GLAM Sector Submissions on Copyright Act Review

September 9, 2018

Over the last few months, associations representing the Canadian GLAM (Galleries, Libraries, Archives, and Museums) Sector have submitted recommendations for changes to the Copyright Act to the House of Commons Standing Committee on Industry, Science and Technology.

The submissions from the Canadian Federation of Library Associations (CFLA), the Canadian Association of Research Libraries (CARL), Canadian Museums Association (CMA), Canadian Council of Archives (CCA), and others touch on similar topics, including:

• Copyright override
• Crown Copyright
• Fair dealing
• Indigenous Knowledge
• Orphan works
• Technological Protection Measures (TPM)
• Term Extentions

The Standing Committee on Industry, Science and Technology Statutory Review of the Copyright Act website includes briefs submitted by GLAM sector associations, individuals, and other stakeholders.

Robert Tiessen

The submission from Tiessen, a librarian at the University of Calgary and former chair of the Canadian Library Association’s Copyright Committee, focuses on payments to Access Copyright:

One of my biggest concerns over many years is that the way reprographic copyright collectives (ie Access Copyright and Copibec) have been set up over the years puts Canadian education at a significant disadvantage compared to educational institutions in the United States.

…

Making it more difficult for Canadian educators to use fair dealing in an educational setting will make Canada and Canadian schools, colleges and universities less competitive vis a vis the United States. This is not the time to reduce our competitiveness versus the Americans. Access Copyright is a very opaque organization. There are many problems with how its payments are structured and whether or not publishers (especially large international publishers) receive double payment when an educational institution has already purchased a publisher specific licence that provides the necessary terms and conditions. If Canadian creators and small Canadian publishers need extra help at this time, there needs to be a better solution than pushing more money to Access Copyright.

Robert Tiessen’s full submission is available on the Committee website.

Amanda Wakaruk

The submission from Wakaruk, copyright librarian at the University of Alberta and long-time member of the Canadian government information community, focuses on crown copyright:

Government publications should be made available to the public without copyright protection as such protections are no longer relevant and present real barriers to scholarship, journalism, and democracy. I ask the Committee to address the issue of Crown copyright as part of their work during the current review of the Copyright Act.

Amanda Wakaruk’s full submission is available on the Committee website.

Canadian Federation of Library Associations (CFLA)

The CFLA submission includes six recommendations on five topics:

Fair Dealing
That Parliament should leave Sections 29, 29.1 and 29.2 of the Copyright Act unchanged to retain current allowable uses.

Contract Override
That Parliament amend the Copyright Act to make it clear where the Act provides that an activity is not an infringement of copyright no contract can override the Act, using the Irish legislation as a model

Technological Protection Measures
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).

Crown Copyright
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.

Indigenous Knowledge
That the Copyright Act respect, affirm and recognize Indigenous peoples’ ownership of their traditional and living respective Indigenous knowledge.

The Federation’s full submission is available on the CFLA website.

Canadian Association of Research Libraries (CARL)

The CARL submission includes recommendations on ten areas of interest:

Retain Educational Fair Dealing
Recommendation: 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.

Retain Current Copyright Term
Recommendation: Maintain the current term of copyright.

Protect Copyright Exceptions from Contract Override
Recommendation: Amend the Act to make it clear that no exception to copyright can be waived or overridden by contract.

Allow Text and Data Mining without Rightsholder Permission
Recommendation: Amend the Act to allow text and data mining without permission from the copyright holder.

Allow the Circumvention of Technological Protection Measures for Non-Infringing Purposes
Recommendation: Amend the Act to clarify that the circumvention of TPMs is only illegal for acts that are an infringement of copyright.

Revisit Crown Copyright
Recommendation: 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.

Retain Cap on Statutory Damages for Non-Commercial Infringement
Recommendation: Retain the $5000 cap on non-commercial statutory damages

Do Not Impose Mandatory Tariffs
Recommendation: 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.

Refine Education and Library Exceptions
Recommendation: Remove unnecessary limitations and expand the scope of some of the exceptions related to both educational institutions, and libraries, archives and museums.

Recognize Traditional Knowledge
Recommendation: Commit to working domestically and internationally to find the appropriate means to recognize and protect traditional knowledge.

CARL’s full submission is available on the Committee website. A separate document on Text and Data Mining was submitted by the Portage Network.

CARL also submitted two memos in answer to two lines of questioning from the Committee:

• Fair Dealing/Use: How Canada fits internationally
• A Guide to Canadian Research Libraries’ Spending on Content

Canadian Museums Association (CMA)

The CMA submission focuses on three issues of interest to the museum community, as well as an issue that requires further review:

Digitization of collections for internet access

Museums request an exception in the Copyright Act allowing not-for-profit museums to make a low resolution digital image of a work of art protected by copyright, unless specifically prohibited by the copyright owner, and to make it available on line for reference to its collections, the works they include and the artists who are represented therein.

More specifically, such an exception would allow the distribution (communication by telecommunication) of a database or electronic catalogue accessible to the public, which would contain all pertinent information on the artists and copyrighted pieces in the museum’s collection, including low definition images of those works of art.

