Library Community Response to Consultation on Copyright and Online Intermediaries

June 3, 2021

The Canadian Federation of Library Associations (CFLA) this week released a joint response, with the Canadian Association of Research Libraries (CARL) and the Canadian Urban Libraries Council (CULC), to the Government of Canada’s Consultation on a Modern Copyright Framework for Online Intermediaries.

The response was also endorsed by the Atlantic Provinces Library Association (APLA), College Libraries Ontario (CLO), the Council of Atlantic University Libraries (CAUL), and the Ontario Library Association (OLA).

Response to Consultation on a Modern Copyright Framework for Online Intermediaries

May 28, 2021

This submission is prepared by the Canadian Federation of Library Associations (CFLA), with the support of the Canadian Association of Research Libraries (CARL), and the Canadian Urban Libraries Council (CULC). It is a response to the Government of Canada’s Consultation on a Modern Copyright Framework for Online Intermediaries.

The Canadian Federation of Library Associations/Fédération canadienne des associations de bibliothèques (CFLA-FCAB) is the united, national voice of Canada’s library community. Our purpose is to advance library excellence in Canada, champion library values and the value of libraries and influence national and international public policy impacting libraries and their communities. Our membership includes national, provincial, regional, special and territorial library associations across Canada.

Libraries have a societal role to provide equitable access to information and preserve knowledge. In Canada, the Copyright Act recognizes the unique function of libraries to achieve the government’s public policy objectives around research, innovation and lifelong learning through the Act’s exceptions and limitations.

This submission provides the library community’s perspective on ways that libraries may be impacted by policy changes that are intended to regulate the “web giants”, and includes recommendations that will ensure that libraries and affiliated organizations, such as archives, museums, and educational institutions, can continue to carry out their public service missions and not be subject to the same onerous restrictions as web giants. Libraries act as online intermediaries in several ways: by providing free internet connections and access to computers, by creating digital collections of materials for education, preservation, and research purposes, and by offering platforms that enable user participation.

CFLA appreciates the statement in the Consultation Paper that “significant changes to Canada’s basic model of intermediary liability” are not presently being contemplated. The library community notes the complexity of copyright issues associated with online intermediaries and the short timeline provided for response to the Consultation Paper, which has limited our ability to fully explore the potential implications of the changes contemplated.

Summary of Recommendations

• Maintain the safe harbours associated with Communication to the Public by Telecommunication 2.4(1)(b) which states that a person whose only act consists of providing the means of telecommunication to the public does not communicate that work or other subject matter to the public
• Maintain the safe harbours associated with Network Services 31.1(1) which states that a person who provides services related to the operation of a digital network that provides means for telecommunication or reproduction of a work does not infringe copyright by providing those means.
• Clarify that these safe harbours apply to libraries, archives, museums and educational institutions that provide internet connectivity and/or devices that enable access for the public for non-commercial purposes.
• Do not introduce new obligations for monitoring use, blocking sites, or storing user information at the digital network provider level.
• Maintain the limitations on statutory damages for failure to perform obligations related to notices found in s.41.26(3) and ensure these limits continue to apply to libraries, archives, museums and educational institutions operating internet access for non-commercial purposes.
• Provide an exception that excludes libraries and educational institutions from the definition of online intermediaries, and excludes libraries and educational institutions from any increased responsibility or liability being considered for content repositories and information location tools that they manage or host.
• Maintain limitations on statutory damages for non-commercial infringement found in s.38.1(1), and limitations for LAMs found in 38.1(6)(b)
• Ensure that there are continued limitations on remedies available under s.41.27 against providers of information location tools for non-commercial purposes when those providers are libraries, archives, museums, and educational institutions.
• Continue to apply the notice and notice, rather than the notice and takedown regime as a way to deal with allegations of copyright infringement.
• Limit new obligations applied to non-commercial intermediaries such as LAMs and educational institutions.
• Recognize the importance of research and education and the application of fair dealing to any intermediary activities conducted by LAMS and educational institutions in considering new enforcement measures.
• Do not introduce an ancillary copyright regime for press publishers due to risks to the use of the Internet for researchers and the general public.
• Do not introduce extended collective licensing for online intermediaries.
• Exclude works subject to Crown copyright from any categories of works considered for remuneration through collective licensing schemes.
• Assign a Creative Commons licence to all publicly available government works.
• Require that rights management organizations publicly disclose the funds received that are distributed to rights holders in Canada, retained when rights holders cannot be located, and retained to administer the collective society.
• Introduce transparency into the validity of copyright claims under the notice and notice regime.

The full document is available from the CFLA website.

(Via Canadian Federation of Library Associations)