Highlights from the Report on the Copyright Act Review

On Monday, June 3, 2019, the federal government’s Standing Committee on Industry, Science and Technology (INDU) released its report on the…

Image for Post

On Monday, June 3, 2019, the federal government’s Standing Committee on Industry, Science and Technology (INDU) released its report on the Statutory Review of the Copyright ActCopyright Act. The Committee’s first meeting on this matter was in February of 2018, and over the course of the review process it heard from 209 witnesses and considered 192 written briefs. The final report, which makes 36 recommendations, is detailed, thorough, and balanced, and it generally demonstrates a good grasp of the issues and the differing points of view on how best to approach those issues. In this post, I will touch upon only about half of those 36 recommendations. For a summary that covers some of the other parts of the report, Michael Geist’s overview is a useful resource.

Fair Dealing

One of the most contentious issues leading up to and throughout the review process has been fair dealing, and particularly fair dealing for educational purposes. Two of the report’s recommendations focus on educational fair dealing, with a third focusing on fair dealing more broadly.

On educational fair dealing, Recommendation 16 encourages “facilitation between the educational sector and the copyright collectives to build consensus towards the future of educational fair dealing in Canada.” Recommendation 17 is that the INDU Committee “resume its review of the implementation of educational fair dealing in the Canadian educational sector within three years, based on new and authoritative information as well as new legal developments.” This is an encouraging outcome. Although it does not decide the issue, it is clear that the Committee has given some consideration to the responses from the educational sector against persistent lobbying that has blamed educational fair dealing for declining revenues to Canadian authors and publishers.

This is in stark contrast to how the same issue was viewed by the Standing Committee on Canadian Heritage (CHPC) in its 15 May, 2019, report, Shifting Paradigms. The INDU Committee went so far as to state that it “cannot endorse the proposal to limit educational fair dealing to cases where access to a work is not ‘commercially available,’ as defined under the Act”(p. 64), which had been one of the recommendations of CHPC.

From the perspective of users’ rights, Recommendation 18 is a significant positive proposal. It recommends an amendment to s. 29 of the Copyright Act to “make the list of the purposes allowable under the fair dealing exception an illustrative list rather than an exhaustive one.” In other words, the list of purposes would no longer be a complete list, but rather is intended to indicate the types of purposes that might give rise to a claim of fair dealing. This would expand the possible uses of copyright-protected works that might be permitted under fair dealing where the purpose is not among those listed but found to be in line with the listed purposes and the dealing is determined to be fair.

Mandatory Tariff

One of the more important issues for post-secondary institutions is whether Copyright Board tariffs related to their use of literary works are voluntary or mandatory, or, in other words, whether post-secondary institutions are effectively required to maintain an institutional licence with Access Copyright. Although the report discussed this issue, the Committee made no specific recommendation about it. The Committee may have been reluctant to take a position pending the Federal Court of Appeal’s decision on Access Copyright v. York University, which is expected to be issued soon.

Collective Societies

Concerns expressed to the Committee about the lack of transparency of copyright collectives gave rise to two recommendations:

Recommendation 35 of the Committee has the Copyright Board “review whether provisions of the Copyright Act empower the Board to increase the transparency of collective rights management to the benefit of rights-holders and users through the tariff-setting process,” and to report back to the INDU Committee within two years.

Recommendation 36 is for the federal government to “consider the benefits and mechanisms for increasing the transparency of collective societies, particularly with regards to their operations and the disclosure of their repertoire.”

Indigenous Knowledge

The Committee recognized the importance of addressing the ways in which the current copyright regime has failed to properly protect traditional arts and cultural expressions of Indigenous groups. Recommendation 5 calls for, among other things, a consultation “with Indigenous groups, experts and other stakeholders” to address the “recognition and effective protection of traditional arts and cultural expressions in Canadian law, within and beyond copyright legislation.”

Crown Copyright

Section 12 of the Copyright Act deals with copyright that belongs to the government. Many have called for Crown Copyright to be abolished, and the Committee points out that “no witness supported its continuation, at least in its current form — a rare point of consensus”(p.43). In light of this, Recommendation 11 may be the most puzzling recommendation in the report. This recommendation does not suggest revising the Act in relation to Crown Copyright, but simply suggests “adopting of open licences in line with the open government and data governance agenda”(p.46). This falls far short of abolishing Crown Copyright, even to the limited extent of statutes and regulations, official orders and notices, and decisions of courts and administrative tribunals. The amendment to the Copyright Act that is included in the recommendation is focused on potential copyright infringements by the Government of Canada, which is unrelated to the issues and concerns around Crown Copyright that had been brought before the Committee.

Both the Conservative Party of Canada (p.154) and the New Democratic Party (p.155) in their formal responses to the report took a much stronger position in favour of abolishing Crown Copyright than did the Committee.

