Churn, change, and uncertainty have continued to characterize the Canadian copyright landscape through 2020 and into 2021, creating a level of complexity that defies ready summarization. That said, there have been several recent developments of particular importance for Canadian higher education.
1. Access Copyright v. York University -- Supreme Court of Canada ruling
2. Digital Locks and Lockdowns
3. Copyright Act -- Statutory review ... and reform?
4. Copyright Term Extension: CUSMA [NAFTA 2.0]
1) Access Copyright v. York University — Supreme Court of Canada ruling
On July 30, 2021, the Supreme Court of Canada ruled in the matter of Access Copyright v. York University. In a unanimous decision, the Court dismissed the argument that Canadian universities are subject to a “mandatory tariff” regime of compulsory copyright payments to Access Copyright. This was in line with earlier Supreme Court jurisprudence and not unexpected, but the further clarification and emphasis from the Court has been welcomed by a host of intervenors and observers, including Universities Canada and the Canadian Association of University Teachers (which had intervened jointly in the case with the Canadian Federation of Students).
The Court also took the opportunity to correct the flawed analysis of fair dealing found in the original 2017 Federal Court ruling on this case, and in the appellate decision in the same matter, issued by the Federal Court of Appeal in 2020. A surprising thread in the lower courts’ decisions was the suggestion that York University had an “ulterior commercial purpose,” in trying to reduce the costs for students to access materials required for their education. The Supreme Court soundly rejected this contention, noting:
The purpose of copying conducted by university teachers for student use is for the student’s education. Funds saved by proper exercise of the fair dealing right go to this core objective, and not to some ulterior commercial purpose. Ultimately, the question in a case involving a university’s fair dealing practices is whether those practices actualize the students’ right to receive course material for educational purposes in a fair manner, consistent with the underlying balance between users’ rights and creators’ rights in the Copyright Act.
[emphasis added]
York University had also asked the Supreme Court to rule on whether or not its fair dealing guidelines did, in fact, reflect fair dealing, but the Court declined, noting that there was no “live dispute” on copyright infringement to rule on in this case, since Access Copyright does not have standing to sue for infringement (only copyright owners can do this). The Court did highlight elsewhere in its decision — reiterating its previous judgements — that fair dealing analyses must be conducted on a case-by-case basis; it remains unlikely, then, that the Supreme Court will issue a “bright line”, quantitative definition of fair dealing, since it has now passed on multiple opportunities to do so.
2) Digital Locks and Lockdowns
As higher education became a largely online experience in 2020, a disappointing trend became apparent: while some publishers and other copyright holders temporarily waived or reduced prices for online access to digital content early in the pandemic, so as to facilitate online learning, the practical benefit of such goodwill gestures was largely subsumed by a countervailing push towards generally higher pricing for e-books and other online resources, reinforced by increased use of Digital Rights Management (DRM; also known as “digital locks”). Major educational publishers are increasingly emphasizing direct-to-consumer (student) sales or rentals, and in some cases are completely refusing to sell e-textbook and other content to academic libraries. While “rental” options may sometimes offer a lower sticker price for students, academic libraries remain highly concerned about an evident trend towards (in the words of the Canadian Association of Research Libraries), “highly restricted access models geared towards extracting the maximum amount of money from students”. Such concerns had been present pre-pandemic, but have been exacerbated by the increased dependence on online content occasioned by lockdowns, and the consequent restrictions on mitigating measures, such as library reserves and interlibrary loan.
In November, 2020 CARL issued a position paper, Equitable, Affordable Access to Digital Course Materials for University Students: Issues and Solutions, calling on publishers and vendors to enact the following measures:
- Allowing sales of all published e-textbooks and e-books to libraries under a licensing model that allows for access at a cost that fairly reflects content and use.
- Making the pricing and availability of e-textbooks and e-books stable and transparent.
- Offering license options that enable reasonable, equitable access to educational content without the use of DRM.
CARL also called on academic staff to “identify alternative course materials that have better access and pricing models; and, [advocate and develop] support for the creation, adoption, and use of openly licensed, high-quality educational resources (OER), which allow for re-use and modification by instructors.” To learn more about UPEI Library supports for OER, visit https://library.upei.ca/oer
Relatedly, the Canadian Federation of Library Associations (CFLA) had called on academic libraries, and on vendors and publishers selling into the academic market, to embrace more “Open” practices and a more liberal interpretation of fair dealing during the pandemic. The UPEI Library endorses this call in principle, but also notes Supreme Court jurisprudence — most recently the Access Copyright v. York ruling — that fair dealing decisions should continue to be made on a case-by-case basis.
3) Copyright Act — Statutory Review … and Reform?
