Federal Court of Canada Decision Reinforces Urgent Need to Repair Broken Copyright Regime

Monday, February 26, 2024

TORONTO [February 26, 2024] – The Federal Court of Canada’s extremely disappointing decision in the legal action launched by the Ontario school boards and Ministries of Education (excluding British Columba and Quebec) (the “Plaintiffs”) against Access Copyright reinforces the urgent need for the federal government to repair Canada’s broken copyright regime. This reform is long overdue.

For over a decade now, Canadian creators and publishers have been deprived of fair compensation for the copying and sharing of their work in elementary and secondary schools outside of Quebec. To date, the government has failed to deliver on its Budget 2022 commitment to ensure a sustainable educational publishing industry, including fair remuneration for creators and copyright holders. Last week’s Federal Court decision provides further evidence of a copyright regime that is in dire need of repair.

In its decision, the Federal Court declined to find that the Plaintiffs were voluntary licensees under the Access Copyright Elementary and Secondary Schools Tariff, 2010-2015, requiring Access Copyright to return amounts overpaid under a continuation tariff by the Plaintiffs between 2010 to 2012. This is an unfortunate result, given that, before the Copyright Board of Canada in respect of this same tariff, the Plaintiffs admitted that between 2010 and 2015 their schools made compensable copies of works within Access Copyright’s repertoire, for which they have never made payment to rights holders. The Copyright Board concluded that this compensable copying totaled more than 150 million copies per year, even after accounting for fair dealing and other copyright exceptions.

When considered alongside the Supreme Court of Canada’s 2021 decision in the York University litigation, the Federal Court decision makes clear that Canadian creators and publishers do not currently have a meaningful or practical way to uphold their rights to their works. Moreover, the important role of collective societies in the administration of their copyright interests has been diminished, leaving creators and publishers on their own to challenge infringement of their work through individual cost prohibitive lawsuits.

The current ambiguity in the Copyright Act, as well as the inability for Access Copyright to enforce tariffs approved by the Copyright Board, have created a veritable “free zone” for unlicensed educational copying in Canada. In this case, the Federal Court found that the extent of copying in the schools was completely unmonitored, and the Plaintiffs were in no position to know what licenses or other permissions they needed to clear copyright other than under a collective license from Access Copyright. Unlicensed copying continues to have a devastating impact on Canadian creators’ and publishers’ ability to create the Canadian stories that enrich classrooms, inspire students, and support academic achievement.

Canada’s creative community continues to call on the Government to implement recommendations that would repair that marketplace as well as restore fair compensation to Canadian creators and publishers for the use of their works based on the unanimously endorsed Standing Committee on Canadian Heritage’s Shifting Paradigms report. Access Copyright continues to ask the government to:

amend the Copyright Act so that fair dealing only applies to institutions where a work is not commercially available under licence by the owner or a collective;
amend the Copyright Act to clarify that tariffs approved by the Copyright Board of Canada have always been 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.

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About Access Copyright

For over 35 years, Access Copyright has facilitated content use for educational and professional purposes. Access Copyright has helped people make customized use of published materials combined with an assurance that the original creators and publishers also benefit, so that they can continue creating new and innovative works. This is vitally important to a strong Canadian culture and to all who rely on quality publications.

For general media inquiries:

Robert Gilbert, Communications Specialist and Affiliate Relations, rgilbert@accesscopyright.ca