Copyright Watch -- Winter 2017

Although the past several years have not seen the large number of major changes as took place in the 2010-2012 period, the Canadian copyright environment is still unsettled, and the Library continues to monitor developments closely. We remain committed to an educative approach, based on fair dealing and other provisions of the 2012 Copyright Act, but this commitment must be grounded in an awareness of ongoing public policy discussion, jurisprudence, and legislative reform. 

With this in mind, the Library has noted with interest a couple of 2015-2016 legal findings, including:

  • The Supreme Court of Canada's November, 2015 ruling in the CBC v SODRAC case (2015 SCC 57). One of the issues addressed in this complex ruling was whether or not collective licenses and tariff payments for copying -- such as those propounded by Access Copyright and certified by the Copyright Board of Canada -- could be considered mandatory. By majority decision, the Court found that: "licenses certified by the [Copyright] Board do not have mandatory binding force." (para. 113) This is a very encouraging decision, since it effectively means that the University cannot be forced to make payments -- retroactively or otherwise -- to Access Copyright, unless UPEI were to choose to sign another licensing agreement with Access Copyright.

  • More recently, the Federal Court of Appeal issued a January, 2017 ruling (2017 FCA 16) on a judicial review requested by Access Copyright, in which AC effectively appealed a 2016 decision from the Copyright Board of Canada setting copying tariffs for Canadian K-12 schools (outside Quebec) at rates much lower than those requested by Access Copyright. The Court referred the matter back to the Copyright Board, but largely on technical issues, and did not rule on one of the matters before the Board, namely the K-12 schools' application of fair dealing practices.

The next legal test for educational fair dealing will most likely come with a widely-anticipated ruling from the Federal Court on Phase I of the Access Copyright v York University case (Court Number T-578-13). The Court heard closing arguments in June, 2016, and normally takes about six months to render a decision, so a ruling is expected at any time. The key points the Court is expected to address include: whether or not the fair dealing guidelines in use by York do, in fact, constitute fair dealing, and; whether or not licenses and tariffs certified by the Copyright Board can be made mandatory and retroactive (although this last point is likely moot, in view of the Supreme Court's CBC v SODRAC decision (above).

2017 will also bring the first legally mandated five-year review of the 2012 Copyright Act. The timeframe and procedures for this review have not yet been announced (because the 2012 Act was not proclaimed in force until November of that year, the five-year review need not formally commence until November, 2017), but a number of issues are expected to figure prominently, including:

  • A November, 2016 report from the Senate Committee on Banking, Trade and Commerce desribed it as "urgent" that the 2017 review," should include a thorough, in-depth examination of the Copyright Board of Canada's mandate, practices and resources."

  • It is known that parliamentarians and senior civil servants have been lobbied by some rightsholders' groups -- especially in the educational publishing industry -- to repeal or restrict education as a fair dealing purpose under the Copyright Act.

  • The "notice and notice" regime, which requires Internet Service Providers to pass notices regarding alleged copyright infringement to their subscribers / clients has been criticized since its implementation in 2015 due to a significant number of infringement notices containing threats of legal action and unwarranted settlement claims. There is hope that the content of infringement notices will be better-regulated going forward.

Copyright may also feature -- as it often has in the past -- in any discussions around international treaties and trade agreements. In this context, a possible reopening of the NAFTA agreement, at the behest of the Trump administration, and the forthcoming implementation of the EU-Canada Comprehensive Economic and Trade Agreement (CETA) will both bear careful watching.

As always, please do not hesitate to contact the Library with any copyright questions or concerns (or news) you may have: Simon Lloyd (slloyd@upei.ca * 902-566-0536) would be pleased to speak with you; faculty and current students can also contact the Subject Librarian for their department

- February 22, 2017