The B.C. Government lawsuit against Access Copyright
To: The Honourable Rob Fleming, B.C. Minister of Education
Dear Mr. Fleming:
“Our first priority is to make sure students are getting the support they need in classrooms this fall. We will fully cover the costs of the agreement on class size and composition. Districts are creating smaller class sizes and hiring 3,500 new teachers… There is so much more we can do to support children when we work together.”
I was delighted to see the above quote on your website. Given that your government recognizes and intends to repair the damage done to education by the previous government, I would ask that you also re-consider the related matter of copyright violation and illegal copying by schools and universities in British Columbia—no doubt an unfortunate side effect of years of inadequate funding for education. The illegal copying of works created by Canadian writers is only the latest twist in the ongoing saga of digital piracy.
Rent any DVD movie and you’ll see a short video warning against the digital theft of intellectual property. The writing, directing, acting, filming and editing of a movie involves years of creative work. Illegal copying of the final product is a crime—in both the United States and Canada. We’ve all seen the FBI logo and the caution so many times now that people tend to ignore it. But the tag line is clear: “Piracy is not a victimless crime.”
So why are provincial governments and education administrators behaving like pirates? Why the attack on Canada’s writers?
As a taxpayer and voting citizen of British Columbia—and as a person who sincerely hopes the NDP will succeed where the morally challenged previous government so obviously failed—I write to urge that you reconsider a lawsuit your Ministry has brought against Access Copyright—the agency that collects royalties owed to Canadian writers and publishers. [Full disclosure: I am one of those writers].
The issue is the illegal copying of millions of pages of non-fiction books, novels, poetry and magazine articles “for educational purposes” under the guise of a “fair use” concept that has already been rejected, shot down in federal court in 2017.
I’m willing to believe that you, as a relatively new minister of the crown, haven’t had time to read every background paper that gets heaped on your desk and that to some extent you are forced to rely on the people who advise you. But if you do take the time (and please do) to re-examine and re-think this particular lawsuit, I hope you’ll come to realize the advice you got was wrong-headed.
The optics of abandoning the suit are good. This lawsuit was an ethical train wreck set in motion by the Liberals. There’s still time to cut your losses and save some honour.
The feds made a mess of updating the Copyright Act back in 2012. They somehow muddied the definition of “fair use” – how much of a book, article, or poem – can be copied for free. This lack of clarity fed the appetites of anti-copyright activists who encouraged university and public school administrators to think “a new consensus” had been reached. They argued that quick and easy “public access” to information was more important than intellectual property rights. That it was more important for cash-starved school systems to get something for free than it was to pay the workers who had created the books and poems and articles.
But the argument was bogus.
It was the same empty-minded moral sludge used previously to justify the wholesale downloading and theft of music and movies. Digital technology made it easy to steal. Too easy. There was virtually no way to stop it. So, what the heck: everybody’s doing it… school boards and universities might as well get in on the looting, eh?
“Information wants to be free,” came the cry of the ethically challenged. Yeah, sure. Free, until it’s your information, music, movie, performance or writing that someone else wants to steal. Which brings us back to the current lawsuit.
There never was a “new consensus” about what constitutes fair use. In fact, the Federal Court of Canada very quickly ruled against this libertarian twaddle. When York University published guidelines in 2017 stating that “the new definition” of fair use allowed their faculty and staff to copy up to ten percent of a book without compensation—including entire chapters, poems and articles—the court said no. Unequivocally—no. Shame on you, York! Shame on you, UBC!
For reasons that defy common sense, school administrators across the country chose to ignore the ruling. They pounced on the so-called lack of clarity in defining fair use and decided they could stop paying to copy more than 150 million pages per year.
The federal government, recognizing that the copyright issue needed to be clarified, is only now beginning to review the mess that was made in 2012. Which means there is still no consensus and therefore the original ruling against York University is still the law of the land. So why would any clear-thinking school administrator or provincial government be pressing ahead with a lawsuit that uses faulty reasoning to get something for nothing at the expense of some of Canada’s poorest paid workers?
A lucky few writers in Canada also have jobs in universities or as school teachers—jobs which help them earn a livable wage. But most don’t. Most writers have no sinecure; no reliable monthly paycheque, no job security, no benefits. A recent survey of writers nationwide documented that 83% earned $15,000 or less per year from writing; 73% earned $10,000 or less. In other words, writers in Canada earn significantly below the national median. If the illegal copying of their work sounds like an unfair labour practice—you’re right: it is.
I realise that after years and years of budget cuts to education—none of which were imposed by the NDP—that schools and universities are desperately looking for ways to cut corners. But writers are not in a position to subsidize underfunded schools. Bottom line: you cannot cover a budget shortfall in public education by stealing from writers.
As a writer and a wannabe supporter of your government, my advice is: Please just say no. Please tell me that no self-respecting NDP government would agree to continue a malicious legal action against a group of the poorest paid workers in the country—the writers of Canada’s novels, poetry, non-fiction books and magazine articles. “Piracy is not a victimless crime.”
Jerry Thompson, Sechelt, B.C.
Jerry Thompson is author of Cascadia’s Fault, (HarperCollins) a science mystery and cautionary tale about North America’s most powerful earthquake. He has written for Reader’s Digest, Equinox, Vancouver Magazine, The Globe and Mail, CBC, CTV, Global, and The Discovery Channel. As a documentary writer and director he has covered everything from Sonic Magic—the wonders of sound in a digital age—to the search for Earth’s twin; from geo-engineering the climate to the enigma of Parkinson’s disease; from fishing, forestry and the First Nations of Canada to the impact of NAFTA on Canada’s water resources. He is a member of the Federation of B.C. Writers, The Writers’ Guild of Canada and The Writers’ Union of Canada.