Copyright Act Review: GLAM Sector Recommendations vs Committee Recommendations
June 8, 2019
A look at the recommendations from the GLAM Sector on changes to the Copyright Act with the recommendations made by the House of Commons Standing Committee on Industry, Science and Technology (INDU) in its report on the Statutory Review of the Copyright Act.
| GLAM Sector Recommendations | INDU Copyright Act Review Recommendations |
|---|---|
| Accessibility OCUL: Section 32.(1) of the Copyright Act be amended to remove the words “other than a cinematographic work” | Recommendation 24 That the Government of Canada work with industry and relevant stakeholders to explore ways to support the production of works published in formats specially designed for persons with a perceptual disability, and to measure, on a yearly basis, the availability of works published in such formats. |
| Artificial Intelligence IP Law Scholars: The status quo be maintained with respect to authorship and ownership of works created by artificial intelligence | Recommendation 14 That the Government of Canada consider amending the Copyright Act or introducing other legislation to provide clarity around the ownership of a computer-generated work. |
| Artist’s Resale Right CMA: If the Committee were to recommend that ARR be added to the Copyright Act, the CMA requests the possibility to comment on any language which could be proposed. | Recommendation 9 That the Government of Canada consult with provincial and territorial governments, Indigenous groups, and other stakeholders to explore the costs and benefits of implementing a national artist’s resale right, and report on the matter to the House of Commons Standing Committee on Industry, Science and Technology within three years. |
| Copyright Term CARL: Maintain the current term of copyright. CPSLD: Remove the copyright term extension from the USMCA prior to ratification LAA: Create a balancing mechanism to offset the effects of CUSMA term extensions | Recommendation 6 That, in the event that the term of copyright is extended, the Government of Canada consider amending the Copyright Act to ensure that copyright in a work cannot be enforced beyond the current term unless the alleged infringement occurred after the registration of the work. |
| Crown Copyright CFLA: That Parliament eliminate Crown copyright on all publicly accessible government works or make those works openly licensed by default (e.g., using a Creative Commons licence). That Parliament examine section 12 to clarify the need for Crown copyright in other government works. This examination should be an open process that includes submissions, public consultations, and parliamentary hearings. CARL: Take steps towards the waiver or elimination of Crown copyright by consistently applying an open licence regime to Crown material, or by amending the Act to effectively abolish Crown copyright. CCA: Amend the Act immediately to establish that copyright in Crown works lasts for 50 years from date of creation, whether or not they are published. The federal government should commission a comprehensive study that will: | Recommendation 11 That the Government of Canada improve Crown copyright management policies and practices by adopting open licences in line with the open government and data governance agenda, with respect to any work prepared and published: That the Government of Canada introduce legislation amending the Copyright Act to provide that no Canadian government or person authorized by a Canadian government infringe copyright when committing an act, either: In the context of Crown copyright and acts done under statutory authority or for the purpose of national security, public safety, or public health, that the Government of Canada consider implementing measures to compensate rightsholders for acts done by a Canadian government or a person authorized by a Canadian government that would otherwise infringe copyright, when appropriate. That the Crown exercise copyright protections that are reasonably in the public interest. |
| Damages CARL: Retain the $5000 cap on non-commercial statutory damages | Recommendation 28 That the Government of Canada introduce legislation amending the Copyright Act to increase upper and lower limits of statutory damages provided under sections 38.1(1), 38.1(2) and 38.1(3) of this Act to account for inflation, based on the years when they were originally set. |
| Fair Dealing CFLA: That Parliament should leave Sections 29, 29.1 and 29.2 of the Copyright Act unchanged to retain current allowable uses. CARL: Continue to demonstrate support for education as an investment in innovation and in the creation of future knowledge via the inclusion of education as a fair dealing purpose. LAA: Establish illustrative purposes for fair dealing. | Recommendation 16 That the Government of Canada consider establishing facilitation between the educational sector and the copyright collectives to build consensus towards the future of educational fair dealing in Canada. Recommendation 17 That the House of Commons Standing Committee on Industry, Science and Technology resume its review of the implementation of educational fair dealing in the Canadian educational sector within three years, based on new and authoritative information as well as new legal developments. Recommendation 18 That the Government of Canada introduce legislation amending 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. |
