Supreme Court Declines to Meaningfully Decide Key Educational Copying Case
After a decade of market failure for Canadian writers, and a Federal Court decision featuring overwhelming evidence of illicit copying, the Supreme Court of Canada (SCC) has declined to uphold creator rights, clarify fair dealing, or remedy a broken licensing structure that continues to damage both the cultural and education sectors.
The Writers' Union of Canada (TWUC) is profoundly disappointed with the outcome of the SCC ruling, as it represents yet another costly delay in bringing true fairness to Canada’s Copyright Act and dependable support for professional creation.
“It’s immensely frustrating to learn of this decision, which is based on technicalities rather than justice. This outcome demonstrates a completely blinkered understanding of the issues at hand,” said TWUC Chair Rhea Tregebov. “Writers are at a huge disadvantage when defending our rights in court, and the Supreme Court is essentially telling us we have to start all over again. It’s unconscionable.”
Agreeing to hear appeals by both Access Copyright and York University on separate aspects of lower court decisions, the SCC then quickly dismissed both appeals. In doing so, it deferred to Parliament the question of whether or not tariffs determined by the Copyright Board must be paid when an institution copies published work without a licence. The SCC ruling hinged on a technicality in the wording around Copyright Board tariffs, despite an obvious imperative for fair market structure, and suggested plainly that it is up to Parliament to clarify the law.
Importantly, with the dismissal of York University’s appeal regarding their overreaching copying guidelines, schools continue to risk expensive litigation when they copy without a licence. But the SCC decision on tariffs suggests writers will now individually have to sue for infringement on their own, all but guaranteeing uncompensated copying on a massive scale.
“The Supreme Court might have applied a very badly needed bandage here,” added TWUC Executive Director John Degen. “Of course carefully worded legislation is ultimately up to Parliament, and we will continue to work with lawmakers on that. But by focusing solely on abstract technicalities, the SCC ignored crushing damage to one of Canada’s most vulnerable economic sectors. It leaves writers with no workable legal remedy and, in fact, endangers regulatory structure for all professional creators."
TWUC calls on the federal government to act immediately. Reasonable recommendations for amending the Copyright Act are before Parliament in the Heritage Committee’s 2019 Shifting Paradigms report. It is beyond time to implement them.
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The Writers’ Union of Canada (TWUC) is the national organization of professionally published writers. TWUC was founded in 1973 to work with governments, publishers, booksellers, and readers to improve the conditions of Canadian writers. Now over 2,300 members strong, TWUC advocates on behalf of writers’ collective interests, and delivers value to members through advocacy, community, and information. TWUC believes in a thriving, diverse Canadian culture that values and supports writers.
For additional information:
John Degen, Executive Director
The Writers’ Union of Canada
Date: August 4, 2021