Federal Report Pushes For Changes To Canada's Copyright Act

By David Farrell

On Monday, the Standing Committee on Industry, Science and Technology presented its Sixteenth Report in the House of Commons, on the Statutory Review of the Copyright Act. This concludes the review of the Copyright Act undertaken by that Committee and the Standing Committee on Canadian Heritage.

The Copyright Act is nearly 100 years old. Amendments passed in 2012 included a new compulsory requirement that the Act is reviewed every five years.

There are 10 voting members of Parliament, from all three major political parties, who sit on the industry committee.

The committee’s opinion comes after an exhaustive two-year process that included 263 witnesses, 192 briefs, 52 meetings, and 6,000 emails and other correspondence offering diverse viewpoints on what is needed to update current legislation.

Recommendations to narrow the radio royalty exemption, review safe harbour provisions, extend the term of copyright for musical works, and review the private copying regime are included.

These recommendations, together with the recommendations made in the report from the Heritage Committee on artist and creative sector remuneration, provide a blueprint for progressive legislative that can even economic distortions that have benefited big business in many cases as the creative class has seemingly been penalized with a los of control and compensation for their works.

“It is unfortunate that the Industry Committee chose not to take into account the May 15^th report from the Heritage Committee or the testimony from creators that contributed to the Heritage Report,” says Music Canada President and CEO Graham Henderson. “If they had, they would have found the Heritage Committee’s Shifting Paradigms report provides clear answers to their outstanding questions.”

“We look forward to working with the Government to reform the Copyright Act as soon as possible to ensure the framework allows creators to be fairly remunerated for their work when it’s commercialized by others.”

The massive document includes 36 recommendations, including removing the requirement to conduct a review of the Act every five years.

List of Recommendations

Recommendation 1

That the Government of Canada introduces legislation to repeal section 92 of the Copyright Act in order to remove the requirement to conduct a five-year review of this Act.

Recommendation 2

That the Government of Canada simplifies the wording and the structure of the Copyright Act.

Recommendation 3

That the Government of Canada establishes a Research Chair on Remuneration and Business Models for Creators and Creative Industries in the Digital Economy as well as a Research Chair on the Economics of Copyright.

Recommendation 4

That the Government of Canada mandate Statistics Canada to develop consistent indicators and authoritative data on the economic impacts of copyright legislation in Canada, notably to determine its effects on the remuneration of Canadian creators and the revenues of Canadian creative industries.

Recommendation 5

That the Government of Canada consults with Indigenous groups, experts, and other stakeholders on the protection of traditional arts and cultural expressions in the context of Reconciliation, and that this consultation address the following matters, among others:

• The recognition and effective protection of traditional arts and cultural expressions in Canadian law, within and beyond copyright legislation;

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• The participation of Indigenous groups in the development of national and international intellectual property law;

• The development of institutional, regulatory, and technological means to protect traditional arts and cultural expressions, including but not limited to:

  • Creating an Indigenous Art Registry;

  • Establishing an organization dedicated to protecting and advocating for the interests of Indigenous creators; and

  • Granting Indigenous peoples the authority to manage traditional arts and cultural expressions, notably through the insertion of a non-derogation clause in the Copyright Act.

Recommendation 6

That if the term of copyright is extended, the Government of Canada consider amending the Copyright Act to ensure that copyright in a work cannot be enforced beyond the current term unless the alleged infringement occurred after the registration of the work.

Recommendation 7

That the Government of Canada introduce legislation amending the Copyright Act to provide that a reversion of copyright under section 14(1) of the Act cannot take effect earlier than 10 years following the registration of a notification to exercise the reversion.

Recommendation 8

That the Government of Canada introduced legislation amending the Copyright Act to provide creators a non-assignable right to terminate any transfer of an exclusive right no earlier than 25 years after the execution of the transfer, and that this termination right extinguishes itself five years after it becomes available, take effect only five years after the creator notifies their intent to exercise the right, and that the notice be subject to registration.

Recommendation 9

That the Government of Canada consults with provincial and territorial governments, Indigenous groups, and other stakeholders to explore the costs and benefits of implementing a national artist’s resale right, and report on the matter to the House of Commons Standing Committee on Industry, Science and Technology within three years.

Recommendation 10

That the Government of Canada considers amending the Copyright Act to remove the words “created after June 7, 1988,” from section 3(1)(g) of this Act, with no retroactive effect and providing stakeholders with a significant transitional period.

Recommendation 11

That the Government of Canada improves Crown copyright management policies and practices by adopting open licences in line with the open government and data governance agenda, concerning any work prepared and published:

• By or under the direction or control of a Canadian government; and

• In the public interest and for the purpose of public use, education, research, or information.

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That the Government of Canada introduces legislation amending the Copyright Act to provide that no Canadian government or person authorized by a Canadian government infringe copyright when committing an act, either:

• Under statutory authority; or

• For the purposes of national security, public safety, or public health.

In the context of Crown copyright and acts done under statutory authority or for the purpose of national security, public safety, or public health, that the Government of Canada consider implementing measures to compensate rights-holders for acts done by a Canadian government or a person authorized by a Canadian government that would otherwise infringe copyright, when appropriate.

That the Crown exercises copyright protections that are reasonably in the public interest.

