It’s been eight years since Canada approved changes to its copyright laws that commercial providers say paved the way for more liberal copying and sharing of school materials.

Education publishers in the U.S., who see Canada as an important market, had hoped to change the policy in the recently approved U.S.-Mexico-Canada trade agreement, but it didn’t happen.

Now, U.S. publishers are hoping that the policy can be addressed through direct engagement with the Canadian government by industry and the Trump administration.

The Software and Information Industry Association has concerns about the Canadian copyright exemption, which affects several U.S. education publishers that operate in Canada, said Carl Schonander, senior vice president for global public policy at the Washington, D.C.-based organization, in an interview.

The issue dates to 2012, when Canada adopted a law that ultimately resulted in the expansion of its “fair dealing” principle to educational works.

Similar to the U.S. concept of “fair use,” the policy allows the use of copyright-protected works without permission from the copyright owner or the payment of copyright royalties.

“We do think it’s important for the U.S. government to engage with the Canadian authorities on this issue to ensure that the interpretation of the fair dealing guidelines in Canada allow companies to exploit their works in a normal way,” he said. “That’s the core of the argument here.”

The U.S. Office of the U.S. Trade Representative did not respond to a request for comment. But in its last yearly report on unfair intellectual property practices of foreign governments, the agency noted that it remained “deeply troubled” by the exception, which it said has “significantly damaged” the market for educational publishers and authors.

From $18 Million to Zero

Released in April 2019, the “Special 301” report also noted that the U.S. had looked forward to “working closely with Canada in the coming year to address priority IP issues.”

The Canadian copyright law had a dramatic and negative impact on the revenues flowing to the publishing industry, by some accounts.  The copyright licensing fees paid from Canadian K-12 public and independent schools to educational publishers fell from about $18.3 million annually to essentially zero, according to a 2015 PricewaterhouseCoopers report.

SIIA, whose members include ed-tech firms, in 2017 urged USTR to tackle the education copyright exemption during the negotiation of the USMCA, but the pact ultimately did not include the requested language.

USMCA is the successor agreement to NAFTA, and is taking effect after talks between the three member nations concluded in November 2018.

President Donald Trump on Jan. 29 signed legislation to implement the U.S. portion of the agreement, while Mexico ratified the deal in June and Canada’s Parliament is currently working toward ratification. All three countries must approve USMCA before it becomes active.

In written testimony to USTR in June 2017, SIIA specifically called for USMCA to include a resolution that would provide “fair compensation” for educational publishers, including U.S.-based publishers, and enable them to produce high-quality digital and print material to Canadian schools and universities.

Educational publishers simply didn’t have enough leverage to get the language added during a massive trade negotiation, noted Eric Miller, a global fellow for the Wilson Center’s Canada Institute and a trade adviser for the Canadian government.

As it now stands, the USMCA will likely not add further clarity on whether U.S. education publishers should receive licensing fees from K-12 schools in Canada, Miller added.

Supporters of the education exception would argue that it’s important to provide open access to source materials, but the question of who should get paid for content will likely persist until a clear policy is developed, according to Miller.

A group of Canadian provincial education ministers has stated that the Copyright Act’s education exemption is good public policy” that strikes an important balance between user rights and creator rights.

The policy “gives students access to a wide range of material they need to obtain 21st-century learning outcomes,” the organization said, adding that “students benefit when teachers can use short excerpts for educational purposes.”

Canadian Industry Continues Engagement

In an email, Association of Canadian Publishers Executive Director Kate Edwards said her group continues to call on the Canadian government to clarify the application of fair dealing to education.

Most of Canada’s public K-12 sector has adopted its own copying guidelines and has stopped paying licensing fees to education publishers, even though the 2012 Copyright Act doesn’t explicitly say they can do that, as it does not define “education.”

While it doesn’t explicitly define education, the 2012 Copyright Act added “education, parody, [and] satire” to a list of specific copyright exceptions that had already included research and private study.

Canadian Parliament formally examined the country’s application of copyright exemptions last year.

The review resulted in a parliamentary committee in June recommending that the Canadian federal government engage the public and private sectors to build a consensus around the future of fair dealing for education.

Edwards said the government hasn’t acted in response to the report.

Her organization wants to develop “collaborative solutions on how we can meet the needs of educators and students, while ensuring that writers and publishers are compensated for their work,” she said.

A spokesperson for the Canadian government acknowledged the committee’s work and said the government is studying the parliamentary committee’s recommendation “with a view to ensuring that Canada has a healthy copyright marketplace” that allows users to access a “diversity of content” while allowing creators and innovators to reap the “full rewards” of their work.

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See also:

• How Did ‘Copyright Piracy’ Language Get Into ESSA, the K-12 Law?
• How Houghton Mifflin Harcourt Plans to Cut Product Development Costs
• Open Education Resource Providers End Fight Over Attribution