcell@canadianauthors.org
705-955-0716
Flawed Law, Flawed Framework
Canadian Authors responds to the SCC decision in the York vs. Access Copyright suit
For Immediate Release
August 5, 2021 — The Supreme Court of Canada (SCC) recently issued its long and anxiously awaited decision in the York University vs. Access Copyright case, a decision creators hoped would first, reverse the Federal Court of Appeal’s 2020 ruling that Copyright Board-sanctioned tariffs are not mandatory, and second, affirm the lower federal courts’ ruling that neither York University’s fair dealing policy nor its actual practices constitute fair dealing. The Supreme Court of Canada did neither.
Canadian Authors Association (CAA) is dismayed with the SCC ruling, deeply disheartened that the nation’s top court did not achieve any true balance between creator rights and user rights.
On the issue of whether tariffs are mandatory, the SCC said it agreed with the Federal Court of Appeal that Copyright Board-approved tariffs “are voluntary for users. If a user who chooses not to be licensed under a tariff makes an unauthorized use of a work, the remedy is an infringement action which Access Copyright does not have standing to assert because it does not own the copyright.” In other words, in almost all cases, it would be up to the individual author of the infringed work to sue the university for damages.
“It is simply not financially feasible for individuals to sue institutions such as universities or boards of education for copyright infringement,” said Anita Purcell, CAA’s executive director. “This is the reason that copyright collectives are set up. This is the reason that the Copyright Board sets tariffs for users.”
The SCC observed that Parliament could amend the current wording on the law regarding the voluntary nature of tariffs. For this reason, CAA exhorts the federal government to immediately address this flawed law. “The federal government could easily correct the law,” said CAA co-chair Karen Gansel. “The federal government is interested in a modern copyright framework, and an enforceable tariff is clearly a part of that.”
On the issue of whether York University’s policy and practices constitute fair dealing, the SCC did not disturb the lower federal courts’ rulings and therefore, York’s guidelines do not suffice. However, in obiter dicta, i.e., commentary that is not legally binding, the court stated it did not endorse the legal reasoning used by the lower courts in a particular analysis. It said: “At the end of the day, the question in a case involving a university’s fair dealing practices is whether those practices actualize the students’ right to receive course material for educational purposes in a fair manner, consistent with the underlying balance between users’ rights and creators’ rights in the [Copyright] Act. Since we are not deciding the merits of the fair dealing appeal brought by York, there is no reason to answer the question in this case.”
When the law undermines the ability of writers to earn an income from writing — for example, when Copyright Board-sanctioned tariffs are ruled to be voluntary instead of mandatory — writers are disabled from creating.
When the law forces individual writers to go to court against large institutions, writers’ works can be copied without compensation, and therefore, writers are exploited. They are discouraged from creating. Surely the federal government is interested in ensuring that literature continues to express national culture, heritage, values and issues, and therefore promoting the ability of writers to create.
CAA applauds the federal government’s ongoing consultation process to ensure a modern copyright framework. In keeping with its demonstrated interest in strengthening copyright law, the government could readily repair the system to reward creators for creating, and its first step in doing so is to amend the flawed law concerning tariff enforceability.
A century-old membership-based national organization for writers at all stages of their writing careers, CAA is deeply concerned about the nation’s long-term cultural prosperity.
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Canadian Authors Association (CAA) was founded in 1921 with a goal of lobbying for the protection of authors’ rights and fostering a sense of cultural and literary solidarity among Canadian writers. Today, CAA and its branches continue to work to provide aspiring, emerging, and professional writers across all genres and writing professions the programs, services, and resources they need to develop their skills, promote their work, and enhance their ability to earn a living as a writer.
For additional information:
Anita Purcell, Executive Director
apurcell@canadianauthors.org
705-955-0716
CAA Responds to Consultation on Extending Term of Copyright
March 29, 2021 – Canadian Authors Association has responded to the federal government’s consultation on extending the term of copyright in Canada. You can read the full response here [pdf]. An excerpt is provided below:
For the reasons provided in the Consultation itself – the mandatory nature of Canada’s obligation to extend term protection, the fact that Canada currently lags behind international standards with its life+50 rule, and the need for a more level playing field for Canadian creative industries and creators – the requisite term extension should be implemented without delay. Implementation should not be tied to any other policy issue at this time.
The issues raised in the Consultation are worthy of study and evaluation. However, they are less pressing than the INDU and CHPC Committee report recommendations, particularly those pertaining to fair dealing and mandatory tariffs, which we urge the Canadian government to consider. The more quickly Canada implements its binding obligation to extend term protection, the sooner Canadians will receive the benefits of reciprocity abroad.