| Indigenous Knowledge CFLA: That the Copyright Act respect, affirm and recognize Indigenous peoples’ ownership of their traditional and living respective Indigenous knowledge. CCA: The federal government engage without delay in a respectful, and transparent collaboration with Canada’s Indigenous Peoples to amend the Copyright Act in ways that recognize a community-based approach to copyright protection of Indigenous knowledge. The Archives Community commits to actively participate in this process in all ways that are appropriate. Canada participate actively in the work of the World Intellectual Property Organization (WIPO) on traditional knowledge and folklore. BAnQ: Pay special attention to the recognition and protection of Indigenous intangible cultural heritage during the copyright review process. CALL: Clarification is needed on the scope of statutory copyright at its interface with conceptions of Indigenous knowledge of different Indigenous peoples. Canada must engage in consultation with Indigenous communities and scholars of Indigenous knowledge to ensure a Canadian copyright law in harmony with Indigenous legal orders relating to Indigenous knowledge. | Recommendation 5 That the Government of Canada consult with Indigenous groups, experts, and other stakeholders on the protection of traditional arts and cultural expressions in the context of Reconciliation, and that this consultation address the following matters, among others: |
| Mandatory Tariffs CARL: Do not introduce a “mandatory tariff” regime for literary works as part of either the Copyright Board reform or the harmonization of statutory minimum damages provisions. | "It seems evident that a tariff approved by the Board under section 70 of the Act should only be mandatory to the parties of a licensing agreement to which the tariff applies—no stakeholder argued otherwise. The Committee notes that Parliament has amended provisions governing the fixing of royalty rates in individual cases as part of the latest reform of the Board. Unlike the previous section 70.2(1) of the Act, its new section 71(1) refers not to a “person” but to a “user” defined under its new section 71(6). The Committee leaves to the Board and to the courts the task of determining whether these new provisions change the state of the law regarding the nature of royalties fixed in individual cases. The Committee will have the opportunity to re-examine this issue should the Government report on the implementation of the reform of the Board, as recommended above." |
| Non-commercial user-generated content BAnQ: Retain the exception for non-commercial user-generated content. | Recommendation 20 That the Government of Canada review section 29.21 of the Copyright Act to ensure that the creator of non-commercial user-generated content is not held liable for unintended copyright infringement. |
| Reversion CCA: Replace or repeal section 14(1) (Reversion) OR amend section 14(1) to permit the author to assign the reversionary interests along with the copyrights. | Recommendation 7 That the Government of Canada introduce legislation amending the Copyright Act to provide that a reversion of copyright under section 14(1) of the Act cannot take effect earlier than 10 years following the registration of a notification to exercise the reversion. Recommendation 8 That the Government of Canada introduce legislation amending the Copyright Act to provide creators a non-assignable right to terminate any transfer of an exclusive right no earlier than 25 years after the execution of the transfer, and that this termination right extinguish itself five years after it becomes available, take effect only five years after the creator notifies their intent to exercise the right, and that the notice be subject to registration. |
| Technological Protection Measures CFLA: That Parliament amend the Copyright Act to make it clear that the Act is technologically neutral and that circumvention of TPMs is permitted for non-infringing, digital and analog uses, in sections 29; 30.1 – 30.5; and 80(1). CARL: Amend the Act to clarify that the circumvention of TPMs is only illegal for acts that are an infringement of copyright. CCA: Permit circumvention of TPMs by libraries, archives and museums for any activity that is otherwise allowable under the Copyright Act. CMA: Museums request an exception from the TPM provisions, as long as they pursue legitimate and legal ends, in a manner consistent with the current exceptions framework found in the statute, and so long as the work has been obtained legally. | Recommendation 19 That the Government of Canada examine measures to modernize copyright policy with digital technologies affecting Canadians and Canadian institutions, including the relevance of technological protection measures within copyright law, notably to facilitate the maintenance, repair or adaptation of a lawfully acquired device for non-infringing purposes. |
| Text and Data Mining CARL: Amend the Act to allow text and data mining without permission from the copyright holder. IP Law Scholars: Canada consider the best way to safeguard the practice of text and data mining | Recommendation 23 That the Government of Canada introduce legislation to amend the Copyright Act to facilitate the use of a work or other subject-matter for the purpose of informational analysis. |
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