Statement on K-12 litigation

Wednesday, December 4, 2019

There has been recent media coverage about ongoing legal action commenced by the K-12 sector against Access Copyright and the demands on some teachers that the associated discovery process has entailed. At the heart of the litigation is whether Ministries of Education, except for BC and Quebec, and the Ontario school boards (the “Plaintiffs”) should pay for use of copyrighted material in Access Copyright’s repertoire by elementary and secondary school teachers.

Let’s set the record straight.

The lawsuit was initiated by the plaintiffs in February 2018.

The plaintiffs are claiming that they have overpaid by approximately $25 million for the years 2010 to 2012 and Access Copyright is counterclaiming that they owe creators and publishers more than $50 million in back royalties for the years 2013 to 2019, with the amount due growing by $8 million per year.

Additionally, the plaintiffs are asserting that elementary and secondary school teachers do not make infringing copies of copyrighted material in Access Copyright’s repertoire. In order to put this claim to the test, the rules of the Court require the plaintiffs to look for and disclose all material that is relevant to the lawsuit, including copies of all the works in Access Copyright’s repertoire that were copied by teachers in a sample of schools since January 1, 2013.

The plaintiffs’ decision to continue to copy works while refusing to pay the rights holders has had a massive impact on Access Copyright’s rights holders.

It has become unnecessarily challenging for creators and publishers to earn a living and produce made-in-Canada content. The income of writers represented by Access Copyright has decreased by an average of 42% in the last three years. As well, certain publisher affiliates of Access Copyright have ceased publishing works in the K-12 area.

We are also open to and prefer to sit down with the plaintiffs to negotiate a mutually agreeable path forward rather than engage in litigation that does not benefit students and creators.

The plaintiffs have always been able to avoid any burdens of this lawsuit by paying a small per-student fee, the cost of a cup of coffee per student, to Access Copyright in exchange for access to the vast number of educational works within Access Copyright’s repertoire that can ignite their students’ passion for learning. 

The rate for the copying of works in Access Copyright’s repertoire was set by an independent rate-setting body called the Copyright Board of Canada. Parliament recognized a long time ago that the Copyright Board rate setting process is the only manageable way to balance the interests of tens of thousands of users and rights holders. Prior to this lawsuit, the Ministries, except for Quebec, and the Ontario school boards fully participated in the rate-setting process before the Copyright Board and, after hearing the parties’ evidence, the Copyright Board found that Canadian schools make more than 150 million copies of copyrighted material in Access Copyright’s repertoire that require payment. Based on this evidence, the Copyright Board set a rate for the years 2010-2012 at $2.46 per student per year and for the years 2013-2015 at $2.41 per student per year.

As a collective society that represents the rights of our members, our objective is to make sure that our rights holders get fairly compensated for the use of their works by the education sector so that they can continue to contribute outstanding Canadian content for our classrooms.