Canadian Copyright Law Research Articles

Myra Tawfik, For the Encouragement of Learning: The Origins of Canadian Copyright Law

Myra Tawfik, For the Encouragement of Learning: The Origins of Canadian Copyright Law

Abandoned But Not Forgotten

Under Canadian copyright law, archives and other cultural heritage institutions (CHIs) cannot legally share and distribute any orphan works in their collections. Orphan works are copyrighted materials whose copyright holders cannot be located or identified. To prove that a work is truly orphaned, the proposed user must demonstrate that the copyright holders could not be located after a diligent search. The burden of this rights clearance increases for CHIs that have large collections of orphan works. This paper reviews the current legal context for using orphan works in Canada, and the shortcomings. I propose a new system for orphan works rights clearance based on two parts. Firstly, formalizing the requirements for a diligent search to make them clear and objective. Secondly, creating a less stringent set of requirements specifically for use by CHIs, so that it is feasible for them to do diligent searches for large collections of materials. This paper also discusses and refutes multiple arguments against the proposed system.

Introduction of a New Exception: The Protection of User-Generated Content under UK Copyright Law

The rapidly developing Web 2.0 technologies positively affect the development of User-generated Content (UGC). UGC is considered as various types of multimedia content generated by online users that are available publicly. The situations of UGC are not optimistic in the UK, as the current copyright protection for original works is deemed to be over strict, which leads to a series of problems such as an inhibition of freedom of users and hindrance to economic growth and innovation. In order to explore how to effectively introduce the new exception into the copyright law of the UK, this paper refers to the copyright protection approaches of the copyright laws of Canada and the US for UGC. With respect to the Canadian experience, Canadian copyright law adopts a semi-open dealing system, whereas US copyright law establishes a fair use system to protect UGC. Both methods have achieved some degree of success in practice. However, each of them has its drawbacks. The introduction of semi-open fair trade system into the UK copyright system will improve the flexibility and efficiency copyright protection of UGC. But it has also been criticized for imposing too much emphasis on non-commercial purposes and for overlapping protection issues. The core advantage of the US fair use system is that it is flexible to balance exclusive rights with satisfying social, cultural and economic needs, but one of the realistic problems is that the UK does not have a tradition of fair use system and whether it can be implemented in the UK copyright law remains to be seen. After a comparison between the US approach and Canadian approach to the copyright protection of UGC, it can be concluded that a semi-open fair dealing regime for a UGC exception in UK copyright law with reference to Canadian experience is much more suitable for the UK, which will provide more flexibility and legal certainty.

What Has Changed Since 2015? A New and Expanded Update on Copyright Practices and Approaches at Canadian Post-Secondaries

Objective – The aim of this study is to update our understanding of how Canadian post-secondary institutions address copyright education, management, and policy matters since our last survey conducted in 2015. Through the new survey, we seek to shed further light on what is known about post-secondary educational copying and contribute to filling some knowledge gaps such as those identified in the 2017 statutory review of the Canadian Copyright Act. Methods – In early 2020, a survey invitation was sent to the person or office responsible for oversight of copyright matters at member institutions of five Canadian regional academic library consortia. The study methods used were largely the same as those employed in our 2015 survey on copyright practices of Canadian universities. Results – In 2020, respondents were fewer in number but represented a wider variety of types of post-secondary institutions. In general, responsibility for copyright services and management decisions seemed to be concentrated in the library or copyright office. Topics covered and methods used in copyright education remained relatively unchanged, as did issues addressed in copyright policies. Areas reflecting some changes included blanket collective licensing, the extent of executive responsibility for copyright, and approaches to copyright education. At most participating institutions, fewer than two staff were involved in copyright services and library licenses were the permissions source most frequently relied on “very often.” Few responded to questions on the use of specialized permissions management tools and compliance monitoring. Conclusion – Copyright practices and policies at post-secondary institutions will continue to evolve and respond to changes in case law, legislation, pedagogical approaches, and students’ learning needs. The recent Supreme Court of Canada ruling on approved copying tariffs and fair dealing provides some clarity to educational institutions regarding options for managing copyright obligations and reaffirms the importance of user’s rights in maintaining a proper balance between public and private interests in Canadian copyright law.

Canadian Collaborations: Library Communications and Advocacy in the time of COVID-19

The COVID-19 pandemic forced libraries to unexpectedly and suddenly close their physical locations, necessitating a remote working environment and a greater reliance on digital and virtual services. While libraries were in a better position than most sectors due to decades of experience in licensing and acquiring digital content and offering virtual services such as chat reference, there still were some services and resources that traditionally had only been offered in a face-to-face environment, or were available in print only. There were questions in the Canadian library community about how, and if these programs could be delivered online and comply with Canadian copyright law. This article will describe the access and copyright challenges that Canadian libraries faced during the first nine months of the pandemic and will outline the collaborative efforts of the Canadian library copyright community to respond to these challenges.

