Why we need copyright reform now

Hugh Stephens is the author of the forthcoming book In Defence of Copyright.

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Heritage Minister Pablo Rodriguez has been one of Prime Minister Justin Trudeau’s more successful ministers when it comes to “deliverology,” fulfilling the terms of his mandate letter.

Among the items on Mr. Rodriguez’s “to do” list was reintroduction of legislation to reform the Broadcasting Act to ensure that “foreign web giants” contribute to the creation and distribution of Canadian content, as well as swift introduction of legislation to require digital platforms that generate revenue from the publication of news content to share a portion of their revenues with Canadian news outlets. Mr. Rodriguez has achieved both through passage of Bill C-11 (Online Streaming Act) and Bill C-18 (Online News Act). Check and check. Both are now in the hands of the CRTC to develop implementing regulations and while both are controversial and could cause unintended collateral damage if not handled carefully, the legislation has been delivered as instructed.

Not so, however, with another important “to do” item: to work with the Minister of Innovation, Science and Industry to amend the Copyright Act “to further protect artists, creators and copyright holders, including to allow resale rights for artists.” Nothing has been done so far on this score despite Copyright Act updating being long overdue, despite two parliamentary committees having reviewed the subject and despite continuing unauthorized, unpaid appropriation by Canada’s secondary and postsecondary educational sector of content produced by Canadian authors.

The last time Canada’s Copyright Act was updated was back in 2012. At that time, amendments to meet Canada’s obligations under international internet treaties signed back in the 1990s were long overdue. Following the 2012 revisions, the act was supposed to be reviewed every five years. We are now at 11 years and still waiting for important shortcomings identified in the first review to be addressed.

The delays in addressing some of the problems inadvertently created in 2012 have put Canada’s educational publishing industry on life support. The well-intentioned, but misguided addition of the broad term “education” as a specified fair dealing purpose opened the door to wide-scale unlicensed copying of educational hard copy and digital content by schools and postsecondary institutions. After this change, most postsecondary institutions outside Quebec gave up the reproduction licences they used to obtain from the Canadian copyright collective, known as Access Copyright, and unilaterally declared that the copying guidelines they formerly followed under their Access Copyright licences now constituted fair dealing, a recognized legal exception to copyright protection.

A decade of court cases has still not fully resolved the issue, but as part of the lengthy legal process, the courts undermined the principle of collective licensing that operated effectively for decades. The result is that Canadian authors and publishers have been indirectly subsidizing the postsecondary and school sectors for more than a decade. There has been a drastic decline in revenues for authors with the result that fewer Canadian texts and other materials have been published. Graphic evidence of the damage caused is the announcement this week that Access Copyright’s Board of Directors has reluctantly decided to downsize and restructure the organization.

A simple fix, recommended by one of the parliamentary committees that examined the issue, would be to prohibit fair dealing educational copying when commercially available alternatives, such as licensed materials, exist. This should be task No. 1 for Copyright Act reform, along with restoring the collective licensing regime.

Other copyright-related issues involve the type and extent of text and data mining that should be allowed for research and what terms should apply to copyrighted content used to feed Artificial Intelligence (AI) algorithms. Canada’s Copyright Act is silent on this issue, putting Canada at a disadvantage when it comes to innovation in this fast-evolving field. While the intersection of copyright and AI needs to be defined, so too do issues such as Indigenous cultural expression. How can traditional community-based cultural expression be harmonized with copyright law?

The artists’ resale right specifically mentioned in Mr. Rodriguez’s mandate letter also needs action. A resale right would allow artists to enjoy a modest share of the proceeds when their works are subsequently resold by dealers. It would avoid the plight of the Inuk artist Kenojuak Ashevak, who sold her work Enchanted Owl (which was featured on a Canadian postage stamp in 1970) for $24 in the 1960s, only to see it sold and resold for hundreds of thousands of dollars later in her life, for which she received not a penny. This is a situation common to all artists in Canada, but not in many parts of the world where a resale right exists. If Canada joined that club, artists of Canadian works selling abroad would benefit from reciprocal treatment. This is just one of a number of pressing reasons why Copyright Act reform needs to take place now.

The burden falls equally, if not more, on François-Philippe Champagne’s Industry Department along with the Department of Canadian Heritage and Mr. Rodriguez. Canada’s writers and artists, its innovation economy and Indigenous peoples deserve as much attention as broadcasting, filmmaking and the news media.