Heather Menzies is an author and chair of The Writers Union of Canada.
Copyright legislation has always been an imperfect way to protect and support cultural creators. However, its inadequacies became clear in Canada’s 2012 Copyright Modernization Act, one effect of which is a drastic reduction of authors’ income from the educational use of their work – with $30-million annually at risk.
The remedy lies in re-interpreting the legislation’s “fair dealing” clause to balance the rights of creators fairly with the needs of those who use their creations – the reading and learning public. The way to do this is by balancing the common-law understanding of cultural creation as “intellectual property” with older customary law. Its protocols protect the integrity of stories and ensure that cultural creators are respected as society’s all-important medium of cultural continuity.
Authors have always made copyright legislation work for them, even though it originated in a 16th-century move to restrict the right to copy texts to the Stationers’ Company, a booksellers’ cartel based in London, England, and had nothing to do with writers. Slowly, authors gained both the moral right to have the integrity of their work recognized as it was copied, and the economic right to receive royalty payments when it is shared with the public. Eventually, this came to be enshrined in a standard book-publishing contract with standard royalties. In Canada and other Commonwealth countries, this was extended into a “public royalty,” with authors whose books are in Canadian public libraries compensated for their use there. It was also extended through copyright licensing agreements negotiated through agencies like Access Copyright in Canada. These allow institutions like schools and universities to copy materials as student readings.
Payments from this secondary licensing of copyright came to represent 20 per cent of authors’ income – until the previous federal government introduced the Copyright Modernization Act. Then, as a result of lobbying from the business heads of the education sector, educational use was added to a list of what constituted free fair dealing. Many of the institutions involved took this as permission to abandon their licensing agreements.
Authors’ incomes are dropping as a result. And a PricewaterhouseCoopers study on the longer-term implications shows a decline in writing and publishing for the learning population; investment to create Canadian educational materials drying up; writers abandoning projects that could be of use to students; and the choice and quality of educational materials available to students steadily dropping.
This is where the deeper, public-interest meaning of the copyright act change becomes clear, and the inadequacy of thinking about books as mere product – and not also integral parts of cultural communication relevant to Canadian society over time. Indigenous scholar Greg Younging, who writes extensively about traditional and indigenous knowledge and the customary law underpinning it, describes indigenous artists as historically being “the link between one’s ancestors and future generations.” Yet this is now in jeopardy. The danger is that students at Canadian schools, colleges and universities will graduate without having read enough of the Canadian stories, the Canadian research, the Canadian approach to policy to feel that they are part of the larger space-time continuum Younging talks about. Both they and the country will be poorer as a result.
A court challenge to the copyright act change is ongoing. But the federal government has a public-interest role to play here too. As the new administration fulfills a pledge to fast-track a review of the 2012 copyright changes, it would be wise to refresh policy thinking about the larger purpose copyright serves. Seeking guidance from Canadians such as Younging, plus the United Nations international forum for dialogue on the interplay between intellectual property and traditional knowledge, founded in 2000, could help policy makers revitalize not just copyright support for creators, but cultural policy generally. Ensuring the financial sustainability of cultural creators is key to sustaining a sense of ourselves as part of a living narrative in the shared time and space called Canada.Report Typo/Error
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