With another Fair Dealing Week in the books, we look to what the year ahead may bring for Canadian copyright. There is always the potential for the unexpected, of course, but here are several items likely to be on every copyright watcher's radar in the coming months1 :
1) Access Copyright v. York University — Federal Court of Appeal
More than 18 months after an Ontario Federal Court justice brought down his controversial ruling against York University in the Access Copyright v. York case, the appeal is being heard on March 5 - 6. Five volumes of appeal documents have been filed, and a number of parties have sought leave to intervene (a relative novelty in Canadian courts of appeal). Successful applicants for intervenor status include Universities Canada and (jointly) CAUT and the Canadian Federation of Students, all of whom will be arguing that the finding against York was flawed and should be overturned; intervenor status has also been granted to a coalition of the Association of Canadian Publishers, the Canadian Publishers Council, and the Writers Union of Canada, which will be urging the Court of Appeal to uphold the 2017 ruling in Access Copyright’s favour.
There is no set timeframe for the Court of Appeal to render its decision, but given the complexity of the original case, and the high level of interest and controversy it has attracted, it will likely be a relatively long wait (the original decision came over a year after closing arguments, more than double the typical amount of time for a Federal Court ruling). Furthermore, the issues at stake are so significant that — barring the unlikely event of an out-of court settlement — the parties on the losing end of the Federal Court of Appeal decision will almost certainly seek to bring the case to the Supreme Court of Canada. It will probably be several years, then, before this lawsuit can be considered “settled”.
2) Copyright Act — Statutory Review
The House of Commons’ Standing Committee on Industry, Science and Technology (INDU, for short) was tasked with carrying out a five-year review of the 2012 Copyright Modernization Act late in 2017. INDU began meetings and consultations on this file in February, 2018: after hearing from 209 witnesses, and receiving 192 written briefs (as well as 6,000+ e-mails), the Committee advised at the end of January that it will begin drafting its report. No observers seem willing, at present, to hazard a prediction as to either the timing or content of the INDU report (although the approach of the next federal election, set for this October, will presumably have an impact).
It is disappointing to note, however, that INDU has come under intense pressure from some parties to report to Parliament as follows: 1) that including “education” as a fair dealing purpose in 2012 reforms to the Copyright Act has occasioned rampant copyright abuse in Canadian schools, universities, and colleges, thereby harming writers and publishers, and that “education” as a fair dealing purpose must therefore be removed or effectively negated through conditions and codicils, and; 2) that the Copyright Board of Canada must be empowered to impose mandatory copying tariffs on Canadian schools and universities / colleges, regardless of whether or not they have agreed to participate in Access Copyright’s collective licensing scheme. Relatedly, it is argued that Access Copyright should be allowed to avail itself of punitive statutory damages to further punish institutions that choose not to sign licenses with Access Copyright.
These arguments have been forcefully rebutted by a range of Canadian educational and library groups, including the Canadian Federation of Library Associations, the Canadian Association of Research Libraries, the Canadian Alliance of Student Associations, the Canadian Federation of Students, the Canadian Association of University Teachers, the Council of Ministers of Education, and Universities Canada.The Canadian Alliance of Student Associations and CAUT are also promulgating online petitions — found here and here — calling for the protection of fair dealing in education.
3) NAFTA 2.0 — Reducing the Public Domain?
The United States-Mexico-Canada Agreement (USMCA) — also known as NAFTA 2.0 — signed in November, included a regrettable and unexpected provision that would see the standard term of copyright protection lengthened from life of an author plus 50 years to life plus 70 years. If enacted, this would delay works’ entry into the public domain in Canada by 20 years, a significant and unfortunate loss to Canadian research, education, and innovation. While ratification of USMCA looks increasingly uncertain, this episode serves as a reminder of how national efforts at legislative balance in copyright (and elsewhere) can be disrupted by trade partners’ demands.
4) Budget Implementation Act, 2018, No 2 — Hopeful Signals?
Although it bore an unfortunate resemblance to the “omnibus legislation” that became notorious under the Harper Conservative government, the Liberals’ massive Budget Implementation Act, 2018, No 2 contained some encouraging legislative provisions for those advocating for balanced Canadian copyright. Subdivision “C” of Act, for example, takes aim squarely at those who sought to abuse Canada’s notice-and-notice regime for dealing with online copyright infringement; although notice-and-notice was an improvement on the notice-and -takedown provisions of the US Digital Millennium Copyright Act, when it was enacted in 2015, there were a flood of fraudulent demands to individual Canadians offering to settle alleged copyright infringement with direct payment. Under the Budget Implementation Act, however, demands for direct payment are now illegal.
Also, the federal government proved it was serious about fast-tracking much-needed reforms for the Copyright Board of Canada, and Subdivision “H” of the Budget Implementation Act makes important fixes to the Board’s regulatory regime, including: the Board is now mandated to focus on “ the public interest and fairness amongst multiple interests” when setting copying royalties and tariffs, and; the Board cannot set retroactive tariff payments — new tariffs apply only a go-forward basis. Furthermore, and despite frantic last-minute lobbying from Access Copyright and other rights-holders groups, the government declined to extend the mandatory tariff provisions in areas such as music to the collective licensing of copying in libraries, and also did not allow Access Copyright to subject libraries to the punitive statutory damages. In summary, then, the government seems to have totally ignored the demands of copyright maximalists in its approach to Copyright Board reform, and it is to be hoped they will be similarly judicious in their approach to whatever recommendations may come from the broader Copyright Act review.
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.
- March 04, 2019.
1 Background information for this document was drawn from a range of sources, but particular acknowledgement is made of Dr. Margaret Ann Wilkinson's January 30th, 2019 presentation to the Ontario Library Association Superconference, "Copyright Update -- What's Not 'In the Cards' !"