BC Writers Dismayed at Government Court Action to Return Fees

British Columbia’s education ministry is seeking to have $5 million returned that it says it overpaid to copyright holders. Some of those affected say the province’s move will hurt authors, illustrators and an already struggling publishing sector.

“I think B.C. and other provinces would hope to avoid litigation, but at this point in time there is an action pending and for that reason I can’t make any specific comments,” Education Minister Rob Fleming said.

B.C. filed a notice of civil claim against The Canadian Copyright Licensing Agency, better known as Access Copyright, in the B.C. Supreme Court on Feb. 16. Access Copyright is a cooperative that represents copyright holders (including the author of this article) and distributes the money it collects to its members.

A similar case involving most other provinces, territories and Ontario’s school boards had already been filed seeking the return of $27.5 million.

Asked why B.C. has chosen to go to court, Fleming said, “Because British Columbia is a member of the Council of Ministers of Education of Canada, [and] this is an issue where there are significant amounts of money involved and a difference of opinion with Access Copyright.”

Green Party MLA Adam Olsen had asked Fleming about the matter during debate of the education ministry’s budget.

“I understand the fact that Access Copyright remunerates people who produce material, authors, and that there’s an awful lot of photocopying going on and it seems like ministries of education are trying to get out of that, the payments through Access Copyright to authors,” Olsen told The Tyee.

Olsen said the question came up among others he was asking about the amount of outdated material being used in B.C. classrooms.

“Clearly, we’ve been lagging as a province in keeping materials up to date, and now we’re part of a lawsuit that’s trying to get material that people have created, creators have created, for free,” he said. “I’ve got a lot of authors and creators in my riding that this is their work. It’s inappropriate I would say, from what I have seen, that we would be asking those people to do their work for free.”

According to B.C.’s notice of claim, Access Copyright owes the province nearly $5 million. The amount includes $4.3 million for fees the ministry says were overpaid between 2010 and 2012, plus taxes and interest.

During that time the province paid $4.81 per fulltime student on an interim basis, but in 2016 the Copyright Board of Canada determined the amount should have been $2.45 per student.

Access Copyright has not yet filed its response in court.

In February, Access Copyright alerted its members about the legal actions. “Each year, millions of pages of books, magazines, journals and newspapers are copied for use in K-12 classrooms without fair compensation to the creators and publishers of those works,” it said.

“For the price of a cup of coffee, educators and students have legal access to a rich array of content that they can select and customize to their needs. Yet the Ministries of Education (outside of Quebec) and the Ontario school boards claim they do not have to pay the fees certified by the Copyright Board and have deprived creators and publishers of this important source of income since 2013.”

In a letter to Fleming, Victoria journalist Peter Fairley wrote, “As you must know, writing fees have been flat and inadequate for decades.”

Teachers clearly value the work journalists produce “to inform our society, watchdog our interests, and write the ‘first drafts of history’” and are using it in the classroom, Fairley wrote. “People like me need MORE support from governments, not attacks on our rightful property and professional practice such as that contemplated by the B.C. Ministry of Education's legal action.”

Glenn Rollans, the president of the Association of Canadian Publishers, a partner in Brush Education Inc. in Edmonton and a past Access Copyright board member, called the government’s court action “a very direct attack” on Canada’s creative sector.

“I can’t compete with free,” Rollans said “I think it is a benefit for Canada to have a creative sector rather than be a consumer of other countries’ creations.”

The education sector used to pay more to use copyrighted materials, but after the federal government changed the definition of “fair dealing” in 2012, many institutions began using more material without paying for it.

The only test of the new approach so far has involved York University. Access Copyright won, but the decision is still under appeal.

Rollans said it’s “unconscionable” for governments to take a winner-takes-all approach to copyright and should instead consider it a way to support the creative sector.

Copyright fees of a few dollars per student provide access to a whole world of copyrighted material in a legal way that compensates the people who created it, Rollans said. “It’s hard for me to see that as an expensive arrangement.”

Individual authors would have received annual cheques of as much as $600 several years ago, but the amounts have since dwindled, he said. The share of fees received by Brush Education used to be more than $10,000 a year. “That’s fallen to almost zero.”

Some people believe information should be free, but they need to recognize the damage done by not paying creators and instead look for a solution, he said.

Fleming said he’s been hearing from people who receive royalties through Access Copyright. “I appreciate their perspective,” he said. “We’ll have to proceed through the series of parties that are involved in this action for the time being, but I certainly have no hesitation to receiving more letters from people who find themselves interested in this litigation.”

Olsen said he’s uncomfortable with creators not being paid fairly when their work is used in B.C. schools or elsewhere. “I think we have to be able to strike a balance here,” he said. “From a fairness perspective people need to be remunerated for the work they are doing, and I think we have a responsibility as a province to not expect that those people work for free.”