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Dundurn Press is a 50-year-old Canadian publisher with a strong list of fiction and non-fiction titles, plus an expansionary spirit. In the midst of the pandemic, it opened its own bookshop in Toronto’s Leslieville neighbourhood. And yet, around the same time, it stopped publishing books for middle-school children and teens, despite a successful history releasing about a dozen chapter books and young adult titles annually.

Dundurn’s move is just another loss in children’s and educational publishing in Canada, as both licensing income from and sales to schools and universities shrivel. In 2016, Oxford University Press stopped publishing new Canadian school textbooks, which were all written and edited here.

In a small market with easy access to foreign material, Canadian book publishing is always a tough business, but the situation in the educational market can be directly traced to a mistake the Conservative federal government made in 2012 – and the eight-year-long failure of the Liberal government to fix it.

In 2012, as the government revised the Copyright Act for the internet age and attempted to clarify how much copying is permitted, it added “education” to such traditional exemptions as private study, research and satire. Universities and provincial educational ministries promised they would only make “fair use” of authors’ works – but defined fair unilaterally. Users should feel free to copy as much as 10 per cent of a book or one chapter, their guidelines declared.

In this newly relaxed environment, schools began copying all that and a lot more. Publishers noticed that where once schools bought a classroom pack, they bought only a single copy. Meanwhile, universities refused to pay the tariffs that compensated authors for the use of their work in digital course packs.

Today, Access Copyright, the agency that collects those fees on behalf of authors and publishers outside of Quebec, is operating at a deficit, and many in the industry fear it will collapse. The education sector is estimated to copy more than 600 million pages a year, with losses running as high as 90 per cent of licensing fees.

Salaried university professors may not care about a little extra income from publishing that is more important to their tenure and promotions than their bank accounts, but the financial losses are painful for freelance authors and their publishers – as well as freelance illustrators and designers. (Full disclosure: I have several copyrights registered with Access Copyright and have lost a few hundred dollars in annual income.)

Historian Charlotte Gray, author of non-fiction books The Promise of Canada and Sisters in the Wilderness, has lost 75 per cent of her annual licensing income since 2011, even though she has published four more titles in that period. Students tell her full chapters of her recent Canadian history books appear in university course packs, copying for which she receives no compensation.

At Dundurn, the publisher’s share of copyright fees made the difference between profit and loss on their children’s publishing program. For a Dundurn writer such as Sylvia McNicoll, author of more than 40 titles for tweens, the fees represented 10 per cent of the small annual income – around $20,000 – that she makes from her books.

The depressed sales caused by so much copying have also led publishers to produce fewer titles, as a downward cycle takes hold. There are no new editions of Canadian high-school texts, and no fresh chapter books targeted at hard-to-reach readers.

Meanwhile, the education exemption is destroying Canada’s cultural reputation abroad, as international associations and even the U.S. trade representative complain. The International Publishers Association calls Canada “an outlier in the global publishing ecosystem,” warning other countries about how much damage can be done by a change as minor as adding the words “and education” to the law. Some also argue Canada is now in breach of international treaties: There is little for Access Copyright to remit to international partners who still collect regularly for Canadians authors and publishers copied in their countries.

All of this has been through the courts. In 2013, Access Copyright sued York University for refusing to pay tariffs the university argued were not mandatory. The federal court found the copying exceeded anything that could be considered fair. However, when the case finally made it to the Supreme Court in 2021, it ruled that the act did not contain the language that would make the tariffs set by the Copyright Board enforceable, and tossed the issue back to Parliament.

Two years later, nothing has changed. Why is it taking so long to make the obvious fix and force the provincial education ministries and the universities to stop downloading their budget-trimming exercises onto small Canadian publishers and their writers? Publishers get a sympathetic hearing at the Ministry of Canadian Heritage, but they know the final say lies with Innovation, Science and Industry, where the big education lobby may outgun them. If you’ve ever worked as a freelancer, you know that when money is tight it is always the little guy who is the first to get stiffed.

The industry is also deeply suspicious of the Cabinet-table power of Justice Minister David Lametti: As a law professor specializing in intellectual property before going into politics, he was one of those who celebrated a 2004 court decision in favour of users’ rights – to photocopy legal decisions at a law library – as a new standard for the internet age.

The difficulty with such cases based on technical fields, where publishers can often charge significantly for information, is that the decisions are then applied to the precarious work of Canadian cultural industries. Enjoying the fruits of global digital plenty, copyright skeptics often fail to understand that in a small market such as Canada, if you kill the chicken and eat if for dinner tonight, there will not be eggs tomorrow.

And there is the tricky issue of federal-provincial relations, since the 2012 exemption was a big gift to provincial education ministries. Access Copyright calculates a decade’s worth of unpaid fees at $200-million, and many industry observers figure the only political route for the federal government to change the act is also to kindly pay the schools’ and universities’ outstanding bill.

With the passage of the Online Streaming Act last month, Heritage Minister Pablo Rodriquez proved he can stand up to lobbyists and manage competing interests to get a bill through Parliament. It is time for Rodriquez to tell his cabinet colleagues that the Copyright Act revisions need to happen now. The legalized robbery of Canadian authors by the education sector is an international embarrassment and a national shame.

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