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Submission presented to Innovation, Science and Economic Development Canada on implementing an extended general term of coypright protection in Canada
March 30, 2021
Submission of the University of Winnipeg regarding copyright term extension
Part I: Introduction to The University of Winnipeg
The University of Winnipeg ("UWinnipeg") welcomes the opportunity to contribute to this consultation. We are a small to medium-sized university with approximately 10,000 students. UWinnipeg provides academic programs that are both high quality and accessible. Through initiatives such as the Opportunity Fund,Footnote 1 we seek to remove barriers to higher education.
As a post-secondary institution, we play a crucial role in supporting Canada's creative industries. Through instruction and mentorship, UWinnipeg's faculty inspire and develop Canada's next generation of authors and artists. Our faculty and graduate students are prolific creators themselves, having authored thousands of articles in peer-reviewed journalsFootnote 2 in addition to other literary, dramatic, musical and artistic works. We also invest heavily in copyrighted content, spending in excess of $1.5 million each year on library database subscriptions alone.
Part II: General submission regarding copyright term extension
Copyright encourages and rewards creativity while enabling the public to access and incorporate copyrighted works to society's benefit. Maintaining this balance between the rights of copyright owners and users "lies not only in recognizing the creator's rights but in giving due weight to their limited nature."Footnote 3 Term is the primary means through which copyright's limited quality is realized. Its expiration in a given work signals the expansion of the public domain, the shared cultural commons that supports creativity through unbridled access to adapt, translate, expand, re-imagine and otherwise use works in which copyright no longer exists.
We are disappointed that extending the term of copyright is a requirement of Canada's implementation of the Canada-United States-Mexico Agreement ("CUSMA"). Term extension will unjustly postpone the entrance of 20 years' worth of copyrighted works into the public domain. While term extension is rationalized on the basis that a longer period of protection will encourage the creation of new works through increased financial reward to creators, the majority of copyrighted works have no commercial value after an already extensive period of protection of 50 years after the death of the author.Footnote 4 Extending copyright protection by an additional 20 years will thus offer neither economic benefit to most rightsholders nor practical incentive for the creation of new works.
What term extension will achieve, however, is a two decade "freeze" on the entrance of many tens of thousands of works into the public domain, to the detriment of copyright users. This suspension of the public domain will not only diminish a varied and thriving cultural resource of considerable economic valueFootnote 5; it will further hinder the ability of Canada's libraries, archives and museums ("LAMs") to make available their collections of orphan and out-of-commerce works.
Under the current copyright term of life of the author plus 50 years, orphan and out-of-commerce works are already a significant issue for LAMs. Most copyrighted works are not created for commercial purposes and as copyright applies automatically with no need for registration, many copyright owners are unknown and/or unlocatable. In pursuit of their public missions, LAMs maintain massive collections of orphan and out-of-commerce works. While some of these works are published, most are not. Due to legal risk in making available orphan and out-of-commerce without the consent of the copyright holder, these works remain largely unused and invisible to the public. Extending the term of copyright by an additional 20 years only compounds this risk and further discourages LAMs from investing resources to increase access to these works.
It is crucial that term extension be accompanied by significant measures to offset the benefits it extends to copyright owners and thus maintain the balance between the rights of users and owners that is central to the Act. These measures must offer real and lasting support to Canada's LAMs and others that utilize copyrighted works for public interest purposes.
Part III: Specific recommendations regarding options presented in consultation paper
Option #1 contemplates extending the current orphan works regime to include unpublished works and/or published out-of-commerce works. This would expand a rarely-usedFootnote 6 and onerous process and with little added benefit to LAMs. Licenses would remain only applicable to in-Canada exploitation and be subject to expiration. For LAMs to make their orphan and out-of-commerce works available in a cost- and time-efficient manner, mass digitization projects for long-term preservation and public access are often the only practical solution. Given the fees and timelines associated with acquiring Copyright Board-issued licenses, Option #1 offers no practical assistance to these projects, especially as any licenses obtained would be subject to expiration. Additionally, in the context of universities more broadly, the license process contemplated in Option #1 for out-of-commerce works would be available only to LAMs and not other university personnel, such as faculty engaged in teaching, research and public scholarship.
We do not recommend the Government implement Option #1.
Option #2 focuses on the creation of a collective licensing system to facilitate uses of orphan and/or out- of-commerce works by non-profit LAMs. The purpose of copyright tariffs under the "general" tariff regime – such as the reprography tariffs held by Access Copyright – is to protect users from the monopolies held by collective societiesFootnote 7 and set fixed license rates for certain limited uses. This has not, however, deterred collective societies from aggressive attempts to bind colleges, universities and other user groups to tariffs absent of user consent. The lack of transparency regarding the repertories of collective societies has also been of issue. Related to this point, we are also concerned that any license fees collected under a new collective licensing regime would not flow to the appropriate copyright owner, especially in the case of orphan works where, by definition, no owner is locatable. If license fees cannot be dispersed to the appropriate copyright owner, they should be returned to the licensee. As with Option #1, this proposed model would permit in-Canada exploitation only and not be available to university personnel broadly.
