Colleges and Institutes Canada (CICan)

Maximizing Access while Protecting Copyright: a response to the "Consultation on how to implement an extended general term of copyright protection in Canada"

Submitted to: The Government of Canada
(Innovation, Science and Economic Development Canada and Canadian Heritage)

March 26, 2021

Colleges and Institutes Canada (CICan) welcomes the opportunity to provide feedback to the Government of Canada in response to its Consultation on whether accompanying measures should be adopted in the implementation of an extended general term of copyright protection in Canada.

Recommendation

CICan recommends that rights holders be required to register their works if they seek copyright protection for the 20-year term extension and that copyright cannot be enforced during those 20 years unless the alleged infringement occurs after registration of the work.

Introduction

CICan is the voice of Canada's publicly-supported colleges, institutes, CEGEPs and polytechnics (hereinafter referred to as "colleges"), as well as an international leader in education for employment, and innovation, with ongoing programs in over 25 countries. Working in close collaboration with industry and community partners, colleges strengthen Canada's capacity to innovate by undertaking applied research in all sectors to create, refine or adapt products, services, technologies, and processes, contributing to inclusive economic growth.

CICan's members have a significant footprint across the country with over 670 locations serving 95% of Canadians in urban, rural, remote, and northern communities, and 86% of Indigenous people live within 50 kms of a college campus.

Copyright matters to colleges, their students, faculty, and staff, and they recognize the importance of both creators' and users' rights. Copyright legislation affects the way students and educators can access and use copyright-protected materials, and consequently, impacts teaching, learning and research. In this digital age, it is imperative that the Copyright Act supports new ideas, allows the dissemination of knowledge, permits access to education, embraces technological innovation, and is flexible enough to accommodate changes that will occur in the future.

Impacting access in the college reality

The extension of the general term of copyright protection from life-plus-50-years to life- plus-70 years presents miniscule benefits for a small number of rights holders. It will however significantly impact the already limited access college libraries, students and educators have, to orphan works, out-of-commerce works and highly commercialized works.

These works help contribute to cultural and heritage studies, historical documentation and research, and the development of new works. They provide opportunities for example, for students to adapt music scores and create new ones; for lost works to reveal unknown facts that help us understand the past; for schools to digitize materials for teaching and learning in a digital environment; and for more comprehensive research and development to be achieved. More importantly they support new, young creators in achieving their goals. These upcoming innovators are consumers of the public domain and the future of Canada, delivering new and bright ideas that contribute to the country's economic development. They need access to a robust public domain of creative works to help them generate new works, adapted works, whimsical remakes and thought-provoking creations. Many of these new creators are students at colleges across Canada.

Post-secondary institutions today already face high costs and/or an onerous clearance process to access these works. Colleges make every effort to contact the owner/rights holders of works to secure permission and pay for access, but they frequently do not respond or cannot be found. In addition, requests for access to digitized materials for academic use are often denied. Under the Canada-United States-Mexico Agreement (CUSMA), important historical and cultural works will continue to be locked away from study and research for future generations.

While the Copyright Act's current structure and case law afford some latitude in the educational community for instructors to foster student learning, the pandemic has unfortunately exacerbated and increased the challenges of teaching and learning in a predominantly online world. For example:

• College libraries face challenges in securing electronic licences that are either not available or too expensive.
• Many publishers do not provide electronic purchasing options for libraries. Even if this is available, college budgets for digital copies are limited.
• On many occasions, vendors' licensing requirements and/or technological protection measures hamper access, despite the fact, that the intended uses are permitted under the Copyright Act.

Although vaccines offer the promise of in-person delivery, the reality of the endemic world is that education may stay predominantly or partially online for the future. It is not in Canada's best interests for our system of copyright to impede access to vital educational resources. As the Government considers accompanying measures for the extension of term, it should also consider clarifying and reinforcing that, under the Copyright Act, principles of technology neutrality allow for equitable use and distribution of intellectual works in digital form.

Mitigating impacts while supporting creativity and research

Although it is clear the term extension will move forward regardless, every effort must be made to ensure the Copyright Act presents an equitable balance between rights for creators and what is fair for users.

To mitigate the negative impacts of the 20-year term extension, the onus should be on rights holders requiring them to register their works. This can be done either through the existing Canadian Intellectual Property Office (CIPO) copyright registration system or, through a new to-be-developed mechanism to support this objective. To further protect users, any alleged infringement could only be pursued if it occurs after the registration of the work. This step is consistent with the recommendations of the prior Standing Committee on Industry, Science and Technology (INDU) following the 2017-2018 Statutory Review of the Copyright Act.

Registration will not only provide rights holders with longer copyright protection and maintain the commercial benefit in the registered works, but for those who do not register their works, it will increase the public's access to creations that have little or no commercial value. This approach respects Canada's commitments under international law, harmonizes our approach with the European Union and is consistent with the Berne Convention.

Conclusion

The Government of Canada must lead with a balanced copyright approach and recognize what is fair for all users as well as creators. Requiring rights holders to register their works for the 20-year extension will provide them with more protection, and will also benefit students, educators, historians, and researchers by helping them to build on older works available in the public domain. It will further promote and support the development of historical and cultural research, adapted works, and newly created works. And finally, it will support the second part of a life cycle of a work protected by copyright, the public domain, all while respecting international law.