Copyright Corner (September, 2019)

Copyright Corner, September/October 2019 The INDU Report on the Statutory Review of the Copyright Act In the previous column (January/February 2019) I sketched an overview of the review of the Copyright Act conducted by the House of Commons Standing Committee on Industry, Science and Technology (INDU). Now that INDU has completed the review, in this issue we take a look at highlights of its report delivered to Parliament in June. It is notable that the first report on the statutory review was filed in May by the Standing Committee on Canadian Heritage (CHPC), which had been invited by INDU to assist by investigating remuneration models for artists and creative industries. The two reports are an interesting study in contrasts in how they approach the central purpose of copyright – balancing just rewards for creators of original works with good public access to those works for the encouragement of learning. Among the voluminous evidence gathered by INDU over 2018 were 263 witness testimonies and 192 written briefs. The wide range of issues and perspectives addressed in the INDU report attests to the Committee’s goal of understanding and taking into account the concerns of more than just large corporate owners.1 The following are among INDU’s 36 recommendations, which, on the whole, reflect an even-handed consideration of copyright’s public and private interests: • Recommendation 4: develop consistent indicators and authoritative data on the economic impacts of copyright legislation in Canada • Recommendation 5: consult with Indigenous groups, experts, and other stakeholders on the protection of traditional arts and cultural expressions • Recommendation 6: if the copyright term is extended, consider amending the Copyright Act to make copyright enforceable beyond the current term only for works that have been registered • Recommendation 16: consider establishing facilitation between the educational sector and the copyright collectives to build consensus towards the future of educational fair dealing in Canada • Recommendation 18: amend section 29 of the Copyright Act to make the list of purposes allowable under the fair dealing exception illustrative rather than exhaustive • Recommendation 19: modernize copyright policy to allow circumvention of digital locks for non-infringing uses of the content On the key issue of educational fair dealing, the report makes this observation: The Canadian publishing sector is struggling to adjust to market disruptions that predate and are unrelated to amendments contained in the CMA. These disruptions will persist even if Parliament removed every single exception added to the Act in 2012. The decline of collective licensing in education has arguably more to do with technological change than it does with fair dealing. (p.64) 1 For example, the report acknowledges each of six recommendations included in the brief submitted by the U of L. At the same time, the report reveals uncertainty about how educators assess fair dealing: Given that the fair dealing exception is normally applied on a case-by-case basis and in consideration of a number of different factors, condoning the use of copyrighted content under fair dealing on the basis of a bright-line criterion is questionable. (p. 64) And in the face of variant approaches taken by educational institutions to address copyright compliance and infringement, the report states the Committee found it “difficult to determine whether the education sector has adopted adequate measures to prevent and discourage copyright infringement since 2012.” (p. 64) While characterizing how educational institutions assess non-infringing uses as “one-size-fits-all” seems unfairly simplistic, the above excerpts suggest it could be useful for the institutions to collaborate on articulating good practices that address copyright compliance mechanisms and measures. In general, the INDU report offers a thoughtful and reasonably balanced assessment of the current functioning of the Copyright Act. I hope it eventually receives the attention and timely follow-through from Parliament that it deserves. On a related note, another item to watch for in the coming months is a decision from the Federal Court of Appeal (FCA) in the appeal of the 2017 Federal Court decision in the Access Copyright v. York University case. The FCA hearing was held in March 2019, the central issues being the fairness of York’s fair dealing guidelines (which are similar that of the U of L and other Canadian educational institutions) and whether a tariff is mandatory once it is certified by the Copyright Board. As always, if you could use some help with copyright matters in your teaching, research or other U of L work, please feel free to contact me. Rumi Graham University Copyright Advisor E-mail: copyright@uleth.ca Phone: 403-332-4472 Website: www.uleth.ca/copyrigh