April 30, 2020 The Writers’ Union of Canada (TWUC) calls on the federal government to immediately implement Heritage Committee recommendations designed to repair the marketplace for Canadian creativity. Last week’s Federal Court of Appeal decision in legal action between Access Copyright and York University illustrates just how damaged and unfair the current legislative framework is for those making their living from authorship and other professional creative work in Canada.
The decision reaffirmed the lower court’s opinion that York University engaged in massive amounts of illegal copying, and that their so-called “fair dealing guidelines” are, in fact, unfair. However, at the same time, it gutted the authority of the Copyright Board, to which copyright collectives must turn when users refuse to license content. Absurdly, the appeal court declared that tariffs approved by the Copyright Board are not mandatory, calling into question the future of a regulatory mechanism purpose-built to protect the cultural marketplace.
“The law protecting our work is completely broken,” said Anita Daher, novelist and Chair of TWUC. “The court has just signaled that anyone can steal our work, because there’s nothing effective we can do about it. In fact, as far as I can tell, they’ve given a green light to illegal copying across the creative sector. That such a crushing blow to our earnings comes in the middle of an already devastating pandemic is unconscionable.”
Ill-defined and poorly thought-out amendments to the Copyright Act were passed in 2012, against the objections of cultural workers who predicted grave damage to the sector. Those predictions have all come to pass — hundreds of millions of dollars in earned revenue has been diverted from the Canadian writing and publishing business, systemic illegal copying is now rampant, and all remedies from collective action have been removed. Authors are now expected to sue institutions individually, a process that can stretch to a decade and cost hundreds of thousands of dollars, while statutory caps provide for a maximum of $5000 in damages. Essentially, there is no effective recourse under the law for authors whose work is copied illegally.
“The repair for all this is ready and waiting on government desks,” insists TWUC executive director John Degen. “Recommendations from the Standing Committee on Canadian Heritage’s 2019 Shifting Paradigms report bring greater clarity to the law’s language, and must be implemented now. Authors have been asked for patience for nearly a decade. We’ve worked in good faith with education, the courts, the Copyright Board and government to find solutions. In the end we’ve had our rights and livelihoods cut from beneath us at the very moment we need them most.”
To be clear, the Federal Court of Appeals has declared York’s copying guidelines unfair and its practices illegal. Much of the education sector follows similar guidelines and practices. There is no denying illegal copying is now in common practice in Canada. The government must step in to clarify the intent of the law, and provide legal remedies.
“In the current climate, writers are simply leaving the business” added Degen. “No sector can be expected to survive without a dependable legal framework. We can’t wait any longer; the government must act now.”