Library Code of Best Practices for Crown Copyright

The Canadian Association of Research Libraries (CARL) and the Canadian Federation of Library Associations (CFLA) recently published a document entitled Navigating Copyright for Crown-Published Works: A Code of Best Practices for Libraries.

"Libraries have assumed responsibility for the stewardship of this critical part of Canada’s culture and knowledge, which includes preserving and maintaining public access to this information. However, to do this work, libraries must first navigate Crown copyright protections that can, and often do, hamper these efforts."

"This document is intended to support libraries engaged in navigating copyright issues related to reproducing and sharing Canadian government publications for stewardship purposes. Specifically, this document provides guidance to libraries for digitizing and making available legacy print government publications, as well as collecting, preserving, and providing ongoing access to born-digital content from government websites."

"This code of best practices provides background information alongside a legal framework for these activities. It also shares some illustrative examples that document current practices in use within the library community and the current consensus around related best practices. While this document has undergone a legal and peer review process, it is not intended to be a substitute for legal advice."

Canadian Federation of Library Associations Position on Copyright in the Age of Generative Artificial Intelligence

The Canadian Federation of Library Associations (CFLA) recently published a position paper on the Canadian government's consultation on Copyright in the Age of Generative Artificial Intelligence.

The CFLA document looks at technical issues, text and data mining, authorship and ownership of works generated via artificial intelligence, and liability for copyright violations regarding AI.

In its summary, the CFLA concludes:

"Copyright law should not be utilized as a tool to tackle the broader societal challenges that may result from the effects of generative AI on society. Nor should AI innovation be constrained in Canada by laws that are inflexible and have fewer exceptions than other competing jurisdictions, such as the US, which has an expansive fair use doctrine for AI developers and researchers to rely on."

"AI possesses the capacity to revolutionize numerous occupations beyond individual creators, and such disruptive innovations have been seen throughout human history such as the printing press, automation in industry, and the digital disruption of the internet, to name a few examples. Addressing the resultant innovative disruption by supporting training for new opportunities in jobs related to AI development or by supporting worker retraining through organizations like community colleges, universities and public libraries, should be approached at an economic and society wide level ... As well, the Canadian government should invest in more grants and support for Canadian creative industries and for creators in the long term."

"As it currently stands there is a huge swath of information that is unavailable to Canadian higher education researchers and smaller independent AI researchers because of technological protection measures and prohibitive licensing fees to access some data sets. This includes licensed library resources that in many cases require additional text and data mining agreements to be able to be used by institutional researchers for TDM [text and data mining] purposes. Researchers may need access to many sets of data in order to complete a project, and there is a real risk that these research projects might not be realized. There is a societal risk of a regime of monopolistic access to data, where large AI or data companies are the only ones that can afford to gather, purchase or assume the risk of accessing data sets ... Democratic access is reduced under licensing regimes. It is in the public interest for Canadian AI researchers to have robust exceptions when it comes to TDM."

LawBytes Podcast on 20th Anniversary of Landmark CCH Copyright Case

In his most recent LawBytes podcast, University of Ottawa law professor Michael Geist talks with Scott Jolliffe, an IP litigator with the law firm Gowlings, about the Supreme Court of Canada decision in CCH Canadian v. Law Society of Upper Canada:

"Twenty years ago today the Supreme Court of Canada released CCH Canadian v. Law Society of Upper Canada, a decision that stands as perhaps the most consequential in Canadian copyright law history as it would firmly establish fair dealing as a users right and serve as the foundation for copyright law in Canada for decades to come. Leading off the hearing several months earlier for the Law Society was Scott Jolliffe, an IP litigator with the law firm Gowlings. Jolliffe was charged with arguing the fair dealing aspects of the case, but it was only at last moment that users right entered the picture. To mark its 20th anniversary, Jolliffe joins the Law Bytes podcast to talk about the CCH case, his strategy and insights from the hearing, and his thoughts on its impact many years later."

Recent Government of Canada Publications from the Weekly Acquisitions List

The Government of Canada's Weekly Acquisitions List can be a great way to discover new research reports published by various public bodies and agencies of the federal government. 

It is a record of all publications catalogued in the previous week.

