British Columbia library association

British Columbia library association submission to the government of Canada consultation on how to implement an extended general term of copyright protection in Canada

March 22nd, 2021

To Whom it may Concern,

Thank you for the opportunity to respond to the options and issues identified in A Consultation on How to Implement an Extended General Term of Copyright Protection in Canada released in February by Innovation, Science and Economic Development Canada.

The British Columbia Library Association (BCLA) leads and supports the BC library community in advocacy, professional development, and on issues concerning intellectual freedom. The Association works to ensure that all British Columbians have equitable access to information, ideas and works of the imagination. BCLA builds partnerships and relationships with libraries, with all levels of government and with provincial and national organizations that share similar goals and values. BCLA advances the values of the association and promotes a widespread understanding of the benefits of library and information services.

One of the recommendations of BCLA in our November 2018 submission to the INDU Standing Committee on the Statutory Review of the Copyright Act^{Footnote 1} was for the Government of Canada to ensure that the public interest was protected when the general term of copyright was extended due to the Canada-United States-Mexico Agreement (CUSMA). This submission provides BCLA's recommendations on how the required extension of the general term of copyright to life of the author plus 70 years may best be implemented by enacting measures to offset the diminishment of the public domain arising from term extension.

Background

The two most significant issues for libraries regarding the 20-year copyright term extension are:

1. the diminishment of the public domain due to a 20-year freeze on most works entering the public domain and;
2. the exacerbation of the already existing problem of use and access to orphan works and out-of-commerce works.

A large and healthy public domain of works enriches the social, intellectual, and cultural lives of Canadians. Works entering the public domain gain new life as many of them have not been commercially available for decades^{Footnote 2}. Upon entering the public domain they are again available to be enjoyed and can be repurposed, translated, adapted and used in a variety of new projects.

Very few works retain commercial viability for their full length of copyright protection^{Footnote 3} and become out-of-commerce works for the majority of the time they are protected by copyright. Additionally, many works become orphan works as organizations and publishers disappear, creators cannot be found, and transfers of rights are lost^{Footnote 4}. These works are still valued by libraries and the public yet are difficult to make available due to difficulty accessing and gaining permission to use the works.

BCLA responses to the options in the consultation paper

Option 1 and option 2

Option 1 proposes modifying the Copyright Board of Canada's Unlocatable Owners' regime to include unpublished works and out-of-commerce works. Option 2 proposes the creation of new collective societies to administer a Copyright Board approved tariff for the reproduction of orphan works and out-of-commerce works. Both options are unpalatable to libraries for several reasons, including:

• the national nature of licences which limits digital access and distribution to Canada only;
• unnecessary administrative costs and burdens as the Copyright Board is already unable to respond in a timely fashion with its current workload.
• equity issues of paying royalties and fees for the use of orphan works when obviously no rightsholder can receive the payment. Royalties would need to be held and returned to the licencee if no rightsholder comes forward^{Footnote 5}, or otherwise become donations to collective societies^{Footnote 6};
• collective licensing for out-of-commerce works rewards rightsholders who intentionally remove their works from the marketplace. It is not the goal of Canada's copyright regime to protect the economic interests of a rightsholder who has deemed a work to be of no commercial value and thus refuses to further disseminate the work.
• collective licensing in all forms favours large organizations over smaller libraries and individual users due to the costs of blanket licences and their administrative requirements.

Option 1 and Option 2 create more problems than they solve. The Copyright Board is already overburdened and appears unable to take on any new responsibilities.

Collective societies can already issue licences for out-of-commerce works thus making superfluous the need for new collective societies for this purpose. Finally, extending collective licensing to orphan works violates the principled requirement that royalties only be paid when the rights holder exists to be remunerated. Consequently, BCLA is not in favour of Option 1 or Option 2.

Option 3

Option 3 would allow for the use of orphan works and out-of-commerce works by LAMs subject to claims for equitable remuneration. As already mentioned, orphan works and out-of-commerce works have cultural and educational value yet frequently remain inaccessible to the wider public due to the inability to copy them under existing provisions in the Copyright Act. Option 3 is favoured by BCLA as it is a reasonable way to mitigate some of the harms resulting from term extension while also allowing libraries to fulfill their public interest mission without negatively impacting rightsholders. Option 3 proposes that institutional users carry out good faith, reasonable searches for a work to determine if the copyright owner can be located (orphan works) or to determine if the work is still being exploited commercially by the rightsholder (out-of- commerce works). For libraries to benefit from this approach the parameters and record keeping obligations should be determined by best practices in the LAM sector. As well, out-of-commerce must be defined to mean that the work is no longer made available by the rightsholder through regular commercial channels such as bookstores. The ability to obtain a licence from a collective society to reproduce the work cannot be part of what qualifies a work as still being in-commerce.