Denounce and Act Against Racism
June 6, 2020 – Canadian Authors Association (CAA) condemns the crimes and injustices committed against Black, Indigenous and other people of colour—all of which have their source in systemic racism. Writers have honed language skills that can be used to rally our communities to act. Those of us who are not BIPOC can listen to, learn from and support those who are; all of us can advocate for change; we can extend hope and stand with those calling for justice; we can solicit, gather and disseminate stories rooted in BIPOC experience; we can engage in difficult discussions about racism; and we can act with compassion and courage. We can help educate. As writers we can be a force for good.
CAA denounces hatred in any form, and to start, will provide communication tools that help combat racism. By reading, looking, watching and/or participating, we can gain greater understanding. To that end, we are preparing a list of reading and viewing material on the topics of racism and oppression for our website. And we are working on other meaningful initiatives that give voice to the BIPOC community. We invite your suggestions for these lists and initiatives by contacting us here.
To quote Dr. Martin Luther King, Jr., speaking in 1963, “shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will.” CAA seeks to be an agent of greater understanding.
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Canadian Authors Association was founded in 1921 with a goal of lobbying for the protection of authors’ rights and fostering a sense of cultural and literary solidarity among Canadian writers. Today, CAA and its branches continue to work to provide aspiring, emerging, and professional writers across all genres and writing professions the programs, services, and resources they need to develop their skills, promote their work, and enhance their ability to earn a living as a writer.
For additional information:
Anita Purcell, Executive Director
Canadian Authors Association
apurcell@canadianauthors.org
Canadian Authors Call for Action Against Illegal Copying
May 4, 2020 – Canadian Authors Association (CAA) joins our fellow creator and publisher organizations in their reactions to the April 22, 2020 Federal Court of Appeal decision in the case of York University v. The Canadian Copyright Licensing Agency (Access Copyright).
In that recent decision, the higher federal court affirmed the lower federal court’s 2017 ruling that York University’s self-styled “fair dealing guidelines” are, in law, unfair. Since many learning institutions have adopted similar guidelines, the higher court’s ruling fortifies the position that the educational community must respect creator rights. Educators cannot continue to copy illegally according to their own rules. CAA applauds that portion of the higher federal court decision since it balances the rights of users with those of creators. If creators are paid for their work, then users such as Canadian schools will continue to have access to high quality Canadian content.
In the same decision, however, the higher court ruled that Copyright Board-certified tariffs are not mandatory. The Copyright Board tariff process provides both educational institutions and collective societies – such as Access Copyright, in the case of writers and publishers – with a practical, effective method of establishing fair rates for use of creative works. Until now, tariffs were considered mandatory. The decision “deprives creators of fair and affordable payment for the use of their work by stripping them of the ability to rely on their collective to ensure compliance with their rights and forcing them to be their own compliance officers,” pointed out Access Copyright in its recent media release.
In summary, educational institutions’ fair-dealing guidelines are unfair, yet individual creators now have a personal onus to seek out infringements by users such as educational institutions, and to enforce their rights. Ideally, collectives would enforce the rights, and creators would devote their valuable time to creating. This situation is deplorable.
“The appeal decision reinforces that Canada’s copyright framework is broken,” stated the Association of Canadian Publishers in its release.
The Writers’ Union of Canada (TWUC) uses the same metaphor. The federal government must “repair the marketplace for Canadian creativity,” it says. CAA joins TWUC’s call for immediate implementation of the 2019 Canadian Heritage’s Standing Committee recommendations in Shifting Paradigms.“Canada needs to support a flourishing culture,” said Margaret Hume, national chair of Canadian Authors Association. “Our literature, music, and theatre tell our Canadian story. To foster an environment that encourages the continuance and growth of our stories, we must support the creators by allowing them to receive fair compensation for the use of their copyrighted work.”
Canadian Authors Association stands by the right of creators to receive fair compensation for the use of their copyrighted work.
“The current situation is not sustainable,” said Anita Purcell, CAA’s executive director. “Writers and publishers have been waiting since 2012 for copyright amendments that truly safeguard our rights. In the interim, millions of dollars in earned revenue have been lost. The fixes have been clearly spelled out — how much longer must we wait?”
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Canadian Authors Association was founded in 1921 with a goal of lobbying for the protection of authors’ rights and fostering a sense of cultural and literary solidarity among Canadian writers. Today, CAA and its branches continue to work to provide aspiring, emerging, and professional writers across all genres and writing professions the programs, services, and resources they need to develop their skills, promote their work, and enhance their ability to earn a living as a writer.
