Copyright term extension and orphan works – Copibec brief

Copyright term extension and orphan works – Copibec brief

Last February, the Department of Canadian Heritage announced it was launching consultations to modify how long copyright protection lasts under the Copyright Act. At that time, the government also initiated technical consultations on how to manage orphan works. In line with its mission of protecting and promoting copyright, Copibec is contributing to this debate by submitting a brief to the House of Commons.

Read Copibec’s brief (in French).

These consultations come in the wake of the Canada-United States-Mexico Agreement (CUSMA). In that trade agreement, Canada made a commitment to align some of its intellectual property legislation with that of the U.S., including the timeframe for copyright protection. The copyright term will have to be extended by 20 years so it covers the author’s life plus 70 years following the author’s death.

How that extension will be applied to the Copyright Act hasn’t been determined yet. Although the government could simply extend copyright protection to any work that hasn’t already entered the public domain, some stakeholders have proposed making the extension conditional on registering the copyright with the Canadian Intellectual Property Office (CIPO).

Copyright registration is a bad idea

During the last process to examine the Copyright Act (2017-2019), a few stakeholders told the House of Commons Standing Committee on Industry, Science and Technology (INDU) that they were concerned the extension would limit access to content, especially orphan works.

Even though a large number of stakeholders had noted that copyright term extension “would increase opportunities to monetize copyrighted content, and thus increase the value of copyright holdings and encourage investments in the creation, acquisition, and commercialization of existing and future copyrighted content,” the Committee still recommended that the extension be conditional on registration of the work by the copyright owner (Recommendation 6).

In Copibec’s view, this is a very bad idea. In our recent brief, we recommend that the 20-year extension not be conditional on registration of the content. In addition to going against Canada’s international obligations, that kind of condition would generate an unfair administrative burden for creators.

Non-compliance with international agreements

It’s important to note that Canada has signed the Berne Convention, an international agreement governed by the World Intellectual Property Organization (WIPO). It states that copyright must apply automatically as soon as the content is created and must not require any formalities such as registration.

Unfair administrative and financial costs

Registering each of their copyrighted works is a time-consuming and expensive process for copyright owners. Every copyright registration costs at least $50 for the requesting party. For copyright owners whose income stream may be uncertain and who may have many works in their portfolio, the financial burden is substantial.

Plus, it’s unlikely foreign rightsholders would register their copyrights in Canada. This unfair situation would create 2 categories of works and rightsholders, with foreigners not enjoying the same protection as Canadians.

Current copyright protection is still ineffective

Will this extension really provide copyright protection for a longer term if the Act is still riddled with exceptions? Many stakeholders, including Copibec, are asking that question.

For years now, the organizations representing Canadian creators have been asking for a complete review of the Copyright Act to reduce the scope of the exceptions it contains. The numerous, poorly defined exceptions allow copyrighted content to be used on a massive scale without paying any compensation to creators.

In particular, adding the concept of education to the fair dealing exception opened the door so that Canadian educational institutions could disengage from their responsibilities towards local content creators. Here in Quebec, the exceptions created downward pressure on the royalties paid in the higher education sector, where rates fell by 30% to 50%. In the rest of Canada, almost all the universities stopped paying royalties entirely. By refusing to pay creators, those institutions caused an 80% drop in royalty payments.

During the process launched by the House of Commons to review the Copyright Act in 2017, the creator community, together with Copibec, was unanimous in asking for the Act to be strengthened.

The government’s 2 standing committees were made aware of those demands before they issued their reports. In its report that touched on copyright term extension, the INDU Committee acknowledged the problems caused by the numerous exceptions. For its part, the Standing Committee on Canadian Heritage proposed in its Shifting Paradigms report that copyright be completely updated to provide a framework for those exceptions.

In our brief, Copibec is once again asking the government to apply the recommendations from the Shifting Paradigms report so copyright owners can benefit, especially through collective licensing, when their content is used and commercialized.

Consultations about orphan works

It was a big surprise to many, including Copibec, when the government launched technical consultations on managing orphan and out-of-commerce works. Some stakeholders believe that extending the copyright term could complicate access to orphan works (i.e. content whose copyright owner cannot be located) and content no longer commercially available. As part of those technical consultations, the government is proposing that 3 possible solutions be discussed.

In our brief, Copibec notes that these issues were not addressed, either in form or substance, when the Copyright Act was examined in 2017. It seems premature to review those proposals before undertaking broader, constructive consultations with the various stakeholders in the cultural sector. Moreover, stakeholders have been given only a few weeks to analyze the issues and prepare their briefs.

Collective licensing is still the best solution

In our view, among the 3 solutions proposed by the government, the solution that relies on collective licensing expertise seems the most suitable in principle. It eliminates the need for requesting parties to carry out long procedures with the Copyright Board and also avoids imposing an administrative workload on individual copyright owners.

Nevertheless, true satisfaction for creators will come only when the government has overhauled the Copyright Act to better protect content and ensure adequate compensation for copyright owners.