The most recent list had a few documents that attracted my attention:

• Consultation on copyright in the age of generative artificial intelligence (Innovation, Science and Economic Development Canada) 
• Ten Years since Spirit Matters: A Roadmap for the Reform of Indigenous Corrections in Canada (Office of the Correctional Investigator)
• MAID and Mental Disorders: The Road Ahead (Report of the Special Joint Committee on Medical Assistance in Dying, House of Commons)
• Canada’s Sanctions Regime: Transparency, Accountability and Effectiveness (Report of the Standing Committee on Foreign Affairs and International Development, House of Commons)

Crown Copyright Code of Best Practices for Libraries

The Canadian Association of Research Libraries and the Canadian Federation of Library Associations (CFLA) have been working on a Crown Copyright Code of Best Practices for Libraries.

The Canadian Association of Law Libraries is a member of the CFLA and has argued for reform of Crown Copyright.

The draft code is now available for comment. 

As the draft explains:

"The current legal provision related to Crown copyright in Canada is found in Section 12 of the Copyright Act. It is extremely comprehensive in scope, granting the Crown copyright to any work that has been 'prepared or published under the direction or control of Her Majesty or any government department.' It also preserves the ancient royal prerogative or privilege that predates copyright law and it is silent about term length for unpublished works, leading to the assumption that these works are protected by copyright in perpetuity. These anomalies provide governments with expansive rights that could be used to withhold, censor or control government information to the detriment of the public good."

"Section 12 also sets out the duration of copyright controls for government works it covers. For published government works, the duration of the term of copyright is 50 years after the year of publication. In addition, and by virtue of Subsection 13(3) of the Copyright Act, the Crown, like any private sector employer, owns copyright in original work authored by its employees in the course of their employment. This copyright lasts until the end of the 70th year past the death of the author. Both Sections 12 and 13(3) may be modified by agreement but such agreements are relatively rare. Both apply to all works of the federal and provincial government and the territories and neither provides for compulsory licensing. In practice, government works are generally assumed to be protected by Crown copyright unless a personal author is named on the title page and the copyright statement does not clearly state that Crown copyright applies (e.g., © Government of Canada)."

(...)

"Confusion about the appropriate interpretation of the Act, and its hampering impact on the efforts of libraries attempting to serve as stewards of government works, was described in numerous submissions and testimonies presented to the Parliamentary Committee responsible for the Copyright Act review of 2018/2019, summarized by librarian Amanda Wakaruk and described in the Committee’s final report. Put briefly, this confusion, compounded by copyright anxiety and related legal chill, has impeded the work of libraries, which has resulted in the loss of innumerable government works, including both born digital files and legacy print materials."

"At the time of writing, the Government of Canada has yet to address the concerns of those that participated in the most recent legislative review or the near-continuous requests for review and reform made by Canadian library associations and the Canadian Association of University Teachers. Nor has it addressed the comments of the Supreme Court of Canada, that Section 12 be revisited by Parliament."

The issue was discussed earlier in December at one of the sessions at the Government Information Day(s) 2023.

Government Information Day(s) 2023 Program

The Ontario Council of University Libraries - Government Information Community will be hosting this year’s virtual Government Information Day(s) 2023 next week (December 12-14).

Topics include:

• parliamentary and legislative libraries and their work;
• current day issues with online government information and efforts to safeguard its permanence and accessibility;
• the metadata and organization of online government information;
• Crown Copyright and where we are at;
• Freedom of Information (FOI) for both the beginner and more advanced advocates;

Registration for the Zoom sessions is free.

Podcast Series Five Tech Law Cases Everyone Should Know

Law firm McCarthy Tétrault LLP has created a podcast series called Five Tech Law Cases Everyone Should Know:

"Hosted by Connor Bildfell, Five Tech Law Cases Everyone Should Know takes a closer look at five groundbreaking court cases that have shaped Canadian tech law. From de-indexing websites, to internet defamation, to data breach class actions, these cases cover a wide range of tech law issues. Throughout the podcast, leading practitioners offer their insights and experience to help you understand how these cases have been applied on the ground level."

The cases are:

• Google v. Equustek: do Canadian courts have the power to make injunctive orders with worldwide effects across the internet?
• Jones v. Tsige: a case about the tort of intrusion upon seclusion in the digital era
• SOCAN v. CAIP: can internet intermediaries be held liable for copyright infringement by users?
• Crookes v. Newton: can sharing a hyperlink to defamatory third-party content triggers liability under Canadian defamation law?
• Setoguchi v. Uber:  can a data breach, without any actual loss, trigger liability via a privacy class action?

Canadian Federation of Library Associations Statement on Copyright Myths

The Canadian Federation of Library Associations (CFLA) has published a statement that takes issue with misinformation that targets the library community with regards to the fair dealing exceptions in Canadian copyright legislation.

