Letter to the Editor Regarding Bill C-32: The Copyright Fight Over Canadian Classrooms

In September 2010, as MPs returned to Ottawa, The Algoma News published a letter from Maureen Cavan, then executive director of Access Copyright, the collective that licenses copying of published works by schools, universities and businesses. Her subject was Bill C-32, the Conservative government’s copyright reform bill. The letter became part of the national debate. Law professor Michael Geist and others quoted and argued with it in the years that followed.

What the letter argued

Bill C-32 proposed adding education to the list of purposes covered by “fair dealing,” the part of copyright law that allows limited use of protected works without permission or payment.

Cavan said the change would let schools save money right away while the cost landed on Canadian authors and educational publishers later. Her argument went like this:

• Canadian publishers produce materials written for provincial curricula, with local examples and Canadian content.
• Schools and universities were paying collective licences to copy those materials in bulk, which was often cheaper than buying more copies.
• If bulk copying no longer had to be paid for, she warned, that licensing income would disappear and fewer people would invest in new Canadian textbooks.

Her line that Canadian children learn to spell “Yellowknife before Yellowstone” because of Canadian publishers was widely repeated. She said the issue was not students copying a favourite poem but high-volume copying that could equal millions of books a year without payment. Supporters of the bill said fair dealing was always limited by a fairness test and that schools were already paying for large amounts of content.

What happened to the bill

Bill C-32 died on the order paper when the 2011 federal election was called. The majority government that followed reintroduced it almost unchanged as Bill C-11, the Copyright Modernization Act, which received Royal Assent in June 2012. Education became a fair dealing purpose.

In July 2012 the Supreme Court of Canada issued five copyright decisions on the same day, known as the “copyright pentalogy.” One of them, Alberta (Education) v. Access Copyright, held that teachers copying short excerpts for their students could be fair dealing.

The aftermath

Many universities and school boards then cancelled their Access Copyright licences and wrote their own fair dealing guidelines. Access Copyright reported large drops in revenue, and some Canadian educational publishers cut back or closed.

The dispute went to court. In York University v. Access Copyright (2021), the Supreme Court ruled that tariffs approved by the Copyright Board could not be enforced against institutions that chose not to take a licence. The Court did not approve York’s copying guidelines either, and it said fairness still depends on the facts of each case.

Calls to revise the education exception continue. Creators’ groups want copying paid for again, and educators want to keep the access they gained. Fifteen years after Cavan’s letter, the main question is still unresolved: how Canada pays for the Canadian content in its classrooms.