Fair Dealing for the Purpose of Education: York University v The Canadian Copyright Licensing Agency

In York University v The Canadian Copyright Licensing Agency (2020), the Federal Court of Appeal was confronted with two issues at the heart of ongoing debates in Canadian copyright law. First, whether tariffs of copyright collective societies are mandatory. Second, and the main focus of this case comment, how should the fair dealing doctrine be interpreted with respect to the purpose of education. The Federal Court of Appeal upheld the Federal Court decision that York University Fair dealing Guidelines did not meet the fair dealing requirements in copyright law. This case comment highlights how the Federal Court and Federal Court of Appeal failed to consider important contextual elements of York University Guidelines that might have led to different conclusions. It provides some guidance on how fair dealing for the purpose of education should be interpreted. While fair dealing has been characterized as a “user right” by the Supreme Court of Canada in CCH Canadian Ltd v Law Society of Upper Canada (2004) and subsequent decisions, this case comment points to some of the shortcomings of fair dealing as a vehicle to promote greater access to educational materials. It concludes by highlighting the challenges that lie ahead on the application of fair dealing to educational institutions, and by broadening the debate of access to educational materials beyond the fair dealing doctrine.

カナダ著作権法における「利用者の権利」としての著作権制限規定

カナダ著作権法における「利用者の権利」としての著作権制限規定

The Value Gap in Music Markets in Canada and the Role of Copyright Law

The Value Gap in Music Markets in Canada and the Role of Copyright Law

Colonial Copyright Redux: 1709 vs. 1832

The study of colonialism shows us that the law often serves the needs and interests of both the Imperial power and the subjugated country. Concessions are necessary to rule a conquered population. In order to understand Canadian law and the measure of Imperial influence, one must understand the dialogue between the various legal traditions. This essay will examine legal transplants in a historical and colonial context. It will begin with a brief review of Canadian history in order to understand the evolution of Canadian copyright law. It will focus on the creation and significance of Canada’s first copyright legislation. Using the Statute of Anne as a reference point, this essay will describe the evolution of Canadian copyright law on its journey to self-determination during the 18th and 19th centuries. More specifically, this essay will explore the influence of the 1709 Statute of Anne on the 1832 colonial Acte pour proteger la propriete intellectuelle. It will argue that the influence of the Statute of Anne as an expression of the Canadianess of Canadian copyright policy is not to be found in the text of 1832. It can be found in the small prints of the numerous bills and amendments proposed to the English Parliament, in those provisions buried in the text which triggered an open war between Canadian, American and English publishers and stigmatized by the 1847 Foreign Reprints Act. It is in the context of the 1847 piece that the influence of the Statue of Anne and its monopolistic or imperialistic effects can be fully grasped.

What Happened After the 2012 Shift in Canadian Copyright Law? An Updated Survey on How Copyright is Managed across Canadian Universities

Abstract
 
 Objective – The purpose of this study is to understand the practices and approaches followed by Canadian universities in copyright education, permissions clearance, and policy development in light of major changes to Canadian copyright law that occurred in mid-2012. The study also seeks to identify aspects of copyright management perceived by the universities to be challenging.
 
 Methods – In 2015, an invitation to complete an online survey on institutional copyright practices was sent to the senior administrator at member libraries of Canada’s four regional academic library consortia. The invitation requested completion of the survey by the person best suited to respond on behalf of the institution. Study methods were largely adapted from those used in a 2008 survey conducted by another researcher who targeted members of same library consortia.
 
 Results – While the university library maintained its leadership role in copyright matters across the institution, the majority of responding institutions had delegated responsibility for copyright to a position or office explicitly labeled copyright. In contrast, respondents to the 2008 survey most often held the position of senior library administrator. Blanket licensing was an accepted approach to managing copyright across Canadian universities in 2008, but by 2015 it had become a live issue, with roughly half of the respondents indicating their institutions had terminated or were planning to terminate their blanket license.
 
 Conclusion – In just seven years we have witnessed a significant increase in specialized attention paid to copyright on Canadian university campuses and in the breadth of resources dedicated to helping the university community understand, comply with, and exercise various provisions under Canadian copyright law, which include rights for creators and users.

