Pascale Chapdelaine is associate professor, University of Windsor Faculty of Law
Myra Tawfik is EPICentre professor of intellectual property commercialization and strategy, University of Windsor Faculty of Law
In a brief submitted to the standing committee on industry, science and technology, 11 Canadian intellectual property scholars urged Parliament to maintain a balanced, distinctly Canadian copyright system that guards against external influences that do not serve the Canadian public interest, and to steer clear of “copyright exceptionalism.” Submitted as part of the Statutory Review of Canada’s Copyright Act, the brief contains recommendations on a number of critical fronts.
1. Canada’s contributions to global copyright norms should be celebrated and maintained: The Canadian copyright system is commended worldwide for its unique and creative approach to balancing competing interests (for example, allowing use of copyright works for non-commercial user-generated content). Parliament needs to continue to adopt measures that are consistent with Canadian values and aspirations.
While acknowledging that new obligations initiated by Canada under the United States-Mexico-Canada Agreement may limit the range of policy options available in certain respects such as term extension of copyright, Parliament needs to use the flexibilities built into Canada’s international agreements to minimize the effects of external pressures, and prioritize Canadian interests and domestic policy goals.
2. Copyright needs to comply with fundamental rights and basic principles of law: Copyright law needs to comply with the Canadian Charter of Rights and Freedoms and any restrictions it imposes on freedom of expression must be justifiable. Additionally, copyright must respect well-established principles of property law, contracts and remedies when it comes to the rights of users, copyright owners, and the public. Recent developments – including the progressive increase of copyright owners’ remedies against users – have obscured this important consideration. Canada needs to resist copyright reform imports (such as the creation of additional rights for newspaper publishers being debated in the European Union) without careful consideration as to whether these proposals are consistent with Canadian laws and values.
3. Consultation with Indigenous peoples: Canada must initiate a long overdue process of consultation with Indigenous peoples toward the recognition and protection of Indigenous traditional cultural expressions consistent with Canada’s obligations under the United Nations Declaration on the Rights of Indigenous Peoples, specifically Article 31.
4. Recognizing copyright user rights as an integral part of the copyright system: The brief contains several recommendations toward solidifying the scope of users’ rights to copyright works. The key recommendations include substituting fair dealing with fair-use-style provisions to ensure that the Canadian copyright system remains flexible as new technologies emerge and confirming that there can be no contracting out of exceptions to copyright infringement. In step with this, anti-circumvention technological protection measures should not override user rights and remedies should be available for users who are improperly restrained from making legitimate uses of copyright works.
5. Addressing new disruptive technologies and allowing open access to scientific publications: A number of recommendations were advanced, including: resisting the pressure to introduce additional remedies for copyright owners such as site blocking and site de-indexing; maintaining the notice and notice regime and limiting the availability of statutory damages. The brief also urged maintaining the status quo with respect to authorship and ownership requirements of works created by artificial intelligence – that is, that the exercise of skill and judgment by a physical person be maintained for works created with the aid of AI to receive copyright protection; and that safeguards should be put in place for text and data mining. Finally, in the spirit of open access to knowledge, publicly funded scientific publications should be made freely available after a reasonable period of time.
The signatories to the brief urged Parliament to continue to develop what has become a quintessentially Canadian approach to copyright, under which the rights and interests of users, owners and the public interest are carefully balanced, and to resist external pressures that deviate from that path.