Welcome to the CopyrightED blog!
This is where Copyright Service Librarian, Shelby Thaysen, explores copyright + higher EDucation (get it?) and provides relevant copyright-related updates and resources to the Centennial College Libraries and Learning Centres community.
70 is the new 50: Copyright Term Extension in Canada
Shelby Thaysen, Copyright Services Librarian
Amendments to the Copyright Act extending the term of copyright in Canada came into force on December 30, 2022. Prior to this date, copyright protections subsisted for 50 years after the year the creator died; now, that term has been extended to 70 years after the death of the creator. The 20 year extension is a result of commitments made in the latest Canada-United States-Mexico Agreement (CUSMA).
While the general term of copyright has changed to life plus 70 years, there are certain circumstances where this is not the case. The University of Alberta Copyright Office has created a useful flowchart to assist in determining whether a work is protected by copyright. In addition, the Canadian Association of Research Libraries (CARL) has put together a list of frequently asked questions about the term extension.
Upon the expiry of copyright protection, a work enters the public domain and restrictions on the use of the work are lifted. As a result of this extension there will be a considerable amount of time in Canada where very few works will enter the public domain. Works of prominent Canadians originally set to enter the public domain in 2023 have been cast into protection until 2043. For more information about the impact of the term extension see the further reading resources below.
For more information about copyright and the public domain visit the Copyright Guide or get in touch with the Centennial Libraries copyright team at copyright@centennialcollege.ca.
Further Reading:
Sheppard, A. (2022, December 122022). Reconsidering the copyright bargain: The impacts of the CUSMA term extension. The Quad. https://www.ualberta.ca/the-quad/2022/12/reconsidering-the-copyright-bargain-the-impacts-of-the-cusma-term-extension.html
Swartz, M. (2023, January 15). Interminable pause: Government must address harm caused by extension to copyright term. Toronto Star. https://www.thestar.com/opinion/contributors/2023/01/15/interminable-pause-government-must-address-harm-caused-by-extension-to-copyright-term.html
Zerkee, J. (2023, January 11). “A bizarre 20-year hiatus:” Changes to copyright term in Canada. Radical Access: The SFU Scholarly Publishing Blog. https://www.lib.sfu.ca/help/publish/scholarly-publishing/radical-access/changes-copyright-term-canada
References
Canadian Association of Research Libraries. (2023). Frequently asked questions about term extension for authored works. https://www.carl-abrc.ca/influencing-policy/copyright/frequently-asked-questions-about-term-extension-for-authored-works/
Centennial College Libraries. Copyright guide. https://libraryguides.centennialcollege.ca/copyright
University of Alberta Copyright Office. (2023). Canadian copyright term and public domain flowchart. https://www.ualberta.ca/faculty-and-staff/copyright/intro-to-copyright-law/licensed-royalty-free-content/pd-flowchart---types.html
CopyrightED: Supreme Court of Canada Confirms Access Copyright Tariffs Not Mandatory.
A win for a balanced approach to copyright in education!
Shelby Thaysen, Copyright Services Librarian
On July 30, 2021, the Supreme Court of Canada (SCC), in a unanimous decision, released its decision to dismiss both appeals brought forward from the decision at the Federal Court of Appeal. The case was heard on May 21, 2021.
The SCC rules that copyright tariffs proposed and certified through the Copyright Board, in this case by Access Copyright, are voluntary in nature. Users have a choice to accept a license. York is not required to pay the tariff.
In addition, the SCC stated that the case was not an infringement claim, since Access Copyright, not owning the copyright, cannot sue for infringement. Therefore, York's fair dealing guidelines were not addressed further. However, statements were included that further legitimize fair dealing for education and as an important user right.
This decision is encouraging for the balance of copyright for users, and education. It conveys the importance of choice for managing copyright at an institution, the rights of users, actualization of fair dealing, and the role of collective agencies in the licensing landscape.
In the months ahead there may be changes to institutional fair dealing guidelines based on general commentary from the court in the rendered decision. Any updates or changes will be likely be coordinated with CICAN and other educational institutions and communicated effectively to the college community.
Commentary & Further Reading:
Canadian Association of Research Libraries (CARL). (July 30, 2021) "CARL Applauds Supreme Court’s Copyright Ruling on the Application of Tariffs and Fair Dealing." (News Release).
Canadian Association of University Teachers (CAUT). (August 4, 2021). "Supreme Court ruling a victory for students and post-secondary education." (News Release).
