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The Government’s Review of the

Copyright Act and the Copyright

Board – What’s at Stake?
MAY 5, 2018

(Views are personal and not necessarily those of my firm or clients and are not legal advice.
Some of this material has been recycled from my blog and previous presentations)
Who Does Copyright Law Affect?

• Creators of “works”
– Literary
– Artistic
– Dramatic
– Musical
• Does not include “industrial design” and certain mass
produced articles, e.g. chairs
• Owners of copyright, including publishers, record
companies, broadcasters, etc.
• “Neighbouring Rights”:
– Performers – musicians, actors, etc.
– Sound Recording Producers
– Broadcasters
• Users
What are the basic Copyright Rights?

• Economic Rights, including “exclusive” right

to “produce, reproduce, perform”, etc.
• Moral rights (which cannot be sold – but
which can be “waived”)
• “Users’ rights” (CCH v. LSUC 2004 SCC)
• Why creators are also “users”:
– “Good artists borrow – great artists steal”
– “Standing on the shoulders of giants”
Term of Copyright

• Life of author + 50 years

• Different for sound recordings – now 70 years
• How Canada differs from USA & EU
A Compressed History of Canadian
Copyright Law From 1709 To 2018
• 1709 – Statute of Anne
• 1886 – Berne Convention
• 1867 + – Early efforts at Canadian copyright legislation
• 1911 – UK legislation and template for Canada
• 1921 – Made in Canada remake of UK legislation
• 1935 – Parker Commission and birth of the Copyright Board
• 1957 – 1959 – Ilsley Commission
• 1971 – Economic Council Report
• 1977 – Keyes/Brunet Report
• Early 1980’s – Studies and White Paper
• 1988 – Major revision – extending scope of collective licensing
• 1997 – Major update providing neighbouring rights and statutory minimum
• 2002 - 2012 – Three Supreme Court of Canada cases on fair dealing + others
• 2012 – Copyright Modernization Act – included TPMs, notice and notice,
“education” + 5-year review
• 2015 – Supreme Court of Canada on “mandatory tariffs”
• 2017 – Access Copyright v. York University judgment
It’s 2018 – What’s Happening with
• Copyright Board Reform
• Overall Reform of the Copyright Act – the “S.
92 Process”
• Court Cases:
– Most notably, Access Copyright v. York University
Copyright Board Review
• Issues:
– Delays – typically 4+ years to hold a hearing and 3+ years to render a
– Access Copyright post-secondary still pending from 2010
– Decisions typically retroactive for 6++ years
– Cost of participation easily exceeds $1 million
– Until fairly recently, decisions were too often seriously wrong and
were overturned
– Difficulty in finding independent and credible Board members with
sufficient expertise
– Resource issue – does Board need more money – even though it has
more resources than the Competition Tribunal, etc.?
– What can be fixed by “regulation” and what requires “legislation”?
• Senate Hearings and BANC Report November 2016
• Papers submitted in September 2017 Consultation Process
The S. 92 Review - Some expected big
• Fair dealing
• Term Extension
• Whether tariffs are “mandatory”
• TPMs and when they can be circumvented
• Notice Provisions
• Whether contracts can override users’ rights
• Indigenous peoples’ issues
How to Get Involved in S. 92 “INDU”
Committee Review
• The Committee will conduct the review in three
phases. More specifically, the Committee will hear
testimony from:
– Witnesses representing specific sectors of activity,
including publishing, visual arts, software and
telecommunications (Phase I);
– Witnesses representing a range of stakeholders involved
in multiple sectors of activity, such as Indigenous
communities and various interest groups (Phase II); and
– Legal experts, including individual lawyers and
academics, along with professional associations (Phase

Michel Marcotte, Clerk of the Standing Committee on Industry, Science and

Tel: 613-947-1971
Short Term: The Committee's Travel

Monday, May 7 Halifax, Nova Scotia

Tuesday, May 8 Montreal, Quebec

Wednesday, May 9 Toronto, Ontario

Thursday, May 10 Winnipeg, Manitoba

Friday, May 11 Vancouver, British Columbia

How Will This Likely Play Out?
• Ministerial misgivings about copyright revision
• Allocation of responsibilities
• The Trade and Trump wild cards
• The Access Copyright attempted end-run attempt to make
tariffs mandatory in the guise of Copyright Board reform
• The history of hidden efforts at term extension
– 2003 – Lucy Maude effort
– 2015 – Harper Budget Bill
• Don’t count on transparency
• Count on lots of lobbying and phrases such as “Value Gap”
and inaccurate allegations about international law
• Count on American interests to say, in effect, “Do as we
say, not as we do”
• The election in 18 months from now
Why Artists Cannot Count on Your
Associations or on Copyright Itself
• What is an “artist”?
• The long history of artists being “used” by
publishers, collectives, etc.
• Some collectives are better than others at
• Some are more efficient than others
• Many if not most collective members make less
per year from their collective than junior
lawyers make per hour
• More efficient programs that help Canadian
artists exist, e.g. public lending right
• You have social media tools now – use them!
• Balance matters:
The proper balance among these and other public policy objectives lies
not only in recognizing the creator’s rights but in giving due weight to
their limited nature. In crassly economic terms it would be as inefficient
to overcompensate artists and authors for the right of reproduction as it
would be self-defeating to undercompensate them. Once an authorized
copy of a work is sold to a member of the public, it is generally for the
purchaser, not the author, to determine what happens to it. (highlight
Galerie d’Art du Petit Champlain inc. v. Claude Théberge 2002 SCC 34.

• Good luck!
• Visit my blog…
Thank you.