Library Community Response to Consultation on Copyright Term Extension

March 29, 2021

The Canadian Association of Research Libraries (CARL) today released a joint response, with the Canadian Federation of Library Associations (CFLA), to the Government of Canada’s Consultation Paper on copyright term extension. The response was also endorsed by the Canadian Urban Libraries Council (CULC) and the Canadian Association of Law Libraries (CALL).

Joint Response to Consultation on Copyright Term Extension

March 29, 2021

This submission provides the library community’s perspective on the five options presented, as well as a registration system. We then recommend additional policy opportunities that the government should consider when implementing the CUSMA requirements in Canada’s domestic legislation. The library community notes the complexity of these issues and the short timeline provided for response to the Consultation Paper, which has limited our ability to fully explore the implications of various options.

Summary of Recommendations

General Recommendations: Registration and Exceptions for Orphan / Out-of-Commerce Works

CFLA and CARL recommend that Canada expressly explore options for extending the scope of the current copyright registration system in order to add necessary counterbalances to the negative effects which will result from the term extension mandated under CUSMA. In particular, Canada should explore the feasibility of a registration requirement for the final twenty years of copyright protection – and it should do so separately, independent of the current consultation which raises related but distinct issues relating to orphan and out-of-commerce works.

With respect to the Options raised in the current consultation, CFLA and CARL concur that option 3 of the options presented in the “Consultation paper on how to implement an extended general term of copyright protection in Canada” (Consultation Paper), combined with additional proposed policy measures, presents a preferable approach for the library community. Option 3 would permit the use of orphan works and/or outof-commerce works.

In addition, CARL and CFLA generally support the portions of Option 5 that would create exceptions for the use of materials 100 years after their creation, and in particular those portions which apply to Crown copyright. However, the numerous, complex problems relating to Crown copyright would benefit from separate study, consultation, and resolution. The inclusion of Crown works in this option is incidental and does not directly align with CUSMA.

Additional Recommendations for Implementation

• Amend Section 29 of the Copyright Act to make the list of purposes allowable under the fair dealing exception an illustrative list rather than an exhaustive one
• Repeal subsection 14(1) of the Copyright Act, or at minimum amend the subsection to include a clause that the creator may waive reversion rights at the time of copyright assignment to LAMs.
• Amend section 2 of the Copyright Act to change the definition of commercially available.
• Establish a scheme of limited liability for libraries, archives and museums for use of orphan and outof-commerce works.
• Amend the Copyright Act to make it clear that no exception to copyright can be waived or overridden by contract
• Amend the Copyright Act  to make it clear that no exception to copyright can be waived or overridden by contract and that Technological Protection Measures (TPMs) can be circumvented for non-Infringing purposes.
• Address the need to respect Indigenous Knowledges.
• Find a solution to allow for digitization of unpublished works.
• Assign a Creative Commons licence to all publicly available federal government publications.
• Extend Options 3 and 5 to apply to educational institutions and other non-profit organizations.
• Explore INDU’s Recommendation 8, to add a non-assignable right to terminate any transfer or exclusive right 25 years after assignment.
• The legislative instrument should be a stand-alone bill to amend the Copyright Act.

The full document is available from the CARL website.

(Via Canadian Association of Research Libraries)