We do not recommend the Government implement Option #2.
Option #3 would permit non-profit LAMs to use orphan and/or out-of-commerce works subject to claims for equitable remuneration. Of the options presented, this would provide the greatest support for non-profit LAMs in acquiring and making available orphan and out-of-commerce works. It would do so by:
- Clarifying the clearance process to use orphan and out-of-commerce works;
- Drastically reducing litigation risk for LAMs while avoiding significant legal costs;
- Being applicable "on demand" and to both in-Canada and global use;
- Not burdening LAMs with the time delays and costs associated with obtaining licenses from third parties such as the Copyright Board and collective societies; and
- Being scalable to uses both large and small.
To provide an example of the historically important orphan and out-of-commerce works that could be made available to the public should Option #3 be implemented, the University of Winnipeg Archives maintains a collection of reproductions of over 70,000 images related to the history of Western Canada, gathered over three decades, known as the Western Canada Pictoral Index ("WCPI").Footnote 8 Before being permanently transferred to the University of Winnipeg in 2005, collecting practices for the images varied throughout the development of the WCPI, with the primary source of images being other archives, museums and historical societies. Copyright, however, was not always transferred or licensed by the rightsholders. Accordingly, other than for certain limited uses under fair dealing, the majority of the collection cannot be used for research purposes or made available to the public on the Archives' website. In many cases, these are the only existing copies of the images.
Examples of significant orphan works collections within the WCPI include:
- The Harvey Harding Collection, consisting of 751 images originally taken by Mr. Harding, an amateur actor in Winnipeg, of the production of many plays at the Dominion Theatre and Rainbow Stage in the 1950s and 1960s. We have been unable to determine whether Mr. Harding is alive or deceased, and attempts to locate his family have also been unsuccessful.
- The South Indian Lake Collection, consisting of 203 images of individuals and events taken in and around South Indian Lake, Manitoba, a northern community within the O-Pipon-Na-Piwin Cree Nation, in the 1960s. The WCPI attributed the images to a former teacher, Cheryl Hebert. Attempts to locate Ms. Hebert have been unsuccessful and current members of the O-Pipon-Na- Piwin Cree nation do not remember her. The original images have been lost and the WCPI reproductions are the only remaining photos taken prior to the community's relocation as a result of planned flooding in conjunction with the expansion of Manitoba Hydro in the 1970s.
- The Miscellaneous Collection, consisting of 3,750 images of unknown provenance. The images in this collection vary widely in their subject content and feature multiple creators, as well as a broad range of dates. Many of these images are likely to be in the public domain but as several are dated post-1949 without any information regarding creators, we cannot determine whether copyright remains in effect.
As noted earlier in this submission, for an archives to make orphan works available in an efficient manner, mass digitization for long-term display and preservation is the only practical option. Due to uncertain copyright status, however, this cannot be done with the WCPI. Maintaining these unique pictoral records of Manitoba's heritage is already costly for the Archives, which operates on a non-profit basis. Acquiring Copyright Board-issued licenses or paying a tariff rate to a collective society in order to make these images available to researchers and the general public is simply not feasible. Option #3, however, would permit the Archives to safely digitize and make available these collections without the significant legal liability that presently exists. If rightsholders were to eventually surface, this Option also protects their interests and offers remuneration.
UWinnipeg strongly recommends the Government implement Option #3.
Option #4 contemplates the creation of an exception permitting non-profit LAMs to use copyrighted works during the additional 20 years of protection in order to achieve their public interest goals. As regards out-of-commerce works, this would offer LAMs many of the same benefits afforded under the preceding option. It would not, however, assist with the problem of orphan works. Through its equitable remuneration scheme, Option #3 also provides greater security for LAMs against litigation from rightsholders who re-enter a work into commercial exploitation and seek retroactive payment from LAMs for past uses. As we address later in this submission, maintaining limited liability for non- commercial uses should be an essential element of term extension.
We recommend the Government implement Option #4 only if Option #3 is not chosen.
Option #5 would permit non-profit LAMs to use a work 100 years after its creation in accordance their public interest missions. Similar to Option #4, this final option would offer tangible advantages to LAMs in respect of out-of-commerce works. These include clarity and protection against litigation from rightsholders, as well as application to unpublished Crown copyright material. Option #5, however, would offer little utility in dealing with issues of orphan works, where dates of creation may be unknown. Option #3 remains the best solution for LAMs.
