This post provides a run-through of the report of the Industry, Science and Technology Committee of the Canadian House of Commons, following its review of the Canadian Copyright Act. In total, the committee heard 263 witnesses, and received 192 submissions (and over 6000 e-mails, from both sides of the debate) in a discussion that has had echoes in many other parts of the world. IFLA was among the stakeholders contributing.

While much of the public discussion (at least insofar as this affected copyright debates elsewhere) focused on education, the review also covered a number of other relevant issues for libraries. You can read the full report here, with its 36 recommendations.

Educational Fair Dealing: the report restates the arguments, noting clearly that the decline in certain revenues to the publishing industry are primarily down to changes in technology and uses with which the publishing industry has struggled to keep up. However, it does suggest that overly simple rules on what constitutes fair dealing or not are inappropriate, and that it isn’t clear that all educational institutions have done what they should to tackle excessive copying. The committee also rejects the idea that the exception should only apply to non-commercially available works, given that this would favour blanket licensing as opposed to transactional licensing. It also notes that ‘claiming that parties engage in copyright infringement under an erroneous conception of fair dealing is an argument in favour of copyright enforcement; it does not, on its own, undermine the rationale that led Parliament to add the purpose of education to section 29 of the Act in 2012’. As such, the committee suggests working to improve the licensing relationship between rightholders and educational institutions, and coming back to the question in three years, on the basis of evidence.  

Fair Dealing/Fair Use: the Committee comprehensively sides with those calling for the list of purposes allowed under Fair Dealing to be made illustrative rather than exhaustive. This would allow for a wider range of compatible uses, going in the direction of Fair Use.

Technological Protection Measures and Contract Override: the Committee recommends taking steps to allow circumvention of TPMs which prevent the enjoyment of exceptions. It doesn’t make recommendations clearly about what happens when contract terms take away these possibilities.  

Text and Data Mining: the Committee recommends what appears to be a broad exception, allowing for the text and data mining (informational analysis) of lawfully acquired content, with reference to issues around contract terms and TPMs in the previous notes. There’s reference to the UK provision (which does allow for contract override, but not for removal of TPMs…)

Marrakesh: there’s a short discussion about the availability of works in accessible formats. The Committee recommends monitoring this, with an implication that it could involve works outside of literary ones.

Term: the Committee recommends that if term is extended to life+70, protection beyond 50 years should be conditional on registration. Interestingly, Bryan Adams noted that that extending the term of copyright would “essentially [enrich] large firms of intermediaries, without providing money to creators.” There is also a recommendation to allow for reversion after 25 years, as long as the author has notified about this intention at least 10 years previously, and if the right is used within 5 years of it becoming applicable.

Indigenous Creativity: the report recognises that copyright is often ill-suited to indigenous conceptions of creativity. Moreover, indigenous artists too often lose out from opportunities to earn from their work. The Committee therefore calls for more exploration of how to support indigenous creators, including through a register of indigenous art, giving communities the right to manage traditional arts and cultural expressions, and setting up a dedicated organisation.

Collective Licensing: the Committee recognises the issues with the Copyright Board (which sets tariffs), suggesting a number of steps to make it more efficient (such as collective action by users to agree licences with rightholders). There is a recommendation that the government should look at establishing minimum transparency standards for the benefit of creators who transfer rights to collecting societies. There is also a broad recommendation to do more to promote transparency in collective management in general, in particular as concerns their operation and repertoire.

Private Copying: the Committee kicks the can down the road, recommending looking at other countries in order to understand how this could work, and how royalties could be distributed fairly.

Other Points

The Committee highlighted both the complexity of the law, and the risk that waiting only five years for further review were unhelpful. It recommended efforts to simplify the law, and review on a less regular basis. There was a strong feeling that much of the data presented was dubious: the Committee observed a problematic lack of authoritative and impartial data and analysis on major issues. Multiple witnesses either overestimated how strongly the data they presented supported their arguments or failed to disclose its limitations. Serious and impartial data on the impact of copyright regimes was needed.

Resale Right: the Committee recommends consulting further on this.

Crown Copyright: the Committee recommends using open licences for government works (rather than making them fully public domain)

Artificial Intelligence: the Committee recommends trying to offer clarity between works created by AI alone, and those created by humans with the help of AI software, with the latter potentially being copyrightable.

Snippet Tax: the Committee kicks the can down the road, calling on the Canadian Heritage Committee to look at distribution of revenues in the media sector, including those accruing to platforms.  

Platform Liability: the Committee notes that Copyright alone cannot guarantee that creators are well paid for uses of their works on platforms – competition and contract law have a huge role to play. It suggests that Canada should wait to see what happens elsewhere before changing its own laws here (citing the EU in particular), but does underline that any use of content management systems (filters) should protect both creator and user rights. The Committee doesn’t recommend a shift to notice-and-takedown, but does suggest ensuring that notices are machine-readable.

User Generated Content: the Committee recommends revisions to the (relatively unique) User Generated Content exception to ensure that users are not held liable for inadvertent copyright infringement.

Piracy: the Committee recommends focusing efforts on demonstrably deliberate and major infringers, with the possibility of granting injunctions. It does warn about the risks of net neutrality being harmed when ISPs are also rightholders and can use their position to block content.

Statutory Damages: the Committee recommends maintaining these, but at higher levels to reflect inflation in general. When it comes to non-payment of tariffs to a collecting society, the Committee recommends maintaining statutory damages, but looking again at how these are calculated to make them reasonable, and to avoid them being used as a tool to force users to sign disadvantageous licensing agreements.