Athabasca University

Focused on the future of learning.

Office of the Provost and Vice President Academic
Via email
March 18, 2021

Jennifer Miller Director General,
Marketplace Framework Policy Branch
Innovation, Science and Economic Development Canada

Owen Ripley Director General,
Broadcasting, Copyright and Creative Marketplace Branch Canadian Heritage

Email: copyright-consultation-droitdauteur@canada.ca

Re: Athabasca University - Submission on How to Implement an Extended General Term of Copyright Protection in Canada

Thank you for inviting Athabasca University ("AU") to share its views on the implementation of an extended general term of copyright protection in Canada.

As Canada's Open University AU's mission is to remove barriers that restrict access to and success in university- level study and to increasing equality of educational opportunity for adult learners worldwide.

The importance of user rights

Pursuant to its mission, AU has consistently taken an approach to copyright that supports user rights as required conditions for shared cultural value creation (including, but not limited to, the educational purposes central to AU's mandate). To AU, user rights are not simply factors to be balanced against owner rights when attempting to delineate otherwise monopolistic control of content subject to copyright protection. Instead, AU views user rights themselves as representative of the public interest in all discussions of copyright protection: the ameliorative purposes served by clear and robust user rights cannot be denied and should not be minimized.

AU's submissions

First position and importance of mitigating measures

As its first position, AU does not support an extended general term of copyright protection in Canada whatsoever. AU's view is that the current general term of copyright protection in Canada more than adequately protects the interests of copyright holders while acknowledging the valid interests of copyright users. However, AU acknowledges that Canada has signalled its commitment at the international diplomatic level to align with other nation states' extended general term of copyright protection ('life of the author plus seventy years', increased from the temporal period of fifty years). As Canada proceeds to translate its international commitments into domestic law, AU strongly asserts that lawmakers should enact accompanying measures to mitigate the implications attendant on an extension of the general term of copyright protection.

The importance of fair dealing

Further, AU cannot overemphasize the need to achieve, and the importance of achieving, clarity in Canada with respect to the legal indicia of fair dealing as a user right. To be clear, many of the implications attendant on an extension of the general term of copyright protection could be dispensed with by achieving a clear and robust fair dealing context in which copyright users could pursue recognized fair dealing purposes without making contact with copyright infringement boundary lines.

AU asserts that the current consultation process^{Footnote 1} must take into account how a clear and robust fair dealing context could itself function as a measure to address the implications attendant on an extension of the general term of copyright protection.

Educational institutions as a class of copyright user

As with all post-secondary educational institutions in Canada, AU's public mandate requires operation of library, archival and pedagogical resource centres to support academic research and the dissemination of knowledge.

AU's administration of its resources has been (and shall continue to be) conducted in accordance with principles of good stewardship. It is exceptionally important to AU to limit any and all operational 'overhead', including expenditures of time and financial resources, which represent low 'return on investment' for its various stakeholders.

As a first step towards reducing operational 'overhead', AU strongly advocates for recognition of educational institutions as a unique class of copyright users without emphasis on the institutions' constituent operations.

At present, the consultation identifies not-for-profit libraries, archives and museums ("LAMs") as copyright users whose needs are being considered and viewpoints are being sought. While AU does not wish to diminish in any way the importance of LAM needs and viewpoints, AU asserts that the consultation, by omitting to recognize the unique class of educational institutions as copyright users, has unduly limited the required breadth of consultation.

Educational institutions, as centres of cultural and economic production, require legal certainty when pursuing their public mandates. In the context of the policy and legal changes brought to bear by an extended general term of copyright protection in Canada, educational institutions should be formally included alongside of LAMs as affected copyright users. To be clear, educational institutions themselves require safeguarding through mitigating measures so as to avoid undue interference with the performance of public mandates.

Mitigating measures: A matrix of protection

AU maintains that a well-constructed copyright registration system that places onus on the copyright owner to positively claim its rights during the extended general term of copyright protection in Canada would be the most effective mitigating measure.

In the event that a registration system is not adopted, AU asserts that the effectiveness of any and all mitigating measures during an extended general term of copyright protection depends on clear operational definitions.

For instance, the term 'out-of-commerce' appears to be a seminal concept within the consultation process. However, it does not appear that the term 'out-of-commerce' has been developed into a concept with sharp legal definition.

AU's position is that the mitigating measures proposed in the consultation paper could not be actualized by copyright users without a sharp legal definition of 'out-of-commerce'.

Further, given that there may be additional mitigating measures proposed by consultation participants for public consideration, it seems improbable that the consultation will yield consensus on a clear path forward without sharp legal definition of the term 'out of commerce'.

The same assertion can be made about the term 'commercial use', which is also a fraught term within the debate on the limits of fair dealing.

AU strongly advocates for the consultation process to include public consideration of these seminal concepts so that copyright law reform can achieve progress on many fronts.

AU has identified Option 3 within the consultation paper as the mitigating measure that best aligns with AU's operational mandate and principles of good stewardship. The indicia of Option 3 appear to achieve a reasonable balance between the inherent user rights position of AU with a copyright owner's ability to be equitably remunerated upon a claim during the extended period of copyright protection.

Importantly, Option 3 appears to shift onus onto the copyright owner to exercise its rights during the extended period of copyright protection (rather than applying a default and nondescript onus onto a copyright user to seek out a copyright owner and/or to identify the precise nature of the latter's claims).

It is necessary to maintain sharp focus on the not-for-profit model under which publicly-funded post-secondary educational institutions in Canada operate (with diminishing budgetary resources). These bodies do not exist within the band of commercial/for profit exploitation activity with which the extended general period of copyright protection is designed to intersect.

In the result, AU strongly advocates for due recognition that monetary obligations that may attach to duly enforced copyright during the extended general term of protection should be limited for all not-for-profit copyright users.

AU views Option 5 within the consultation paper (the 'exception' for use of works 100 years following their creation) as a tacit recognition that the monetary obligations that may otherwise attach to duly enforced copyright during the extended general term of protection should not be given priority over copyright users' legitimate purposes.

However, AU does not view Option 5 as creating a sufficient exception to monetary obligations. The thrust of Option 5 (i.e. the apparent balancing of private rights and public rights) should be applied to all of the current and future proposed mitigation measures.

Conclusion

Canada should seek out reasonably proportionate measures to mitigate the consequences of extended copyright protection on particular copyright users.

Part of those proportionate measures should be to classify copyright user groups using broad and purposeful definitional language. A related proportionate measure should be to clearly define operational terms including 'out-of-commerce', 'delay', 'reasonable search' and 'recordkeeping' for those particular copyright users who are not currently positioned (nor ever will be positioned) as commercial/for profit actors.

Finally, in the event that copyright owner claims during the extended general term of copyright protection are both well-founded and not limited by application of clear and robust measures to mitigate their financial implications, particular copyright users, like AU, should not be exposed to punitive damages in any event. The extended general term of copyright protection should not be actualized as an enlargement of owner rights. At best, the maintenance of reasonable owner rights during the extended period should be the ultimate objective.

We look forward to reviewing the results of the consultation process.

Please ensure that AU is included in all stakeholder communications going forward without exception. Sincerely,

Matt

Dr. Matthew Prineas
Provost and Vice President Academic Athabasca University