Access Copyright

Access Copyright's submission to the consultation on how to implement an extended general term of copyright protection in Canada

Submitted: March 28, 2021

Introduction and overview

Access Copyright urges the government to implement term extension immediately without accompanying measures. The issues surrounding the appropriate structure of Orphan Works ("OW") and Out-of- Commerce Works ("OOCW") regimes are complex, have not been adequately studied, and do not require action as part of Canada's obligation to extend the general term of copyright protection in accordance with the Canada-United States Mexico Agreement ("CUSMA"). OW and OOCW regimes are not structurally related or otherwise integral to the amendment required to implement term extension for twenty years and delaying implementation of that agreed extension unfairly deprives creators and publishers of its benefits in Canada and internationally.

The need for a Canadian OOCW regime or an updated OW regime was not identified in the recommendations by either the Standing Committee on Industry, Science and Technology ("INDU") or the Standing Committee on Canadian Heritage ("Heritage") in their 2019 reports related to the Statutory Review of the Copyright Act.^{Footnote 1} It is unclear why consultation on implementing these regimes is a priority when the reports identified numerous pressing issues that are undermining an effective copyright system in Canada. The need for new or revised Canadian OOCW and OW regimes has not been studied and the appropriate structure and implementation of such regimes cannot be determined without sufficient analysis, consultation, and stakeholder dialogue. Access Copyright urges the government to prioritize the implementation of recommendations identified in the INDU and Heritage reports and to leave the issues of OW and OOCW regimes to future study with appropriate timelines and stakeholder consultation to adequately assess these complex issues.

Current orphan works regime

As indicated in the consultation paper, the current Canadian OW regime is administered by the Copyright Board of Canada pursuant to section 77 of the Copyright Act. When the Copyright Board receives requests for the use of published works of the kind administered by Access Copyright with presumed unlocatable copyright owners, it refers the applications to Access Copyright to help efficiently administer the issuance of licences for the use of these works.^{Footnote 2} In particular, Access Copyright's information specialists are responsible for conducting additional research to verify if the copyright owner is, in fact, unlocatable.

Based on Access Copyright's experience assisting the Copyright Board, the actual demand for the use of OW appears low. Over the last five years, Access Copyright has received a total of nine requests regarding OW from the Copyright Board (generally one to three requests per year). Of the nine requests, a diligent search by Access Copyright's information specialists confirmed that only three were, in fact, OW. This suggests that the actual number of OW may in fact be much smaller than users believe. Although it is difficult to ascertain why the current OW regime is so rarely used, we expect that the demand will not likely increase dramatically with the extension of the term of copyright.

Before seeking commentary on possible new models for OW, the government should undertake an analysis of the actual need for a new regime and evaluate the effectiveness of the current regime administered by the Copyright Board.

Considerations for effective out-of-commerce works and orphan works regimes

For the reasons outlined above, we are of the view that discussion of proposed models contemplated in the consultation paper are not structurally related or otherwise integral to the amendment to implement term extension and the government should proceed with extending the general term of copyright protection without any accompanying measures. After the government has acted on recommendations outlined in the INDU and Heritage reports that are necessary to ensure a functioning Canadian copyright system for published works, it may be worthwhile to initiate a comprehensive study on the need and potential models for OOCW and OW regimes.

As noted in the consultation paper, several international jurisdictions have or are in the process of implementing OOCW and OW regimes. The EU Directive on copyright and related rights in the Digital Single Market^{Footnote 3} ("DSM Directive") includes detailed rules for the implementation of OOCW regimes, which the Member States are in the process of transposing into law. The European Commission is also undertaking a review of the current EU OW regime.^{Footnote 4} Access Copyright recommends that the government study these developments as they unfold before implementing a Canadian model.

The International Federation of Reproduction Rights Organizations ("IFRRO"), of which Access Copyright and Copibec are members, has been actively engaged in the rollout of the DSM Directive related to the digitization of OOCW. It has recently published a comprehensive guide^{Footnote 5} ("IFRRO Guide") on the licensing of the digitization and making available of out-of-commerce works for the text and image-based sectors pursuant to the DSM Directive. The IFRRO Guide outlines the complex considerations that must be evaluated and addressed in implementing an OOCW regime. It also includes case studies of OOCW initiatives that have been successfully implemented in France, Germany, Czech Republic, and Norway.

