On February 11, the Canadian Government, through the lead ministry responsible for the Copyright Act, Innovation, Science and Economic Development Canada (ISED), issued a consultation paper asking the question as to “whether accompanying measures should be adopted to address concerns that have been raised over the potential implications of a longer general copyright term”, and if so, what measures?
USMCA/CUSMA Obligations
The issue is not whether Canada will be extending its copyright term, bringing it into alignment with roughly 80 countries around the world (including most of Canada’s major trading partners), but how, i.e. whether it should adopt “accompanying measures”. Canada made a commitment in the new NAFTA agreement, aka the USMCA or CUSMA in Canada, to extend its general copyright term of protection from life of the author plus 50 years after death (known in the trade as post-mortem auctoris, or pma) to 70 years pma. The Canadian government has 2.5 years from the entry into force of the USMCA/CUSMA (July 1, 2020) to do so, in other words by the end of 2022. It could just go ahead and bring in legislation without any consultation or accompanying measures, but since the question of term extension has been frequently debated in Canada and was studied by two Parliamentary committees reviewing the Copyright Act in 2019, a process of public consultation presenting some options to consider as “accompanying measures” seems inevitable and is probably a politically astute move.
Parliamentary Review of Term Extension
The two committees of Parliament that examined term extension and other copyright issues were the “INDU” Committee (Standing Committee on Industry, Science and Technology), and the Heritage Committee. I discussed the different conclusions these two committees reached on a number of copyright-related issues back in June 2019 at the time the INDU Committee released its report, some two months after the Heritage Committee’s report, (called “Shifting Paradigms”) was made public. Both were chaired by Members of Parliament from the governing Liberal Party, and both included representatives from the two other major parties, yet they reached different conclusions on a number of copyright issues, including term extension.
While the Shifting Paradigms recommendations were more copyright and rights-holder friendly, significantly it is the ISED Minister–served by the INDU Committee–who has the statutory responsibility for copyright legislation, not the Minister responsible for Heritage Canada. (Both Departments cooperate on copyright issues and have officials that work on copyright topics, but when it comes to legislation, the “Minister” in the Act refers exclusively to the Minister of Industry, except for one section of the Act relating to customs measures, where the “Minister” is the Minister of Public Safety. The Copyright Office is part of ISED and the Registrar of Copyrights reports to the ISED Minister through the Commissioner for Patents). Despite this well-known and well-established fact, after the release of its report (which was somewhat at odds with the conclusions of Shifting Paradigms), the INDU Committee felt compelled to issue a shrill and tone-deaf press release declaring that it had “sole responsibility” for reviewing the Act, in effect dismissing the Heritage Committee report. This was seemingly a way of mollifying critics who didn’t like the conclusions reached by the Parliamentarians who drafted Shifting Paradigms. It is worth noting that the government is under no obligation to accept the recommendations of either committee.
With regard to term extension, the Heritage Committee unequivocally endorsed an extended term, recommending simply “That the Government of Canada pursue its commitment to implement the extension of copyright from 50 to 70 years after the author’s death.” The INDU Committee was more lukewarm in its recommendation, endorsing term extension “only if CUSMA is ratified”, and adding another qualification promoted by groups opposed to extending the term of protection.
“The Committee believes that requiring rights-holders to register their copyright to enjoy its benefits after a period equal to the life of the author plus 50 years would mitigate some of the disadvantages of term extension, promote copyright registration, and thus increase the overall transparency of the copyright system.”
Additional Registration Requirement?
This two-stage process, which would insert a barrier into what would otherwise be a smooth transition from a life plus 50 regime to life plus 70, was hailed by copyright critics such as University of Ottawa professor Michael Geist who claimed this would be “making the best of a bad provision”. As I commented at the time, inserting such a road-bump in the way of extension would in fact be making complex what should be simple, would increase costs for rights-holders, and would arguably be a violation of Canada’s international obligations under the Berne Convention, (given that under Berne copyright is to be conferred automatically without a registration requirement). The current Government of Canada consultation document seems to agree;
“The approach recommended by INDU raises serious questions in the context of Canada’s international obligations, as well as the costs that would be borne by copyright owners and the duplication of administrative efforts that might result. Numerous international treaties to which Canada is a party (e.g., Berne) prohibit the imposition of any ‘formalities’ that would need to be satisfied for foreign works to benefit from copyright protection in Canada. While limitations on enforcement of copyright linked to registration are not unprecedented, they do not appear to be the norm internationally. In addition, with new pressure on copyright owners to register their works, such an approach would likely result in increased costs in the form of registration fees and associated administrative and legal costs, particularly for owners of copyright in multiple works”
In other words, instituting a registration requirement to access the additional twenty years of copyright protection is a bad idea.
