Copyright in Canada: The Damage Caused by Unfair Interpretations of “Fair Use”

Originally published in The Hill Times on Wednesday, April 6, 2016

A significant part of the debate about copyright in Canada is over the question of whether authors and publishers are in fact being hurt by educational institutions refusing to compensate them for the use of copyrighted material.

The background here needs to be filled in. Many Canadian universities have interpreted a 2012 Canadian Supreme Court “fair use” ruling (regarding the use of “short excerpts” in classrooms) to mean that copyrighted works such as poems, short stories, and plays may be used in photocopied or digital coursepacks for students, without any compensation being paid to authors or publishers (provided each work is copied from a text or collection in which it comprises no more than 10% of the whole); instructors are thus encouraged to assemble their own entire anthologies for use in their classes—again, with no compensation whatsoever provided to the authors or copyright holders.

The extent of the damage caused by this interpretation of the law by educational institutions shouldn’t be exaggerated; the financial health of authors and publishers in Canada is not, of course, entirely dependent on payments for use of copyrighted material. But is the change hurting Canadian authors and publishers? There can be no question about that.

Let me provide some detail so far as Broadview Press is concerned. Although we at Broadview have managed to make at least a tiny profit in each of the years since 2012, in most of those years it’s been in the range of $50,000-$100,000—and we estimate the effect for us will be at least $100,000 annually if the universities’ interpretation of the Court’s decision (involving what seems to us to be an egregious distortion by Canadian universities of the meaning of the words “short excerpts”) becomes universal across Canada. Already we estimate we are damaged to the tune of at least $50,000 annually by this interpretation having become as widespread as it has.

Thus far we have continued to publish 40-45 titles per year, and we will certainly remain in business for the foreseeable future. The danger is not that we will disappear as a publisher, but that our publishing program will become far smaller, far less interesting, and far less culturally significant. If we do receive reasonable compensation (whether in the form of a per copy fee or an overarching per student fee for all coursepack and related uses), we can continue to justify publishing culturally valuable but commercially iffy collections such as Native Poetry in Canada and Introduction to Indigenous Literary Criticism in Canada—as we would certainly like to do! (We also like to keep prices very reasonable–unlike some other publishers of post-secondary textbooks, sad to say.) But if we receive no compensation whatsoever, we simply can’t continue to publish books of that sort; we cannot work for free. In that case we will simply have to focus more on publishing introductory composition texts and introductory logic texts that are less susceptible to being pillaged for “short excerpts.” Such books are, I think it’s fair to say, on average of less cultural value. But if the only way we can pay the bills is by publishing a steady diet of books of that sort, I’m sure that’s what we’ll do.

I should also make clear that we are not the sort of press that regards any and every protection of copyright or extension of copyright as being in the public interest. Another vitally important copyright issue on the table now in Canada is the Trans Pacific Partnership; if that agreement is ratified, copyright restrictions in Canada will go from 50 years after the death of the author (already too long, in my opinion) to a full 70 years after the death of the author, thereby preventing for an additional generation the publication of competing editions of literary classics—editions that can often be of immense cultural and pedagogical value.

Finding an appropriate balance in copyright issues is not easy. But in one direction it is surely unfair to simply not compensate authors and publishers of copyrighted material that is used to put together what are, in effect, entire textbooks. And in the other direction it is surely not fair to make it impossible to publish competing editions of century-old works, so that an author’s great grandchildren (or a corporation such as Disney, if copyright is held by an organization) can still retain an exclusive hold on all publication rights of a work that should have long ago entered the public domain.

Don LePan
CEO and Company Founder, Broadview Press

Posted on April 8, 2016