For additional information:
Anita Purcell, Executive Director
Canadian Authors Association
apurcell@canadianauthors.org
Canadian Authors Responds to Shifting Paradigms Report
- Extension of copyright term to 70 years, harmonizing with international norms
- Ensuring that creators benefit from digital uses of their works
- Clarification and limitation on the Act’s education fair dealing exemption
What Canadian Writers Should Know About Controlled Digital Lending
February 21, 2019 — Canadian Authors Association denounces “Controlled Digital Lending” or “CDL,” the unsanctioned scanning and lending by San Francisco-based Internet Archive of thousands of copyright-protected works through its Open Library site. This copying takes place without the permission of or remuneration to the copyright holders, and therefore constitutes infringement. CAA fully supports the coalition of almost 40 international groups of creators and publishers in their opposition to this flagrant abuse of copyright and in their appeal to readers and librarians to engage in a dialogue with creators about this practice.
The US-based National Writers Union wrote anappeal letter, “Controlled Digital Lending (CDL): An appeal to readers and librarians from the victims of CDL,” which states in part:
CDL [Controlled Digital Lending] is not comparable to lending of physical books by libraries. CDL is not “fair use” as defined in U.S. copyright law, and an exception to or limitation of copyright to allow CDL without permission or remuneration would not be permitted by the Berne Convention on Copyright. CDL interferes with many of the normal ways, including new ways largely unnoticed by librarians, that authors are earning money from written and graphic works included in so-called “out of print” books. There is no basis for a good-faith belief that CDL is legal under either U.S. or international law.
Canadian Authors Association encourages its members and all Canadian authors to learn more by reading thatappeal letter. Additional information may be found on the National Writers Union website atFAQ on Controlled Digital Lending. We further encourage you to join the opposition to “Controlled Digital Lending” by signing an open letter to the Internet Archive on theUS Authors Guild website here.
“As the appeal letter has stated, this is not a victimless crime,” said CAA Chair, Margaret Hume. “This is another erosion of earnings for creators and another violation of their copyright. We must stand up firmly against this abusive practice and do all we can to stop it.”
To check whether copies of your books are available on Open Library for e-lending and downloading, go toopenlibrary.org. If your book is there, please notify your publisher and ask them to send an infringement notice to Internet Archive. Please also report the infringement to Canadian Authors Association’s executive director, Anita Purcell, at apurcell@canadianauthors.org, so we may add this infraction to our list of infringed works.
December 7, 2018
CAA Submission to Standing Committee on Copyright Modernization Act
The Canadian Authors Association (CAA) today made its submission to the Standing Committee on Industry, Science and Technology on the 2017-2018 Statutory Review of the Copyright Modernization Act. As a voice for authors in Canada, CAA has pointed to the urgent need for changes to Copyright Act to better protect the rights of creators.
Media Release – March 5, 2018
CAA Responds to Lawsuit Against Access Copyright
The Canadian Authors Association (CAA) is shocked and dismayed by the lawsuit filed against Access Copyright by the Ministries of Education in most of the provinces and territories in Canada as well as all of the school boards in Ontario. We join The Writers’ Union of Canada and the Association of Canadian Publishers in calling for the ministries and school boards to withdraw this lawsuit and respond to the Access Copyright call for meaningful dialogue.
As a founding member of Access Copyright, CAA stands in full support of this copyright collective, its defense of authors’ copyright, and the steps it takes to ensure proper compensation for the use of authors’ copyrighted materials.
This is a direct attack on Canadian authors and publishers who struggle enough as it is to earn sufficient income from their copyrighted work,” said CAA National Chair Margaret Anne Hume. “Instead of expensive legal action that will cause further division among us, we call on the ministries and school boards to engage with Access Copyright in open-minded discussion that will result in a solution acceptable by all.”
CAA reminds the ministries of education and the school boards that the Federal Court of Canada in its July 2017 decision in Access Copyright vs. York University stated that the ministries and school boards cannot opt out of copyright tariffs certified by the Copyright Board.
CAA is also mindful that this lawsuit has been launched during the federal government’s mandatory review of the copyright legislation and in particular the 2012 enactment of the controversial educational purposes fair dealing exception. “Our organization is strongly encouraging our members to contact their Members of Parliament to inform them that this lawsuit against Access Copyright feels like a lawsuit against creators, and to urge the federal government to remove the educational purposes fair dealing exception,” said Anita Purcell, CAA executive director.