Recommendation 12

That the Government of Canada maintains the definition of “sound recording” under section 2 of the Copyright Act.

Recommendation 13

That the Government of Canada updates the rules governing first ownership of cinematographic works in light of the digital age and in consideration of maintaining competitiveness in a global market.

Recommendation 14

That the Government of Canada considers amending the Copyright Act or introducing other legislation to provide clarity around the ownership of a computer-generated work.

Recommendation 15

That the House of Commons Standing Committee on Canadian Heritage considers conducting a study to investigate the remuneration of journalists, the revenues of news publishers, the licences granted to online service providers and copyright infringement on their platforms, the availability and use of online services, and competition and innovation in online markets, building on their previous work on Canada’s media landscape.

Recommendation 16

That the Government of Canada considers establishing facilitation between the educational sector and the copyright collectives to build consensus towards the future of educational fair dealing in Canada.

Recommendation 17

That the House of Commons Standing Committee on Industry, Science and Technology resumes its review of the implementation of educational fair dealing in the Canadian educational sector within three years, based on new and authoritative information as well as new legal developments.

Recommendation 18

That the Government of Canada introduces legislation amending section 29 of the Copyright Act to make the list of purposes allowable under the fair dealing exception an illustrative list rather than an exhaustive one.

Recommendation 19

That the Government of Canada examines measures to modernize copyright policy with digital technologies affecting Canadians and Canadian institutions, including the relevance of technological protection measures within copyright law, notably to facilitate the maintenance, repair or adaptation of a lawfully-acquired device for non-infringing purposes.

Recommendation 20

That the Government of Canada reviews section 29.21 of the Copyright Act to ensure that the creator of non-commercial user-generated content is not held liable for unintended copyright infringement.

Recommendation 21

That the Government of Canada monitors the implementation, in other jurisdictions, of extended collective licensing as well as legislation making safe harbour exceptions available to online service providers conditional to measures taken against copyright infringement on their platforms.

Recommendation 22

That the Government of Canada asserts that the content management systems employed by online service providers subject to safe harbour exceptions must reflect the rights of rights-holders and users alike.

Recommendation 23

That the Government of Canada introduces legislation to amend the Copyright Act to facilitate the use of a work or other subject-matter for the purpose of informational analysis.

Recommendation 24

That the Government of Canada works with industry and relevant stakeholders to explore ways to support the production of works published in formats specially designed for persons with a perceptual disability, and to measure, every year, the availability of works published in such formats.

Recommendation 25

That the Government of Canada makes regulations to require notices sent under the notice-and-notice regime be in a prescribed machine-readable format.

Recommendation 26

That the Government of Canada examines ways to keep IPv6 address ownership information up-to-date in a publicly accessible format similar in form and function to American Registry for Internet Numbers’ IPv4 “WHOIS” service.

Recommendation 27

Following the review of the Telecommunications Act, that the Government of Canada considers evaluating tools to provide injunctive relief in a court of law for deliberate online copyright infringement and that paramount importance be given to net neutrality in dealing with impacts on the form and function of the Internet in the application of copyright law.

Recommendation 28

That the Government of Canada introduces legislation amending the Copyright Act to increase upper and lower limits of statutory damages provided under sections 38.1(1), 38.1(2) and 38.1(3) of this Act to account for inflation, based on the years when they were originally set.

Recommendation 29

That the Government of Canada introduces legislation amending the Copyright Act to clarify that users can negotiate with a collective society as a group and to allow users to jointly apply to the Copyright Board of Canada when the Board deems it appropriate.

Recommendation 30

That the Government of Canada reports to the House of Commons Standing Committee on Industry, Science and Technology within three years on the effectiveness of the reform of the Copyright Board of Canada, including measures introduced and amended by the Budget Implementation Act, 2018, No. 2.

Recommendation 31

That the Government of Canada introduces legislation amending section 72(2) of the Copyright Act to ensure that the radio royalty exemption only applies to small, independent broadcasters.

That the Government of Canada make regulations to define “community systems” under section 72(6) of the Copyright Act to identify broadcasters to which section 72(3) of this Act applies.

Recommendation 32

That the Government of Canada evaluates the forms of statutory damages available under the Copyright Act to a collective society or a rights-holder who has authorized a collective society to act on their behalf where the Copyright Board of Canada sets applicable royalties and the defendant has not paid them.

Recommendation 33

That the Government of Canada studies the private copying regimes in place in other countries with a view to identifying the digital environment, the distribution of royalties flowing from the private copying levy, and the impact on consumers on which a private copying levy applies, including the effects of the private copying regime on the retail prices of the different types of digital device to which they apply.

Recommendation 34

That the Government of Canada evaluates the constitutional feasibility of establishing minimum standards in private agreements relating to a transfer of a right provided by the Copyright Act.

Recommendation 35

That the Copyright Board of Canada reviews whether provisions of the Copyright Act empower the Board to increase the transparency of collective rights management to the benefit of rights-holders and users through the tariff-setting process, and report to the House of Commons Standing Committee on Industry, Science and Technology within two years.

Recommendation 36

Given the important role of collective societies in the copyright framework and in the collective administration of rights, that the Government of Canada considers the benefits and mechanisms for increasing the transparency of collective societies, particularly with regards to their operations and the disclosure of their repertoire.