An Evidence-Informed Picture of Course-Related Copying

Recent changes in Canadian copyright law have prompted Canada’s educational institutions to reexamine their need for a blanket copying license. Users’ rights under the amended Copyright Act now include fair dealing for purposes of education, and the Supreme Court has established that copying short excerpts for classroom use can qualify as fair dealing. This study looks at one university’s examination of copied course materials made available via library reserve, coursepacks and its learning management system, and likely sources for copyright permissions, when needed. Results suggest that fair dealing is the most important and the institution’s blanket license is the least important basis for permissions clearance over a semester’s worth of copying.

Remix prohibited: how rigid EU copyright laws inhibit creativity

With the emergence of the digital environment, the issue of “transformative uses” in copyright law has gained renewed interest in legal literature. While many authors emphasized the challenge that these transformative practices constituted for copyright law, there has been a clear lack of comprehensive study of the extent of copyright law's (in)hospitality to such practices. In addition, too little attention has been paid to possible solutions to resolve this conflict inside the copyright regime. This paper aims to contribute to fill these two gaps. In this first paper, we will provide a comprehensive assessment of the status transformative uses in EU, Belgian and French law, informed by a vast body of case law. In a second paper, we will discuss potential solutions drawing inspiration from Canadian copyright law, which has recently experienced both the introduction of a legal exception for user generated content, and a court-led shift from a traditional closed-list fair dealing system to a broader, semi-open system of exceptions and limitations..

User production and law reform: a socio-legal critique of user creativity

This article argues that recent scholarly attempts to prescribe creative agency to a user subject rarely consider how the user functions in a broader legal and cultural context. I suggest that the user is a complex subject defined by various cultural and legal discourses, following a critical body of scholarship that calls for a more nuanced approach to the issue of user production. I show how the user-a term often treated neutrally in the user production literature-is a subject that is already defined by extant legal discourses like copyright. This argument is developed in a detailed analysis of Canadian copyright law and the Copyright Modernization Act, a reform to Canadian copyright law, which attempted to address the phenomenon of user production. These examples show the user is embroiled in a broader set of creative politics where being defined as a user or an author can have commercial implications. I suggest greater specificity and qualification around the role and scope of the user is needed in future scholarship examining the phenomenon of user production.

The Supreme Court of Canada and the "Fair Dealing Trilogy": Elaborating a Doctrine of User Rights under Canadian Copyright Law

No abstract available.

Services to Patrons with Print Disabilities: US and Canadian Disability Policies, Recent Challenges, and US and Canadian Copyright Law

Services to Patrons with Print Disabilities: US and Canadian Disability Policies, Recent Challenges, and US and Canadian Copyright Law

User-generated online content 2: Policy implications

This paper examines the policy dimensions of user–generated content (UGC). It argues that policy–makers must create a policy environment that both balances both creator and end user’s rights and allows for the flourishing of UGC production and distribution because of both its economic and cultural value and ability to stimulate innovation. This paper emphasizes that UGC is an important creative outlet because it possesses either or both originality and transformativity. It discusses the multitude of means through which UGC generates value, serves as a medium for cultural expression and allows innovative activity. Despite the importance of UGC numerous barriers exist to inhibit its production including private ordering mechanisms such as licenses and technological protection measures and both major branches of intellectual property law (patents and copyrights). This paper reviews the current policy framework for UGC in the U.S., U.K., and E.U. before presenting a case study of the proposed UGC exception in Canadian copyright law. It concludes by discussing the how policy–makers can create a flourishing UGC environment and provides specific policy recommendations.

Join the Club: The Implications of the Anti-Counterfeiting Trade Agreement's Enforcement Measures for Canadian Copyright Law

The Anti-Counterfeiting Trade Agreement (ACTA) is the most recent international agreement by which Canada and other countries have sought to strengthen the protection and enforcement of intellectual property rights. While it was originally feared that ACTA would impose obligations that are in tension with the principles of Canadian copyright law, the final outcome of the ACTA negotiations moderated or removed many of the most controversial provisions in the agreement and thus has alleviated many of the concerns about the impact of ACTA on Canadian copyright law. Canada has taken the first steps toward satisfying ACTA’s copyright obligations with Bill C-11, the Copyright Modernization Act, which addresses some of the agreement’s digital copyright measures. Some legislative change still remains before Canada will have fully met ACTA’s copyright obligations, in particular to enhance the powers of customs and border authorities to enforce intellectual property rights. This article discusses ACTA’s evolution, negotiations, final text, and the extent of its rightsholder orientation. It then details the differences between ACTA’s provisions and the current Canadian Copyright Act, as amended by the Copyright Modernization Act, identifies which obligations in ACTA require further amendment, and suggests how these obligations may best be implemented to reflect important values and principles underlying Canadian copyright law.