Fair dealing is an exception allowed under the Copyright Act. It allows use of limited portions of a copyright protected work without permission or payment of copyright royalties for purposes such as  research, private study, education, satire, parody, criticism, review or news reporting.

As the CFLA writes:

"Libraries purchase access to content including books, periodicals, and data and pay publishers hundreds of millions of dollars each year to provide students with digital access to these works. Libraries and librarians support education in colleges and universities across Canada and they support authors through their purchases."

"That important message is being drowned out by the barrage of accusations from author groups and publisher organizations that libraries are threatening the economic viability of authors. Nothing could be further from the truth."

"Those hundreds of millions of dollars in access and subscription fees, paid by libraries, should be going to authors of the licensed works. Copyright is not part of that transaction and tweaking the Copyright Act won’t change the economic plight of Canadian authors."

"The Copyright Act primarily protects the rights of authors and other rights holders. Some of these  rightsholders are complaining about a  sliver of balance which offers limited rights to the users of the works. Long included in legislation, and affirmed by our highest court, that sliver reflects the public interest in copyright – so that people, individuals, students, can make use of a work for a very limited number of purposes, including research, criticism, review, parody, education, and news reporting."

"For more than a decade, the education sector and their libraries have been the target of unfounded claims of harming authors’ incomes — despite being among the largest purchasers of Canadian literary works. These attacks center around changes to the Copyright Act in 2012, which added the term 'education' to the list of allowable purposes for fair dealing. The attackers also oppose the right of post-secondary institutions to manage their copyright obligations without a contractual intermediary that forces students to pay for the right to photocopy course materials they never use and to pay twice for course materials they do."

Study on Copyright Anxiety in the Canadian Higher Education Sector

Amanda Wakaruk, Copyright and Scholarly Communications Librarian at the University of Alberta, is helping to lead a study on the topic of Copyright Anxiety in the Canadian Higher Education Sector.

To participate, people can access an online survey. The survey closes on August 11, 2023:

"The aim of this research is to explore levels of copyright anxiety across the Canadian higher education sector, and determine the extent to which copyright law inhibits innovative research and teaching practice. The research will compare Canadian responses with those in the United Kingdom to investigate the extent to which legal and cultural differences impact copyright anxiety as a phenomenon."

"By completing this 26-question survey, you are consenting to participate in this study. This should take about 5-10 minutes. At any time during the study you can withdraw by simply closing the form before submitting your responses.  Submission of this survey will indicate your consent."

The research is being conducted in collaboration with City University of London and the University of Oxford.

There is more information available on the project website.

Blog Post on Copyright in Court Judgments

The blog of the International Association of Law Libraries has published an interesting post called Copyright in Court Judgments?

It looks at the copyright status of court judgments in a number of common law countries:

"At the High Court of Australia, we are often asked (usually by academics) about using the court’s judgments for various research purposes.  Even though these judgments are freely available on sites such as AustLII and JADE, academics often seek our permission before using them, because they believe the court holds the copyright over its judgments.  I was not sure if this was true, which caused me to research whether there is copyright in court judgments.  And if copyright applies, who holds the copyright?"

"The are no simple answers to these questions in Australia.  So, I decided to expand my research to other common law countries such the United States, the United Kingdom, New Zealand, and Canada.  Below is my preliminary attempt at comparing how court judgments are treated by copyright laws in these various jurisdictions.  First though, let’s start with a bit of history."

LawBytes Podcast on Proposed Federal Bill on Right to Repair

In the most recent LawBytes podcast, University of Ottawa law professor Michael Geist talks with Alissa Centivany and Anthony Rosborough about a private member's bill making its way through the House of Commons that would recognize the right to repair goods and appliances:

"The right to repair would seem like a political no-brainer: a policy designed to extend the life of devices and equipment and the ability to innovate for the benefit of consumers and the environment. Yet somehow copyright law has emerged as a barrier on that right, limiting access to repair guides and restricting the ability for everyone from farmers to video gamers to tinker with their systems. The government has pledged to address the issue and Bill C-244, a private members bill making its way through the House of Commons, would appear to be the way it plans to live up to that promise."

"Alissa Centivany, an assistant professor in the faculty of information and media studies at Western University and the principal investigator of a SSHRC-funded research project on the right to repair and Anthony Rosborough, who completing his doctoral thesis at the European University Institute in Florence and is set to take up a joint appointment in Law and Computer Science at Dalhousie University later this year, have been two of the most outspoken experts on this issue in Canada."