To properly function a provision for the use of orphan and out-of-commerce works needs a zero-liability system. Such a system could be modelled after the Australian proposals^{Footnote 7} recommended in the Consultation Paper where a rightsholder cannot claim any damages for infringement for the copying of a work prior to their coming forward and identifying themselves. Finally, the suggestion for institutions to make a public notice that they are using works under an orphan works and out-of-commerce provision would also aid in keeping rights holders aware of use of their works and facilitate fruitful discussions between rightsholders and users regarding any remuneration for the copying of the work going forward.

Option 4

Option 4 suggests allowing LAMs to copy works in the last 20 years of protection in a life plus 70 system when such copyright fulfills aims related to the public interest mission of LAMs. This option comes with record keeping obligations that are absent from the US provision the Consultation Paper uses as reference point^{Footnote 8}. Option 4, although it provides limited mitigation of term extension, is not nearly as beneficial to libraries and their patrons as is Option 3.

Option 5

Option 5 would allow for the use by LAMs of works 100 years after creation, provided they undertake reasonable searches regarding commercial exploitation of the work and related record keeping. The adoption of Option 5 as a new exception in the Copyright Act would apply to all works regardless of publication status or format. As such it would be of benefit to libraries in the ongoing mission to make local and national heritage available to future generations and work well in tandem with Option 3.

Recommendations regarding options in the consultation paper

• Option 3 from the Consultation Paper should be adopted. A provision allowing LAMs to use orphan and out-of-commerce works in fulfillment of their public interest mission without negatively impacting rightsholders. Such a provision requires: a zero-liability system; a definition of out-of-commerce that ensures that the availability of a licence from a collective society is not relevant to a work's in-commerce or out-of-commerce status; and that record keeping and good faith search processes be determined from LAM sector best practices.
• Option 5 from the Consultation Paper should be adopted as it would work well in tandem with Option 3 described above.

Other issues for consideration

The Consultation Paper welcomed additional ideas and comments on the implementation of a life of the author plus 70 years general term of copyright protection. Therefore, BCLA offers the following ideas for consideration.

Rights reversion for authors

Libraries have always provided services to authors of creative works. Multiple studies have shown that longer copyright terms result in more works being shifted to out-of- commerce status by the rightsholder while still of value to the public and capable of generating revenue for the creator^{Footnote 9}. Standard contracts with creators do not always have a reversion right. Providing a legislative tool that allows creators to reclaim their copyright after a period of years can greatly benefit creators since they could renegotiate contracts or re-exploit their old works. The reversion right would also benefit the public by allowing them renewed access when formerly languishing works are given new life by their creator^{Footnote 10} and when a creator decides to contribute their works to the public domain prior to copyright expiration. Furthermore, in a report on reversion rights commissioned by Heritage Canada, Paul Heald found that a reversion right would be in the public interest^{Footnote 11}. A contractual rights reversion provision in the Copyright Act would allow a direct economic benefit to creators, benefit the public, and would also align Canada with the USA^{Footnote 12} and with EU proposals^{Footnote 13}. Authors and performers should be able to exercise this right 25 years after the initial transfer of their rights and this right must be unwaivable.

Legislative instrument

BCLA supports a stand-alone bill to amend the Copyright Act with its scope limited to the necessary amendments required to implement CUSMA and to mitigate the harms arising from term extension. BCLA would not support the amendment of the Act under an Omnibus Bill, as it limits debate and further refinement of the legislation.

Recommendations regarding other issues for consideration

• A provision should be added to the Copyright Act to allow for creators to regain their exclusive copyright in works 25 years after they had transferred those rights. This provision should not be allowed to be waived by the creator.
• The required amendments to extend to the general term of copyright protection and to introduce new provisions to mitigate the harms of term extension should be in a stand- alone bill.

Thank you for your consideration on this matter.

Sincerely,

Christine Middlemass
President
BC Library Association