We recommend the Government implement Option #5 only if Options #3 or #4 are not chosen.
Part IV: Additional accompanying measures to preserve copyright balance
Extend any option beyond non-profit LAMs to include employees of educational institutions
University centres, research teams and individual faculty members across many disciplines use orphan and out-of-commerce works for education, research and scholarship. Provided these uses are non-commercial and for public interest purposes, copyright owners would suffer no measurable harm from an extension of the proposed options to employees of educational institutions.
Carefully define "commercial use" and "out-of-commerce"
Part (b) of the definition of "commercially available" in section 2 of the Act holds that a work is commercially available if a license to reproduce it is available from a collective society. Not only does the opportunity to purchase a reproduction-only license not equate to commercial availability in the customary sense, the rights held by collective societies, such as those assigned to Access Copyright, often do not permit the full reproduction of a work but instead only a short excerpt thereof. To the extent it would apply to any amendment to the orphan and out-of- commerce works regime, part (b) of section 2 should be deleted.
Additionally, even when a license to use a work in full is available, it may be for personal use only and thus be non-applicable to universities. As the work is nevertheless commercially available within the definition provided in the Act, universities and their LAMs are prevented from utilizing certain available educational exceptions. An example is the exception for display contained in subsection 29.4(1), which requires that a work not be commercially available. The COVID-19 pandemic has highlighted this issue with many works being unavailable for purchase (e.g., no copies or library licenses are available on the Canadian market) yet also unusable under an educational exception.
As regards out-of-commerce works, publishers may keep digital works in print long after commercial appeal has ceased by offering copies for a nominal fee, even $0.01.Footnote 9 Such copies, however, may still be sold for personal use only. Universities and their LAMs would therefore be excluded from using these works for the full term of life of the author plus 70 years.
As we expand on in our next point, amending the definition of "commercially available" as regards published works towards an objective standard (e.g., one based on sales) in support of rights reversion would help prevent such "embargoes" and provide support for authors.
Support for rights reversion
Universities are home to many creators who are unlikely to benefit from term extension, as the academic publishing market is dominated by a handful of international publishers. On the contrary, copyright extension will harm these creators through delayed access to new public domain materials. As noted in the INDU committee's report in fulfillment of the statutory review of the ActFootnote 10 and a recent report commissioned for Canadian HeritageFootnote 11, rights reversion is one option to mitigate the harms of term extension. By returning rights to authors once a work is no longer commercially exploited based on an objective sales standard (measured in units or dollar value), rights reversion helps creators and provides them with the ability to reassign their rights, if they so choose, in favour of public licenses. It would also assist in preventing against the "embargoes" referenced in our previous point. Rights reversion could be achieved by amending subsection 14(1) of the Act to apply 25 years after assignment. We note a recent EU directive also recommended rights reversion, both as a standard for contracts, and as a legislative requirement when works are out of commerce.Footnote 12
Maintain limited liability for non-commercial uses
The Act caps non-commercial infringement at $5,000, in order to protect copyright users against disproportionate penalties for infringements that cause no measureable harm to copyright owners. Copyright trolls, however, nevertheless pursue university users seeking large sums for non-commercial, often inadvertent uses of work, such as the inclusion of a copyrighted image on a university webpage promoting a research initiative. Even if such claims never make it to the courts, universities may expend considerable resources to defend their actions.
It is essential that term extension not provide additional opportunity for abusive trolling by ensuring liability for the use of works now granted an additional 20 years of protection is not retroactive. Limiting the liability for the use of orphan and out-of-commerce works, as contemplated in option #3, for example, would also assist in protecting universities from abusive demands by copyright owners or their assignees.
Expand fair dealing as recommended in the Copyright Act review
As noted earlier in this submission, fair dealing is typically the only option available to LAMs to utilize their orphan and out-of-commerce works. However, fair dealing only applies to a limited set of uses, which do not provide LAMs the ability to fully make their collections available without incurring legal risk. In its review of the Copyright Act, the INDU committee recommended the Government of Canada introduce legislation amending section 29 of the Act to make the list of fair dealing purposes illustrative rather than prescriptive.Footnote 13 Such an amendment would assist greatly in realigning the balance between the rights of copyright users and owners. As Canada's implementation of CUSMA brings it into greater alignment with the United States – which has a 70-year term of protection but a more permissible "fair use" exception with illustrative, rather than exhaustive, purposes – expanding fair dealing has never been timelier.
Part V: Summary of recommendations
- Implement Option #3
- Extend any option chosen to include employees of educational institutions
- Carefully define "commercial use" and "out-of-commerce"
- Support rights reversion
- Maintain limited liability for non-commercial use
- Expand fair dealing
Dr. James Currie
Interim President and Vice-Chancellor The University of Winnipeg