It is possible to follow the progress of the bill on the LEGISinfo website. 

Canadian Federation of Library Associations Spring 2023 Update

The Canadian Federation of Library Associations (CFLA) has published an update about its recent activities.

The Canadian Association of Law Libraries is a member of the Federation.

The update includes news about advocacy activities on behalf of the Canadian library community; cataloguing ethics; positions on copyright and artificial intelligence, Crown copyright, and controlled digital lending; challenged books; bursaries and scholarships; and more.

Canadian Federation of Library Associations Fall 2022 Update

The Canadian Federation of Library Associations (CLFA) has published an update about its recent activities.

The Canadian Association of Law Libraries is a member of the Federation.

The update includes news about advocacy activities on behalf of the Canadian library community, copyright reform, consultations relating to the 2023 federal budget, the release of residential school records, a new cataloguing code of ethics, the education of library technicians, and more

LawBytes Podcast on Recent Supreme Court of Canada Copyright Decision

In the most recent LawBytes podcast, University of Ottawa law professor Michael Geist talks with his colleague Jeremy de Beer about the July 15, 2022 Supreme Court of Canada decision Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30:

"The Supreme Court of Canada’s latest copyright decision – SOCAN v. Entertainment Software Association – affirms yet again that technological neutrality is a foundational element of the law and notably emphasizes that 'copyright law does not exist solely for the benefit of authors.' My colleague Jeremy de Beer was an active participant in the case, writing an expert opinion during the Copyright Board phase of the case which reflects the approach that the court ultimately adopted. He joins the Law Bytes podcast to discuss the evolution of music distribution online, this latest case and the court’s commitment to copyright balance, as well as what might come next in the seemingly never-ending battle over Canadian copyright law."

The  Canadian Association of Law Libraries was one of the interveners in the case.

The full decision is available online along with a plain language case summary prepared by the Court.

International Federation of Library Associations Report on Copyright Challenges During COVID-19

The International Federation of Library Associations (IFLA) has published a summary of its research report on copyright-related challenges during the COVID-19 pandemic:

"The report involved a survey of 114 libraries worldwide and 28 interviews during February and March 2022. Respondents were from 29 countries. The report was conducted with Electronic Information for Libraries (EIFL)."

"83% of responding library professionals said they had copyright-related challenges providing materials during pandemic-related facility closures. These intersected with ongoing challenges predating the pandemic, including budget pressures, external financial crises, difficult negotiations with publishers, and demand for eBooks that outpaces publisher offerings."

"While many publishers offered expanded access to services and content during the early months of the pandemic, these offers usually did not last for sufficient time for libraries to meaningfully integrate them into teaching and research activities. 69% of respondents who had challenges said these included issues providing access to textbooks, and 52% of libraries that had copyright challenges indicated challenges with providing access internationally, as students and faculty returned to their home countries. To access content digitally, some libraries made use of programs such as the HathiTrust’s Emergency Temporary Access project and ‘Resource-Sharing during COVID’ (RSCVD) (...)"

"Laws often leave gray zones which create uncertainty about how content can be shared. This points to the need for clarified legal protections for libraries and the services they offer."

 

Canadian Association of Law Libraries Intervention in Upcoming Supreme Court of Canada Copyright Case

The Canadian Association of Law Libraries (CALL) has been granted intervener status in the January 18, 2022 Supreme Court of Canada hearing in the case Supreme Court of Canada case Society of Composers, Authors and Music Publishers of Canada, et al. v. Entertainment Software Association, et al. 

CALL members Susannah Tredwell, Manager of Library Services at DLA Piper (Canada) LLP in Vancouver and James Bachmann, Instructional Librarian, Law Library, University of British Columbia, wrote a blog post about the case and CALL's copyright advocacy over the years:

"This case addresses the question of how the concepts of 'communication to the public by telecommunication' and 'making available on demand' as used in the Copyright Act should be understood."

"The outcome of this case has the potential to significantly impact various library activities, including controlled digital lending and possibly even the simple use of hyperlinks, particularly in light of the limited scope of current library and education exceptions in the Copyright Act."

"CALL/ACBD's submitted that the court refrain from broadly construing the terms 'making available' and 'Communication to the Public by Telecommunication' and that s. 2.4(1.1) of the act ('Communication to the public by telecommunication') does not need to be understood as creating a new right."

CALL has intervened in the past in front of the Supreme Court of Canada on issues pertaining to Crown copyright and fair dealing. 