For greater clarity, such distribution would be subject to specific conditions concerning image quality, the sole objective being to allow the public to see and understand the information related to a piece of art.

Technical Protection Measures

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.

Orphan Works

The CMA recommends that a special study be conducted with all stakeholders on the various solutions adopted in different jurisdictions concerning Orphan Works, and to make recommendations for the best possible practice.

Artist’s Resale Right

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.

The CMA submission is available on the Committee website.

Canadian Council of Archives (CCA)

The CCA submission, endorsed by the Association of Canadian Archivists and l’Association des archivistes du Québec, includes recommendations in seven areas of interest:

Technological Protection Measures – TPMs

Permit circumvention of TPMs by libraries, archives and museums for any activity that is otherwise allowable under the Copyright Act.

Crown Copyright

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:

• • identify the ways Crown copyright is currently addressed by various levels of government,
  • identify the many problematic issues,
  • explore the solutions adopted by other countries,
  • consult with stakeholders, and
  • recommend appropriate measures that will transform this outdated provision into a measure that serves the public interest in the digital age.

Reversion

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.

Indigenous Knowledge

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.

Orphan Works

The federal government convene a working group of concerned stakeholders to further study and propose viable solutions to orphan works issues.

Term Extension

There should be no extension of the terms of copyright protection.

Fair Dealing

The current list of allowable purposes in the Fair Dealing provisions of the Act should remain unchanged.

The Council’s full submission is available on the CCA website.

Bibliothèque et Archives nationales du Québec (BAnQ)

The BAnQ submission includes recommendations in eight areas of interest:

Term of copyright

Recommendation 1: Maintain the current term of copyright in Canada.

Fair dealing

Recommendation 2: Maintain the fair dealing exception in its current form

Exceptions for libraries, archives and museums

Recommendation 3: Maintain and enhance exceptions for libraries, archives and museums.

Recommendation 3.1: Add a provision in section 30.1 of the Act to authorize the reproduction and dissemination of samples from the Internet or any other similar media.

Recommendation 3.2: Extend to BAnQ the right to effect the fixation of a copy of a publication that is provided by telecommunication under legal deposit, similar to section 30.5(b) pertaining to Library and Archives Canada.

Non-commercial user-generated content

Recommendation 4: Retain the exception for non-commercial user-generated content.

Crown copyright

Recommendation 5: Repeal or revise section 12 of the Act to provide ample opportunities for public dissemination and use.

Technological protection measures

Recommendation 6: Authorize libraries, archives and museums to circumvent TPMs where uses or manipulations are permitted by the Act, particularly under sections 30.1 et seq.

Contractual clauses limiting or excluding exceptions in the Act

Recommendation 7: Protect the exceptions provided for in the Act from contractual clauses that may limit or exclude them.

Indigenous intangible cultural heritage

Recommendation 8: Pay special attention to the recognition and protection of Indigenous intangible cultural heritage during the copyright review process.

The BAnQ submission is available from the committee website.

British Columbia Library Association (BCLA)

The BCLA submission includes recommendations in four areas of interest:

Fair Dealing

The Government of Canada should leave Sections 29, 29.1 and 29.2 of the Copyright Act unchanged to retain current allowable uses.

Existing Exceptions for Libraries and their Users

The Government of Canada should leave Sections 29.21, 30.1, 32 and 32.01 of the Copyright Act unchanged to retain current allowable uses.

Libraries, copyright and the digital environment

Do not use the Copyright Act as the mechanism to expand the remuneration and supports to creators. Instead we recommend the following:

Expand the Public Lending Right (PLR) to include textbooks, professional guides and practical guides as educational publishing also contributes to Canadian culture and the understanding of our nation. The PLR should also include the holdings of post-secondary libraries.

The Government of Canada should investigate other means of incentivizing and supporting cultural production by Canadians, including ensuring that authors and publishers are aligned with the preferences of Canadian readers to ensure that their products respond to the needs of the Canadian public. For example, research that helps to identify what Canadians choose to read and thus encourages the writing and publication of more of that content would increase the financial wellbeing of Canadian literary authors and publishers by causing Canadian readers and libraries to buy more Canadian content over international content.

Government support of publishing, such as the Canada Book Fund, should expand to include assistance in bringing digital versions of books to market.

Protecting Copyright Exceptions from Contract Override

The Government of Canada should amend the Canadian Copyright Act to make it clear no exception to copyright can be overridden by contract, using the Irish legislation as a model.

The submission also endorses the CFLA recommendations on Indigenous Knowledge.

The BCLA submission is available on the committee website.

Canadian Association of Law Libraries (CALL)

CARL submitted two briefs to the committee: the first addressing interlibrary lending, fair dealing, the Act’s relationship with licenses, Indigenous knowledge, and USMCA implications; and the second relating to primary law.