Expect Misinformation About the Costs of Term Extension
That conclusion won’t stop the critics, however, who are already complaining that the one-month consultation period is inadequate. (On the evening of March 11, the day before the consultation period was to close, it was announced that an extension would be granted, with submissions now due by March 31). They will also undoubtedly trot out all the old discredited arguments about how extending the term of protection will cost Canada hundreds of millions of dollars by leading to a massive outflow of royalties from Canada to other countries, ignoring the benefits that Canadian rights-holders will get from qualifying from an additional period of protection in overseas markets that apply the 70 year pma standard reciprocally. The same misinformation was circulated about this time last year prompting me to write a blog post on the topic, (Copyright Term Extension in Canada: Facts versus “Fake News”). However, I fully expect that the same distortion of facts will be recycled again, and I am not the only one to think so.
Possible Accompanying Measures
Clearly the point of the consultation paper is not to re-open the debate on whether term extension should occur or even to focus primarily on a registration requirement. Rather, as the document makes clear, it is to invite comments on options for measures dealing with orphan works and out of commerce works (e.g. out of print books) that could accompany term extension. Neither of these issues is directly related to extension of the copyright term, although there is a connection in that difficulties in accessing copyrighted works that fall into these categories could be increased by virtue of longer terms of legal protection.
More important, tinkering around the edges to increase access to copyright protected works that are often difficult to access is a politically astute move designed to draw some of the sting from critics of term extension, given that the signals emanating from the consultation document indicate the government is unlikely to adopt the INDU committee’s recommendation to impose an additional registration requirement on rights-holders in order to access the extra twenty years of protection. Canada’s term of protection could be simply extended with no accompanying measures, but it seems that the government has decided that increasing access by “LAMs” (Libraries, Archives and Museums) to copyright-protected but difficult to access works will help offset some of the criticisms of a longer term.
Orphan and “Out of Commerce” Works
Orphan works, works where the copyright holder cannot be identified, are an issue regardless of the duration of copyright, particularly when an institution like an archive or library wants to digitize them. There is currently a provision in Canadian copyright law for access to orphan works, through an application to the Copyright Board of Canada. This, however, is a slow and cumbersome process. There is currently no such provision for “out of commerce” works, works that presumably have little current commercial value except for a very limited number of users (like a library) where obtaining additional (digital) copies can be a challenge if a publisher is not interested in licensing further production. The consultation paper puts forward several options for consideration. They include remuneration and exception-based models (five options are presented).
Minimum Standards to Protect Rights-Holders
Whatever model is adopted, it must be carefully constructed so as not to undermine the rights of copyright holders. It should be limited to LAMs in accordance with their public interest mandate and restricted to non-commercial exploitation. (Special attention will need to be paid to educational institutions to ensure they do not use the special access provisions as a means to do an end-run on rights-holders and avoid payment for materials used in course packs, etc. as they have done with the education fair dealing exception introduced in 2012). It must also ensure that a reasonable and documented search has been conducted for the author of an orphan work and should provide a reasonable window after use during which a rights-holder could come forward to claim compensation.
If special access provisions are going to be put in place for “out of commerce” works (as is currently the case in the EU and US), definitions have to be carefully drawn as to what constitutes “out of commerce”, and care taken in the administration of permissions. Collective societies that hold “out of commerce” works in their repertoire could, for example, be engaged to issue licences. But there could be other wrinkles as well. An interesting example has recently arisen with the decision of the publisher of the Dr. Suess works to cease publishing a number of his works because of concerns they contain racial caricatures. These books will soon technically be “out of commerce” although existing copies will continue to be for sale for many years as used books. Would an “out of commerce” provision allow someone to publish a work that the copyright owner had specifically decided not to republish? That question was discussed in a US context in a recent blog (Copyright Lately by Aaron Moss), which examined the issue from a fair use perspective. Copyright certainly gives the author the right to decide whether or not to publish a work they created (e.g. a private letter, such as Meghan Markle’s letter to her father), but does this include control over republishing? One would think so, but this underlines the need for provisions to widen access to “out of commerce” works to be crafted carefully in order to avoid unforeseen outcomes.
Public Comment
Public comment is invited with a closing date of March 12, 2021 (since extended to March 31). Various stakeholder groups, from the LAMs to rights-holder organizations, to others with just a viewpoint to express will be making submissions. These will all be made public after the closing date. The stakeholders are obviously best placed to assess their own interests, and it will be illuminating to see whether opinion will coalesce significantly around any one of the options from a user or rights-holder perspective, or whether it will be dispersed across all five. There will also no doubt be repetition of the arguments both for and against term extension, but the die is cast. Copyright term extension will happen in Canada; the only question is how much tinkering there will be around the edges.
© Hugh Stephens, 2021. All Rights Reserved.
This post has been updated to clarify that both ISED and Heritage work on copyright issues, although the Minister responsible for copyright legislation in the Copyright Act is the ISED Minister. The new closing date for the consultation, March 31, has also been referenced.
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