Managing The Legal Risks Of High-Tech Classrooms

When professors and students utilize the Internet, course web pages, and other online learning tools, much of the material that they make use of is protected by copyright law. A blend of case law and legislation governs the use of online materials and how technology can be used in the classroom and in school-related activities, often creating confusion for content users. Educators and students alike need to be familiar with applicable laws and need to understand the implications of common activities such as using technology in the classroom, conducting research on the Internet, and using multi-media in classroom presentations and student projects. Canadian copyright law is currently undergoing a much-needed process of reform, in order to bring Canadian copyright law in line with the laws of the rest of the world, and to keep up with rapidly changing technology that has changed the way people use copyrighted materials. This paper will focus on the legalities surrounding the use of technology and digital media in educational settings. It will provide guidelines for Canadian educators to ensure that their use of information technology and digital materials in the classroom is both appropriate and acceptable, and will propose strategies to manage those risks.

Intellectual Property Colloquium Series: Canada and the Three-Step Test: A Step in Which Direction?

It is a real pleasure and honor to be here with you and to have an opportunity to talk about copyright reform in Canada. In particular, since this reform process is taking place with a particular international perspective in mind, it should provide an opportunity to discuss the relationship between national law and international norms in the field of copyright law. At the same time, I should like to give some sort of introduction to Canadian copyright law because, even though we are part of the same copyright law family, there are some differences between our two countries. These distinctions mean that some of the issues that will be raised today may be treated somewhat differently in U.S. law. As you know, of course, copyright law was born with technology and initially started in order to regulate printing in England. This year, we are celebrating the 300th anniversary of the first Copyright Act in the world, the Statute of Anne, which really is the mother of all copyright legislations, particularly in the common law, English-speaking world. And because it is the original reference in copyright law, some of the features of the Statute of Anne have continued in both U.S. copyright law and in what I call Commonwealth copyright law, that is, copyright law derived from England outside the United States. The distinction between copyright law derived from the United States and other Commonwealth states occurred because the United States gained independence much earlier than the other British colonies. The U.S. law that first developed, however, retained some features of the Statute of Anne. For instance, if one looks at the term of protection that existed here in the United States before 1976, it was a term of protection that depended upon registration--it initially lasted for twenty-eight years and was renewable for a second twenty-eight year term. Such a mechanism is a direct descendent of the Statute of Anne where the term ran for fourteen years from registration, with an additional fourteen year period. A shift took place in England. Perhaps because it is part of Europe, England has been subject to some continental influences as, for instance, with respect to the term of protection. To wit, in 1842, the old system of a set term renewable for a second set term was replaced by a term of protection of life plus seven years. Thus, in England, a term of protection based on the author's life was introduced already in 1842. The 19th century in England witnessed many other kinds of evolutions: copyright law expanded because people realized that it was not just about printing, but also about other forms of artistic expressions. Moreover, because of its role a colonial power, English copyright laws were applied throughout the British Empire. This dominance culminated in 1911 with the Imperial Copyright Act, (1) which was similar to a restatement of all previous copyright legislation into one act. This Act was made to be applicable to all the then colonies of England that could choose either to adopt the 1911 Act as is--which is, for instance, what Australia did in 1912--or to implement their own copyright act that was nevertheless to be in line with the Imperial Act. This process coincided also with the slow coming-of-age of the colonies of the British Empire. The Canadian Parliament decided to adopt its own statute, and did so in 1921. (2) The time between the English law and Canada's decision to adopt its own statute is partly due to the First World War. But the Canadian legislation is a rephrasing to a certain extent of the 1911 British Act. Therefore, this 1921 Act--which is still today, in a certain way, the basis of our current Copyright Act (3)--reflected 1921, if not 1911 technology. After the Second World War, many countries started to revise their copyright legislation. The process that started in the 1950s in Canada led to a great number of reports about what should be done to modernize the Copyright Act, studies upon studies with no real action taking place. …

All the Game's a Stage: Machinima and Copyright in Canada

The primary purpose of this article is to examine the extent to which Canada's copyright laws permit the creation of machinima, an art form broadly defined as the creation of films within video games. This article is structured as follows. First, it will introduce machinima, discussing its origins, its development and its social importance. Second, it will examine whether the acts of creating and distributing machinima infringe copyright in Canada. Third, it will ask whether there are any defences to copyright infringement on which machinimators (those who create machinima) can rely. This article will demonstrate that, in many cases, the creation and distribution of machinima likely infringes Canadian copyright law. Furthermore, a large percentage of machinima that are found to infringe copyright will not be protected by the fair dealing defence as it is currently being applied by Canadian courts. This article will conclude by situating the narrow issue of machinima and copyright infringement within the broader context of creativity and copyright reform in the digital age.