To help inform a future study of potential models for Canadian OW and OOCW regimes, Access Copyright recommends that the principles outlined below (informed by the IFRRO Guide) be considered in the government's analysis:

1. Any OOCW/OW regime must be carefully designed with effective safeguards to ensure it does not negatively impact current and future markets for rightsholders.
2. Guided by the DSM Directive, the most effective way to balance legal access to OW and OOCW while safeguarding against potential impacts on current and future markets for these works is to establish a remunerated regime, supported by a licensing scheme. The most efficient and fair system would be collective licensing with extended effect. The IFRRO Guide provides detailed descriptions of the models of extended collective licensing and legal presumption of representation used in OOCW regimes in the EU.^{Footnote 6}
3. Customary channels of commerce must be comprehensively defined.^{Footnote 7} Rightsholders, Collective Management Organizations and Library, Archives and Museums (LAMs) should all be consulted in the process of defining when a work is out-of-commerce.
4. Territorial scope must be considered and defined.
5. The definitions of OW and OOCW must be carefully formulated to take into account new and emerging business models for authorship and publishing. For example, works published via the growing trend of anonymous self-publishing could be improperly captured by a definition of OW.^{Footnote 8}
6. An OOCW/OW regime should incorporate centralized infrastructure to ensure there is an effective opt out and publicity mechanism. The EU is creating the EUIPO OOCW portal for this purpose.
7. Modeled on the DSM Directive, the regime should only apply to LAMs for works in their permanent collections.
8. The government should ensure that a Canadian OW and OOCW regime is designed to be in compliance with international treaty obligations.
9. There is considerable overlap between OW and OOCW. The government should study the efficiency and value of implementing one comprehensive regime, as was done in Norway.
10. The onus should not be placed on the rightsholder to determine if their works have been digitized. Rightsholders currently have significant enforcement challenges and this would add additional administrative and enforcement burdens. The responsibility should lie with the user making use of the work. As indicated above, a well-designed regime supported by collective licensing with extended effect would reduce the burden on both users and rightsholders.
11. It is important to note that OOCW and OW regimes will disproportionally affect rightsholders of text-based and visual works. These rightsholders must be consulted and be active partners in implementing any OOCW and OW regime to ensure that current and future markets for these works are not undermined. The importance of stakeholder dialogue is a cornerstone of the DSM Directive on OOCW:

    In order to ensure that the licensing mechanisms established by this Directive for out-of-commerce works or other subject matter are relevant and function properly, that rightholders are adequately protected, that licences are properly publicised and that legal certainty is provided with regard to the representativeness of collective management organisations and the categorisation of works, Member States should foster sector-specific stakeholder dialogue.^{Footnote 9}

Conclusion

Access Copyright urges the government to proceed with implementing term extension without accompanying measures. The issues surrounding OOCW and OW are complex and have the potential to seriously undermine current and future markets for copyright protected works if not carefully designed with appropriate safeguards and licensing mechanisms. An OOCW and OW regime should not be implemented without sufficient study and stakeholder dialogue and certainly not as a trade-off to appease unsupported claims of the negative impacts of term extension. The government should instead prioritize amending the Copyright Act to ensure fair compensation to rightsholders in response to certain recommendations in the INDU and Heritage reports and as recommended in the February 2021 Report of the Standing Committee on Finance.^{Footnote 10}

Extending the term of copyright will bring Canada in line with international norms, increase opportunities for commercialization and export, and support investment in the creation of Canadian content. Despite these many benefits, the government should not lose sight that these benefits will be greatly undermined if creators and publishers continue to lack adequate remedies to enforce their rights and do not receive fair remuneration for the use of their works, particularly in a key sector – education. An additional 20 years of protection may prove to be of little value to rightsholders, at least for the use of their works in Canada, if they continue to suffer substantial and proven harm^{Footnote 11} under a broken copyright regime.

Government action is needed and long overdue to restore fair compensation to creators and publishers for the use of their works by the education sector. Consistent with recommendations 18, 20 and 21 of the Shifting Paradigms report, Access Copyright reiterates the recommendations included in its submissions to the Heritage Committee's Study on Remuneration Models for Artists and Creative Industries:^{Footnote 12}

1. Fair dealing for education must only apply to educational institutions where a work is not commercially available under licence by the owner or a collective.
2. Tariffs must be enforceable.
3. Statutory damages must be available to all collectives.

Access Copyright urges the government to implement the required term extension without delay and without other measures and to act swiftly on the writing and publishing industry's recommended priorities for revisions to the Copyright Act.