Copyright Term

The length of the term of copyright protection is an important factor in the balance copyright law provides in ensuring that the benefits creators receive through copyright are limited to an appropriate extent to best serve the broader public interest. However, an extension to Canada’s copyright term has become a bargaining chip in trade negotiations. The Committee understands this problem, and it explores some creative solutions to address a prospective term extension via the USMCA. “The Committee believes that requiring rights-holders to register their copyright to enjoy its benefits after a period equal to the life of the author plus 50 years would mitigate some of the disadvantages of term extension, promote copyright registration, and thus increase the overall transparency of the copyright system” (p.38). Recommendation 6 seems intended to achieve this end.

Rights Reversion

Section 14(1) of the Copyright Act effectively limits the duration of any assignment of copyright by the creator of a work. A copyright that has been assigned by the creator to another party will automatically revert to the estate of the creator 25 years after the creator’s death. However, while this benefits the creator’s heirs, it provides no direct benefit to the creator.

Recommendation 8 of the Committee is that the Copyright Act be amended to provide creators with the right to apply to get back the copyrights they have transferred to other parties after 25 years. There is a notice period and a time window within which this right must be exercised, but this would be a significant step to allow creators to regain control of copyrights in their earlier works and, perhaps, to ensure these works remain available.

Economic Impacts

The Committee acknowledged that there was conflicting testimony and a lack of clarity regarding the economic impacts of certain copyright legislation. This gave rise to two recommendations:

Recommendation 3 of the Committee is that two Research Chairs be established: one on “Remuneration and Business Models for Creators and Creative Industries in the Digital Economy,” and one on “the Economics of Copyright.”

Recommendation 4 is that Statistics Canada be mandated “to develop consistent indicators and authoritative data on the economic impacts of copyright legislation in Canada,” with a specific focus on “the remuneration of Canadian creators and the revenues of Canadian creative industries.”

Technological Protection Measures (TPMs)

Since the introduction of TPMs into the Copyright Act in 2012, there have been concerns among users that the circumvention of a TPM for a lawful purpose might be considered copyright infringement. The Committee has gone some way toward addressing these concerns:

Recommendation 19 of the Committee is for an examination of “measures to modernize copyright policy with digital technologies,” with specific reference to TPMs, especially in relation to “the maintenance, repair or adaptation of a lawfully-acquired device for non-infringing purposes.”

Text and Data Mining

The Committee was persuaded that “facilitating the informational analysis of lawfully acquired copyright protected content could help Canada’s promising future in artificial intelligence become a reality”(p.87). Recommendation 23 of the Committee is a proposed amendment to the Copyright Act to make such uses permissible.

Computer-generated Work

Canada’s promising future in artificial intelligence also motivated proposed changes to legislation that would “distinguish between works made by humans with the help of AI-software from works created by AI without human intervention”(p.51). Recommendation 14 of the Committee is that the Copyright Act be amended, or other legislation be introduced, “to provide clarity around the ownership of a computer-generated work.”

Notice and Notice

Recommendation 25 of the Committee is for there to be regulations that “require notices sent under the notice-and-notice regime be in a prescribed machine-readable format.” This should assist internet service providers, including the University of Alberta, to have simpler and more reliable automated processes for complying with their legal requirement to forward notices.

Statutory Review

Section 92 of the Copyright Act, which was introduced in 2012, calls for a review of the Act every five years. Having just completed such a review, Recommendation 1 of the Committee is that this section be repealed. The Committee suggests that “[p]arliamentary committees should only review the Act, in whole or in part, when the need and opportunity arise”(p.24).

The release of the report and its 36 recommendations from the Committee bring to an end the first phase of the copyright review process. It remains to be seen how this government will act on the report and its recommendations, or the next government, since an election is forthcoming later this year. In short, while the report and its recommendations are a significant step in the continuation of copyright reform, their primary purpose may be to inform a new phase of advocacy and lobbying toward the next set of amendments to the Copyright Act, whenever those might happen. Given what is at stake for the post-secondary sector, now is not the time to sit back and wait to see how things unfold. The post-secondary sector must continue its efforts to communicate its positions on contentious copyright issues, along with the rationales behind those positions, to ensure that an appropriate balance within our copyright system is maintained.

For additional information about copyright at the University of Alberta, or to arrange an information session for your department or faculty, check out the Copyright Office website, or email our help desk at copyright@ualberta.ca.

Adrian Sheppard — Director, Copyright Office

Image for Post

Adrian has been the Director of the University of Alberta’s Copyright Office since April 2015. One role of the Copyright Office is to educate and inform U of A students, faculty and staff on issues related to copyright. Adrian has an LL.B. from the University of Victoria.

Note: This post is intended to provide information and perspective about copyright issues, but should not be considered as legal advice.