Joining the Call for Canadian Copyright Reform Now

Hugh Stephens, a Canadian policy and business consultant, has a new book out In Defense of Copyright. In advance of its release, he did a column on July 15th in the Globe and Mail, “Why Canada Needs Copyright Reform Now,” calling on the government to update the Copyright Act after more than a decade of reviews and proposals. I couldn’t be more supportive of both defending and updating copyright. Now does seem to be the time, and all the more so with Prime Minister Trudeau declaring that his midsummer cabinet shake up was intended to create “the best possible team aligned to respond to Canadians’ challenges.”

Mr. Stephens’ call to act is inspired by how the Canadian education publishing industry is “on life support” and Canadian authors are “suffering a drastic decline in revenue.” In the face of this distressing news, I can at least offer some evidence that the post-secondary market is not the cause. Catherine Baron and I explored the issue in a 2022 study that examined over 3,000 English- and French-language course syllabi from 34 Canadian universities.

As I shared earlier in this column, we examined the type of readings students were being assigned, finding that 90 percent, by page count, were from academic publications, whose authors are on university payrolls with the publications often subscribed to by the university library. This should be welcome news for Mr. Stephens, as it greatly alleviates his concern “that Canadian authors and publishers have been indirectly subsidizing the postsecondary and school sectors for more than a decade.”

These findings should also reassure Access Copyright. It can avoid the universities’ resistance to paying licensing fees for the entire body of assigned readings by focusing its attention on collecting fees for the work of professional writers and those who publish them. In our study, at least, we found this work amounted to ten percent of the assigned university readings or roughly 63 pages a student annually, which at the time amounted to, at Copyright Board rates ($0.021/page), an annual fee of $1.33 per student.

It’s true that I and other faculty members have at times received Access Copyright payments for the use of our scholarly work in university classes. I would, however, hope that my colleagues would join me in advocating that only non-academic writers be paid for the assignment of their work in class. It will save our students from paying twice for the scholarly materials, given their tuition fees could be said to go toward library subscriptions. This could be encoded in the Copyright Act by excluding non-academic readings from the fair dealing “education” exemption as part of the legislative reform process that are being called for by Mr. Stephens, myself, and many others.

Having stepped forward to support Mr. Stephans’ and Access Copyright’s goals, I would hope they might join me in endorsing a related step in this copyright update. This involves taking steps to align copyright with the open access policy of the federal research funding bodies, which in 2015 declared “a fundamental interest in promoting the availability of findings that result from the research they fund, including research publications and data, to the widest possible audience, and at the earliest possible opportunity.” The world witnessed the effectiveness of open access to research during the pandemic’s remarkable vaccine development race. It is time to bring copyright into the digital era when it comes to promoting the progress of science, to borrow the phrase that warrants copyright in the U.S. Constitution, as it surely applies to our aspirations for this law in Canada.

This belated digital-era update of copyright for research (following similarly based updates for journalism, music, videos, cellphones, and the list goes on) will require, in the first instance, that the Copyright Act recognizes “research publications” as a category of work distinct from the literary, dramatic, artistic, and musical works that are already addressed in the Act (as are cinematographic, choreographic, photographic, and sculptural works, along with computer programs). This will enable special provisions for research to become part of copyright, much as I would support Mr. Stephan’s and others’ request that artists’ resale rights of “artistic works” be incorporated into the Act.

Any measures for research publications would call for international coordination, which I consider a Canadian leadership opportunity of the first order in copyright reform. While there are a number of possible copyright reforms that would facilitate open access, I have been recommending in earlier columns (with the details in this open access book) a form of statutory licensing, which is used with musical works and is not all that far removed from Access Copyright licensing, except that it provides open access to research.

Under this proposed licensing, university libraries and funders would be required to fairly compensate publishers for open access to research publications at a rate determined by the Copyright Board (after hearing from publishers and libraries). Students and the public at large gain lifetime access to research, greatly extending the value of teaching and learning in the universities. This copyright distinction would allow professional writers and their publishers to claim their due when their work is used in universities and colleges.

Although we may differ somewhat in focus and means, this is why I am still fully prepared to join with Mr. Stephens in defending the possibilities that copyright holds for this country’s and the world’s future, and it is why I am delighted to join him in declaring that Canada needs copyright reform now.