In late 2017, the House of Commons’ Standing Committee on Industry, Science and Technology (INDU, for short) was tasked with carrying out a statutory five-year review of the 2012 Copyright Modernization Act. By its own account, “the Committee consulted a broad range of stakeholders to ensure all perspectives were duly considered: it held 52 meetings, heard 263 witnesses, collected 192 briefs, and received more than 6,000 emails and other correspondence.” Its report,
presented in June, 2019, offered 36 recommendations, “aiming at reducing the opaqueness of copyright law, notably by gathering authoritative information on its impact on Canadian creators and creative industries, increasing the transparency of the collective administration of rights, and simplifying the Copyright Act.”
Many of the recommendations were quite technical, and, even if implemented, their impact (if any) on copyright practices at Canadian universities would be uncertain. Notably, however, INDU demurred on one matter directly related to educational copying, and on which it heard heated and contesting feedback: the Committee did not recommend that “education” be removed from the Copyright Act as a fair dealing purpose, or that it should only be applied to works “not commercially available”; instead, INDU committed to a further review of educational fair dealing practices within the next three years (i.e. by mid-2022).
In a remarkable indicator of how contentious any proceeding on copyright can become, INDU also had to pass comment on the work of another group of MPs, the Commons’ Standing Committee on Canadian Heritage (CHPC). Invited early in 2018 to contribute to INDU’s statutory review by “conducting a study on remuneration models for artists and creative industries, and by providing INDU with a summary of its findings,” CPHC instead presented its own report directly to the Commons in May, 2019, effectively competing with the INDU report mandated by Parliament. Procedural irregularities aside, the CPHC report, “Shifting Paradigms,” was heavily criticized by many copyright scholars and observers for its treatment of the balance between owners’ rights and user rights, being heavily slanted in favour of the former.
In all events, there has been little sign of dramatic changes to the Copyright Act as a direct result of either the INDU or CPHC reports, but some legislative changes are likely in the offing, due in part to developments elsewhere.
4) Copyright Term Extension: CUSMA [NAFTA 2.0]
At the insistence of the Trump administration, the NAFTA trade pact between Canada, the United States, and Mexico, was re-negotiated in 2017-2018. The new deal — known in this country as the Canada-United States-Mexico Agreement (CUSMA) — came into force on July 1, 2020, and included a curious and unwelcome requirement for Canada to extend its general term of copyright protection from “life plus 50” (life of the creator, plus 50 years) to “life plus 70.” The CUSMA implementation timeline requires this change to be in effect by the end of 2022. Numerous individuals and organizations — notably the Canadian Federation of Library Associations (CFLA) and the Canadian Association of Research Libraries (CARL) — strongly criticized this erosion of the public domain, and the associated worsening of the already-significant problem of “orphan” / out-of-commerce works (i.e. works no longer available for purchase and for which no identifiable rights-owner remains) which term extension will inevitably create.
In response to these concerns, the Government of Canada launched a consultation earlier this year, “to consider whether to adopt accompanying measures to mitigate the potential implications of this longer term of protection.” Among the mitigating measures recommended, CFLA and CARL have jointly proposed a requirement for copyright owners to register works for which they wish to increase protection by 20 years, from “plus 50” to “plus 70”. The CFLA / CARL response also recommends a number of other measures to make the administration of copyrights more efficient and fair.
In April - May 2021, the Government of Canada also conducted a Consultation on a Modern Copyright Framework for Online Intermediaries. This arose from the Government’s 2020 Throne Speech, which recognized the power exercised by “web giants” — including social media and streaming platforms — in controlling or influencing many of the ways in which vast amounts of online content are accessed and used. The Government pledged to, “ensure [intermediaries’] revenues are more fairly shared with Canadian creators and media”. Although Government is explicitly focussed on commercial activity online, Canadian academic libraries — which also sometimes find themselves in the role of online intermediary — are concerned that they could be indirectly impacted by measures aimed at corporate “giants”. In particular, library associations have responded to the consultation with recommendations to enhance existing “safe harbour” provisions in copyright legislation, so as to limit the legal exposure and potential costs borne by non-commercial online intermediaries, especially LAMS (libraries, archives, and museums).
As always, please do not hesitate to contact Simon Lloyd (slloyd@upei.ca / 902-566-0536) or the Subject Librarian for your faculty / department with any copyright questions or concerns (or news) you may have.
- August 19, 2021
Background information for this document was drawn from a range of sources, but particular acknowledgement is made of Dr. Margaret Ann Wilkinson's annual Copyright Update to the OLA Ontario Library Association Superconference:
(February 5, 2021)
https://accessola.com/wp-content/uploads/2021/04/OLA-Copyright-Update-2021.pdf