Article on Measuring Copyright Anxiety

Amanda Wakaruk, Céline Gareau-Brennan, and Matthew Pietrosanu from the University of Alberta have published an article entitled Introducing the Copyright Anxiety Scale in the newest issue of  The Journal of Copyright in Education and Librarianship:

"Navigating copyright issues can be frustrating to the point of causing anxiety, potentially discouraging or inhibiting legitimate uses of copyright-protected materials. A lack of data about the extent and impact of these phenomena, known as copyright anxiety and copyright chill, respectively, motivated the authors to create the Copyright Anxiety Scale (CAS). This article provides an overview of the CAS’s development and validity testing. Results of an initial survey deployment drawing from a broad cross-section of respondents living in Canada and the United States (n = 521) establishes that the phenomenon of copyright anxiety is prevalent and likely associated with copyright chill."

From the conclusion:

"It is clear from the survey response data that copyright anxiety is a real phenomenon for many and has practical consequences that can impede creativity and potentially legitimate forms of sharing content. Given that more than a quarter of respondents indicated that they had abandoned projects due to copyright-related anxiety, it is fair to say that the phenomenon is in fact prevalent. This research found that a mixture of confusion, stress, and indecision based on questions surrounding copyright prevents users and creators of copyright-protected content from engaging in personal and educational activities that are unlikely to infringe copyright law. The development of CAS provides a useful tool for the analysis of these precursory and potentially causative factors of copyright chill. Given the high degree of internal consistency within the scale, we believe that it can be a useful tool for future observations and research. Over time, further development of the CAS could help provide a more in-depth picture of changing attitudes and understandings of users’ rights."

LawBytes Podcast Masterclass on Copyright and User Rights

In his 100th LawBytes podcast, University of Ottawa law professor Michael Geist talks to Osgoode Hall Law School Professor David Vaver about the history of copyright in Canada:

"The recipient of the Order of Canada, Professor Vaver provided the scholarly grounding for the emergence of user rights in copyright in Canada and around the world. In this episode, he gives a masterclass on the history of copyright, the emergence of user rights, Supreme Court copyright jurisprudence, and potential future copyright reforms."

Article on Access and Copyright Challenges for Canadian Libraries During COVID-19

The most recent issue of The Journal of Copyright in Education and Librarianship has published an article entitled 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."

Canadian Government Consultation on Copyright Framework for Online Intermediaries

The Canadian government has published a consultation document on the topic of copyright and online intermediaries. Intermediaries include Internet service providers, cloud storage services, web hosting services, social media and search engines:

"Canada's copyright framework establishes liability for intermediaries that infringe copyright or serve primarily to enable infringement by others. This liability is counterbalanced by certain protections, including "safe harbours" where intermediaries merely provide the technical means by which others infringe copyright by using the intermediaries' services. Some intermediaries are also subject to obligations to forward notices of claimed infringement received from copyright owners to the intermediaries' users. Recently, certain intermediaries have also been ordered by courts to disable access facilitated by the intermediaries' services to potentially infringing content or activities."

"This framework is the subject of mounting debate and study. Many rights holders have argued that it effectively diminishes their remuneration for uses of their content online and impairs their enforcement efforts. They have therefore argued in favour of modifying the safe harbour protections to incentivize public content-sharing services to pay rights holders equitably for uses of their content on those services' platforms. They have also advocated for imposing greater obligations on intermediaries to prevent or stop infringement. By contrast, many intermediaries and others have argued that Canada's laws sufficiently protect copyright online and intermediaries' current protections from liability and enforcement obligations promote an open Internet, advancements in online services and economic growth in Canada (...)"

"The Government is considering how best to respond to these trends and perspectives. Possible Government actions could be to:

• clarify intermediaries' safe harbour protections against liability for copyright infringement, including how intermediaries' knowledge of infringement and content-related activities affect their liability as well as their attendant obligations;
• compel remuneration of rights holders through collective licensing of their copyright-protected content on certain platforms;
• increase transparency in rights holders' remuneration and online uses of their content; and
• clarify or strengthen rights holders' enforcement tools against intermediaries, including by way of a statutory 'website-blocking' and 'de-indexing" regime."

Earlier this year, the governmment consulted on how to implement Canada’s commitment under the Canada-United States-Mexico Agreement to extend the general term of copyright protection. 

Another consultation on the intersection between copyright and artificial intelligence and the Internet of Things will be launched by summer 2021.

Comments may be e-mailed to copyright-consultation-droitdauteur@canada.ca until May 31, 2021.