Summary of recommendations in brief #1:

• Section 30.2 (5.02), on interlibrary lending, should be removed. Its enforcement is not feasible. If 30.2 (5.02) remains, it should establish a reasonable practice that would constitute compliance, for instance to add “reasonable” before “measures.”
• No change should be made to the Act in respect of fair dealing. The Act offers a flexible and responsive approach that is fair to both copyright holders and users of protected materials.
• The Act should state that, where access to copyright-protected content is provided by license, clauses that purport to disallow the Act’s library exceptions or user rights are unenforceable.
• 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.
• USMCA ratification is as an opportunity both to clarify explicitly that Crown or other copyright does not subsist in primary law and to confirm a flexible and responsive approach to fair dealing that balances user rights and rights of authors

Summary of recommendations in brief #2:

• The Act must clarify that Crown or other copyright does not subsist in primary law. Copyright in primary law is antiquated and hinders access to justice and to innovation. To the extent the royal prerogative continues to be a source of copyright in Canada, the Act must state it does not cover primary law.
• Options to legislatively achieve this outcome include these:
  • a provision confirming that primary laws are not “works” within the meaning of the Act;
  • a provision confirming that copyright does not subsist in primary law;
  • an explicit statement that primary law is not prepared or published by or under the direction or control of Her Majesty or any government department and is not captured by the royal prerogative; or
  • an explicit statement that primary law is in the public domain.
• USMCA ratification is as an opportunity to clarify explicitly that Crown or other copyright does not subsist in primary law.

Both CALL submissions are available on the committee website: Brief #1 and Brief #2

Canadian Urban Libraries Council (CULC)

The CULC submission includes recommendations in four areas of interest:

Protecting Copyright Exceptions from Contract Override

The Government of Canada should amend the Canadian Copyright Act to make it clear no exception to copyright can be overridden by contract, using the Irish legislation as a model.

Ensuring Access to Ebooks from all Publishers

The Government of Canada should ensure access to ebook content from all publishers by identifying a policy solution to restrictive licensing and pricing practices.

Existing Exceptions for Libraries and their Users

The Government of Canada should leave Sections 29, 29.1, 29.2, and 29.21 of the Copyright Act unchanged to retain current allowable uses, and maintain the exceptions for libraries, archives and museums in 30.1 and 30.2.

Supporting Canada’s Creators through Research and Cultural Heritage Programs

The Government of Canada should seek alternative ways to support the earnings of creators in Canada, outside of copyright, through increased publicly available research on publishing and reading, and through other cultural heritage support.

The CULC submission is available on the committee website.

Council of Atlantic University Libraries (CAUL)

The CAUL submission includes recommendations in six areas of interest:

1. Maintain fair dealing and educational exceptions.
2. Provide transactional — not blanket — licensing options.
3. Distinguish between use of academic and literary works.
4. Support student demand for Open Educational Resources (OER).
5. Reflect technological advances in the Copyright Act.
6. Support open access initiatives in addition to fair dealing

The CAUL submission is available on the committee website.

Council of Post-Secondary Library Directors (CPSLD) of British Columbia

The CPSLD submission includes recommendations in five areas of interest:

Fair Dealing

Maintain educational fair dealing exceptions

Maintaining Balance

• • Take actions to ensure we maintain a robust public domain
  • Remove the copyright term extension from the USMCA prior to ratification

Impact on Students

Consider the impact that balanced copyright laws with rational exceptions have on student success

Indigenous Knowledge and Reconciliation

• • Acknowledge the rights of indigenous peoples over their traditional knowledge and cultural expressions
  • Work with indigenous peoples to protect and maintain their rights

The submission also endorses the CFLA recommendations for the modernizations of Crown Copyright and on Indigenous Knowledge.

The CPSLD submission is available on the committee website.

Canadian Intellectual Property Law Scholars

The submission from Myra Tawfik on behalf of 11 Canadian intellectual property law scholars makes six recommendations:

• A process of consultation with Indigenous peoples be initiated;
• A provision allowing open access to publicly funded scientific publications be introduced;
• The status quo be maintained with respect to authorship and ownership of works created by artificial intelligence;
• Canada consider the best way to safeguard the practice of text and data mining;
• The current notice and notice regime be maintained, that statutory damages be restricted, and that copyright owners’ remedies not be expanded any further;
• Explicit reference to copyright user remedies be made and specific administrative procedures and oversight to safeguard legitimate uses of copyright works be established.

The group’s submission is available on the committee website.

Library Association of Alberta (LAA)

The LAA submission endorses the CFLA submission and makes three recommendations:

1. Establish illustrative purposes for fair dealing.
2. Create a balancing mechanism to offset the effects of CUSMA term extensions.
3. Abolish Crown copyright.

The LAA submission is available on the committee website.

Ontario Council of University Libraries (OCUL) Accessibility Community

The submission from members of the OCUL Accessibility Community focuses on

limitations in the Copyright Act that restrict the ability of library staff to provide accessible and inclusive services to users, and which also prevent individuals with disabilities from accessing the educational resources they need in a fair and equitable manner.

They recommend that Section 32.(1) of the Copyright Act be amended to remove the words “other than a cinematographic work” in order to facilitate captioning, video description, or any other acts required to make a cinematographic work accessible to a person with a perceptual disability.

The OCUL Accessibility Community submission is available on the committee website.