In the past four years,Canadian writers and publishers lost roughly $53 million (CAD) in licensing royalties. How did this happen? 

According to recent Publishers Weekly estimates, this loss resulted from the decision taken by Canadian schools and universities, including Memorial University, to abandon their collective licensing agreement with Access Copyright.

While illegal photocopying is not a particularly sexy issue, the magnitude of this transfer of wealth from writers (the lowest paid professionals in the country) to educational institutions across Canada, demands immediate attention—particularly when considered in light of the lip service all-too-often paid to the value we place on our creative community here in Newfoundland and Labrador.

For example, Memorial University’s Sparks literary festival takes place on January 28, 2018. This year, as always, the festival includes an interesting line-up of performers, including noted Irish short story writer Colin Barrett, this year’s Giller Prize winner Michael Redhill, as well as numerous local writers. The festival, now in its 9th year, is one of a number of initiatives undertaken by Memorial University to promote writers and writing.

Others include the Visiting Writers Series and the Writer-in-Residence program. Memorial would like these efforts to be seen as examples of genuine engagement between the University, the writing community and readers, and yet, recent administrative decisions at the University to abandon its Access Copyright obligations cast these events and programs in a less flattering light.

Until 2012, Memorial University, in concert with most other English universities in Canada, regularly signed a collective licensing agreement with Access Copyright. These agreements (which consisted of an annual per-student fee) allowed students, faculty and staff to make reproductions of a certain amount of a copyrighted work without seeking permission from the copyright holder. The collected fees were then distributed by Access Copyright to writers across the country. It was not a perfect system—no writer got rich—but it was at least an attempt at fairness.

The arrangement broke down around 2012 when ill-defined changes to the Copyright Act and several Supreme Court decisions related to specific copyright-infringement cases were interpreted to mean that universities no longer needed an agreement with Access Copyright in order to reproduce copyrighted works.

English universities (perhaps under the guidance of Universities Canada and the Canadian Association of Research Libraries) all came to the same remarkable conclusion: they would no longer have to pay copyright holders for their works unless the amount to be copied exceeded a threshold set by the university. No writers—to my knowledge—were consulted about the amount of copying that could be done for free.

Needless to say, the collective decision by Canadian universities was hotly contested by non-university writers and writers’ organizations. The most high-profile of these challenges was that launched by Access Copyright against York University, the former charging that York’s copying guidelines were in violation of the fair dealing provision under copyright law. Fair dealing is the exception in the Copyright Act that allows one to reproduce a portion of a copyright-protected work for purposes such as research and private study provided that what one does with the work is “fair.”

In essence, York said its copying guidelines were fair and Access Copyright said they were not. It was up to Justice Phelan of the Federal Court to decide.

On July 12, 2017 Justice Phelan handed down his decision. The court found York University’s copying guidelines to be “unfair in terms and application,” and ruled that the university was “taking for free what they had previously paid for.” The decision was a damning indictment of both the guidelines and of York University’s ability to comply with its own rules.

Unequivocal in his denunciation of York University’s guidelines (and by extension the same or similar guidelines at Canadian universities (Memorial included), colleges and K-12 Departments of Education), Justice Phelan’s ruling should have brought all parties back to the table to negotiate new licensing agreements. Nothing of the kind has happened. Instead, educational institutions dug in their heels, hoping that the recently-filed federal court appeal by York University (A-259-17) will overturn the decision.

Canadian universities have had very little to say about their refusal to comply with the federal court decision. An eerie silence has gripped administrators, faculty, creative writing departments and librarians. One would have expected some principled argument about why readers’ rights trump the rights of creators. One might have expected trenchant critiques of the federal court judgement.

But apart from a few hurried blog posts and terse press releases, the airwaves have been quiet. One reason for this is perhaps the esoteric nature of the issues under discussion. Fair dealing, copyright licensing agreements, and exemptions under copyright law are not the kind of subjects that make headlines. The concepts themselves are complex. Most faculty members would not be able to explain them and many are not even aware of the current standoff between universities and the wider writing community. The ignorance extends even to those who should know better, to English Literature departments and creative writing faculty who are busily recruiting students with promises of a rewarding career.

Perhaps also there is an element of willful blindness in all of this. Acknowledging the standoff is awkward for those on campus who would champion writers and writing. Sparks festival organizers at Memorial say that the current copyright negotiation should not cast a pall over other university initiatives that promote writing and pay writers for their contributions. They ignore the fact that such programs have essentially become a smokescreen for Canadian universities, a way for administrators to have it both ways: on the one hand giving the appearance of supporting writers, while on the other hand taking away from them on a massive scale.

Tenured writers who work within the university have a duty to exercise academic freedom and speak up for their colleagues outside the academy. Writers invited to participate in university festivals, discussion forums, readings, as well as those invited to hold Writer-in-Residence positions should be informed of the current position taken by Memorial and other Canadian universities in regard to copyright and the fair compensation of writers for their work.

Copyright has been the backbone of the social contract between writers, publishers and readers since the eighteenth century. Canadian universities should defend that contract. They should not be in the forefront of the barbarian invasion that uniformly lumps all creative works together as “content” and would have us pay only for the platforms and machines that deliver it to our various electronic devices.

Article by Patrick Warner