In the summer, the House of Commons Standing Committee on Industry, Science and Technology (the “Committee”) released its report on the Statutory Review of the Copyright Act (the “Report”).
While copyright law rarely features high on the legislative agenda, the Report gives an indication of areas for future reform as well as potential changes in the statutory regime in Canada. It remains to be seen what the extent of any actual changes may be and, given Canada’s (slow) experience in enacting significant reform on trademark law, we may be waiting a while for anything other than minor tweaks.
As the foreword in the Report makes clear, copyright is something that touches most Canadians, even if they do not realize this:
The importance of [the Canadian Copyright] Act is unquestionable: as the Honourable Navdeep Bains and the Honourable Mélanie Joly said in their letter to the Committee, while “often underappreciated, the Copyright Act impacts Canadians every day, shaping what we see and hear, and enhancing our systems for the creation and use of content.”
The Committee’s review and Report was completed as part of a statutorily mandated five year review (the “Review”), pursuant to Section 92 of the Copyright Act, R.S.C. 1985, c. C-42 (the “Act”):
Five years after the day on which this section comes into force and at the end of each subsequent period of five years, a committee of the Senate, of the House of Commons or of both Houses of Parliament is to be designated or established for the purpose of reviewing this Act.
While the calendar would indicate the Review was meant to begin in 2017, it didn’t get going in earnest until 2018 and was not completed until 2019. However, time was not wasted and a lot was covered in the Review: as noted in the Report, the “Committee held 52 meetings, heard 263 witnesses, collected 192 briefs, and received more than 6,000 emails and other correspondence”.
In the end, the Committee distilled their analysis into 36 recommendations. Interestingly, beyond the formal recommendations, the Report also included what were termed ‘observations’ of the Committee, and as noted in the Report, while “these observations do not amount to recommendations, they constitute a genuine effort to respond and engage with stakeholders who have taken the time and expended resources to partake in the review, rather than leaving them to speculate on the Committee’s motives”.
We now turn to a number of the most notable or interesting (in the author’s view!) recommendations in the Report—some were very broad, and others dealt with very specific minutiae of the Act:
- The Committee recommended doing away with the statutory five-year review of the Act (recommendation 1). This was driven by a number of considerations, including that it was not clear that the set period was appropriate, and indeed a proper review may be more contingent on when there is a particular need (e.g. specific circumstances that warrant review). Otherwise, too frequent a review may itself create instability in the regime and not allow sufficient time for any earlier changes to percolate and be properly assessed.
- An oft-cited concern about the Act is its complexity (in part due to its history and the grafting in of provisions to respond to various needs, e.g. treaties or domestic concerns etc.) and thus a “comprehensive overhaul” may be warranted to reduce the complexity of the Act (recommendation 2). Similarly, while everyone has an opinion or viewpoint on copyright, the Committee was struck by the lack of hard and impartial data. They therefore specifically called for measures to capture and evaluate such data (recommendations 3 and 4—this may, in turn, also assist with the further study recommended in relation to Canada’s private copying regime, see recommendation 33).
- The Committee was also aware of concerns that Canadian law and the Act fail “to meet the expectations of Indigenous peoples with respect to the protection, preservation, and dissemination of their cultural expressions” and called on the government to engage on this point, with a view to future developments (recommendation 5).
- The Report makes a number of recommendations regarding the duration of copyright and reversionary rights (recommendations 6 through 8), interestingly calling for the formulation of a time-limited, non-assignable termination right to the creator exercisable 25 or more years after a work is created (recommendation 8). This could have potentially far reaching consequences for copyright contracts and assignments, as well as on creators. Similarly, the Committee recommended consideration be given to the enactment of an ongoing “artist’s resale right” or royalty on resale (recommendation 9).
- The issue of Crown copyright received a fair bit of criticism and suggestions for reform (recommendation 11), much of this relating to broader policy issues regarding aspects such as openness and dissemination. The Report came before the Supreme Court’s decision in Keatley Surveying Ltd. v Teranet Inc., since released and discussed in another article—which, not unexpectedly, does not answer the broader policy issues that are up to government to resolve.
- Further study was recommended in relation to the vexed issue of remuneration rights for journalistic/news works online, in particular in the context of online service providers often now being the primary ‘gateway’ to the news for the public (recommendation 15—similar issues vis-à-vis technological changes and online dissemination factored in recommendations relating to online safe harbour provisions, see recommendations 21 and 22).
- Somewhat similarly, as no clear consensus on fair dealing (and in particular educational fair dealing) was forthcoming between the “users” and “publishers”, further study and facilitation of a consensus was recommended (recommendations 16 and 17, but see also recommendation 18 on making the fair dealing purposes list illustrative, instead of exhaustive). Depending on how further reform is crafted, there is potential for significant changes to Canada’s fair dealing (akin to fair use) laws.
As is clear, the Review and the Report provide some significant specific recommendations and many calls for further study or consideration for future reform. Only time will tell what the nature and scope of legislative reform of Canadian copyright law will be, but anyone who deals with copyright (i.e. everyone in Canada, but an increasingly global population of content creators and content users) will be well-minded to keep an eye on potential upcoming changes.
For the reader’s reference, the complete list of 36 recommendations from the Report can be found here.
 See the section entitled “5-Year Review of the Act” at https://www.cwilson.com/canadian-copyright-law-year-in-review-2018/