As I noted in a post yesterday, Access Copyright has filed its response to the Copyright Board of Canada’s series of questions about fair dealing and education in the tariff proceedings involving Canadian post-secondary institutions. Yesterday’s post focused on how Access Copyright has urged the Copyright Board to ignore the Supreme Court of Canada’s ruling on the relevance of licences to a fair dealing analysis. Today’s post examines the collective’s response to the Copyright Board’s question on the effect of the fair dealing legislative change in Bill C-32/C-11. Access Copyright engages in revisionist history as it seeks to hide its extensive lobbying campaign that warned that the reforms would permit mass copying without compensation.

For two years during the debates over the bill, Access Copyright stood as the most vocal opponent of the expansion of the fair dealing purposes to include education. Given its frequent public comments and lobbying efforts on the bill, one would think its response to the Copyright Board, would be pretty straight-forward. For example, it created a copyright reform website – CopyrightGetitRight.ca – that warned:

the education exception will permit mass, industrial-scale copying (equivalent to millions of books every year) without compensation to the creators and publishers who invested their creativity, skill, money and effort to produce this content.

In the 2010 digital economy consultation, Access Copyright told the government much the same thing:

New exceptions, which create a sudden increase in uncompensated uses of works, will result in significant lost sales and millions of dollars in revenue losses to Canadian content owners from collective licences alone.

Maureen Cavan, then the executive director of Access Copyright said:

Schools won’t have to pay to make reproductions of textbooks and other materials developed to meet the requirements of provincial curricula…the education exceptions may permit mass, high-volume copying (equivalent to millions of books every year) without compensation to the creators and publishers who invested their creativity, skill, money and effort to produce this content.

Access Copyright was asked during the Bill C-32 committee hearings to specify the likely cost.  Roanie Levy, the current Access Copyright executive director, responded:

Based on our study, we believe that about $60 million is at risk as a result of the scope of fair dealing in the education sector, as well as other education-related exemptions provided for in Bill C-32. This is revenue that COPIBEC and Access Copyright collects today for the copying of a chapter here, a page there, for the distribution of works in class, for the use of works in exams. It also includes the royalties that certain film distributors collect from the education sector.
So we’re talking about a minimum of $60 million at risk, but you also have to consider that, when a use or reproduction becomes free of charge, an increase in that type of reproduction follows. There will also be a revenue shortfall that will be more difficult to quantify as a result of a decline in sales of texts intended for schools.

Unequivocal positions, which the government rejected by adding education as a fair dealing purpose with no limitations or restrictions. 

Yet when Access Copyright is now asked about the effect of the change, it claims that the legislative change that it once warned would cost $60 million was not a change at all. Instead, its response to the Copyright Board is that the legislative change did not change the law but rather codified the existing law as expressed in the Supreme Court of Canada fair dealing decisions. For example, its response includes the following:

In effect, the majority of the Supreme Court of Canada jurisprudentially expanded the meaning to be afforded “research” and “private study” to include instruction. This decision expanded what was once understood to be limited allowable purposes of private study and research to include copying performed for the purpose of instruction or education. This expansion of the allowable fair dealing purposes was later codified in the amendments to section 29 of the Act. The coming into force of the statutory amendment in November 2012 did not serve to further expand fair dealing because the Supreme Court of Canada had already interpreted the exception as including that purpose. Simply put, and contrary to the apparent position taken by a number of educational users that the legislative amendments further expanded fair dealing in education, the legislative inclusion of education as an express allowable fair dealing purpose simply now accords with the jurisprudence.

There are at least two obvious problems with Access Copyright’s attempt to revise history.  The first is its record – in the media, in lobbying campaigns, and before Parliament – that the fair dealing reform in the bill was a significant change that would “permit mass, industrial-scale copying (equivalent to millions of books every year) without compensation to the creators and publishers.”

The second is that Access Copyright is attempting to deceive the Copyright Board by suggesting that the legislation came after the Supreme Court of Canada decisions. As it well knows, the Supreme Court of Canada decisions actually came two weeks after Bill C-11 received royal assent. Access Copyright deceptively uses the coming into force date to misleadingly suggest that the law simply codified the court’s decisions, when the court’s decisions predated the legislative reform. Bill C-11 could not have codified the Supreme Court rulings since the bill passed the House of Commons, the Senate and received royal assent before the release of the Access Copyright decision by the Supreme Court.

Why is Access Copyright attempting to revise history?  Once again, the reasons are obvious. First, the government would not have added education to the fair dealing purposes if it had no meaning at all.  Rather, it was clearly the government’s intent to expand the scope of fair dealing to cover more than research and private study. Second, Access Copyright is seeking to deflect attention from the fact that it has already told everyone what it thinks the legislation means. To again repeat its own words from the advocacy site it used to encourage people to speak out about the bill, the reforms “permit mass, industrial-scale copying (equivalent to millions of books every year) without compensation to the creators and publishers.”