Geist, M. (August 3, 2021). "Copyright Vindication: Supreme Court Confirms Access Copyright Tariff Not Mandatory, Lower Court Fair Dealing Analysis Was “Tainted”." Michael Geist (Blog Post).
Knopf, H. (August 3, 2021). "Victory and Vindication from Justice Abella and the Supreme Court of Canada for Canadian Educators." Excess Copyright (Blog Post)
Authors Alliance. (July 30, 2021). "Authors Alliance Applauds Today's Decision in Access Copyright v. York University." (News Release).
Lower Court Rulings:
Appeal (Federal Court of Appeal): York University v. Canadian Copyright Licensing Agency, 2020 FCA 77
Visit CopyrightED (3.1) for a summary of the appeal decision.
Judgement (Federal Court): Canadian Copyright Licensing Agency v. York University, 2017 FC 669
Need more context? Read on.
This case has been a nearly decade-long issue beginning in 2010 when Access Copyright proposed a much higher tariff rate for post-secondary educational institutions. After operating for a short time on a certified interim tariff rate, many colleges and universities stopped operating under Access Copyright's tariff license and fulfilled copyright obligations through various legal means, paid and unpaid. For example, permissions, transactional licensing, library licensing, open licenses and fair dealing.
In 2013, Access Copyright brought suit against York University for payment of the tariff and infringement, and York University counter-claimed, mentioning their fair dealing guidelines. The mandatory nature of the tariff had been uncertain in the pending legal proceedings ever since.
Not only that, the rate of the tariff itself was uncertain for many years. The Copyright Board took nearly 10 years to certify the proposed tariffs brought by Access Copyright to the Board for years 2011-2017. The Copyright Board certified said rate in December 2019, whereby then colleges and universities whom agreed to operate under the interim tariff then owed the difference.
Thereafter, where a party does not accept the tariff, it has now been affirmed by this ruling that payment of the tariff rate to Access Copyright is not mandatory. Institutions may fulfill their copyright obligations through avenues of their choosing.
Educational institutions and associations are applauding the decision. In a recent memo College and Institutes Canada (CICAN) expressed that they are also pleased with the ruling and recognize that this is a positive outcome for colleges and institutes.
Timeline:
CopyrightED: Access Copyright Tariffs Not Mandatory
Shelby Thaysen, Copyright Services Librarian
On April 22, 2020, the Federal Court of Appeal released its decision in the York University v. The Canadian Copyright Licensing Agency (Access Copyright) appeal.
Educational institutions and associations are praising the positive outcome regarding the tariffs and reflecting on the dismissed fair dealing guideline decision.
The Decision
Most importantly, the Court clearly ruled that Access Copyright’s Copyright Board tariffs are not mandatory.
This means institutions are not obligated to pay Access Copyright tariffs approved by the Copyright Board of Canada. This is a significant and positive outcome, ensuring that we can choose an approach to compliance through various paid and unpaid legal means including licensing, open access materials, transactional licences, and fair dealing.
This ruling also confirms that “Access Copyright cannot maintain a copyright infringement action” (para. 206). This means that Access cannot sue for copyright infringement as a collective on behalf of copyright holders. This is a positive distinction as well.
Unfortunately, this decision dismissed York’s counterclaim regarding the application of fair dealing guidelines. The Court found that York had not adequately demonstrated that the application of the guidelines ensured fair copying. Two factors of the fair dealing analysis, in particular, the purpose and amount of copying, are at the centre of concern here.
Both parties have 60 days from the date of the decision to make an appeal, which would take the case to the Supreme Court of Canada.
A Balancing Act
This ruling comes at a time when Fair Dealing is being strongly advocated for as a vital user's right for libraries and educational institutions across the country (and the world) during COVID-19. Read CFLA's recent statement here.
Further Reading & Commentary:
CARL & CFLA, (April 22, 2020). Access Copyright Tariffs Confirmed Not Mandatory: A Positive Outcome for Universities and their Libraries. CARL & CFLA [News Release] Retrieved from: http://www.carl-abrc.ca/wp-content/uploads/2020/04/Access-Copyright-Tariffs-Confirmed-Not-Mandatory_EN.pdf
Knopf, H. (April 22, 2020). Access Copyright v York University: York Wins re "Mandatory Tariff" and Loses re Fair Dealing Guidelines. Excess Copyright [Professional Blog]. Retrieved from: http://excesscopyright.blogspot.com/2020/04/access-copyright-v-york-university.html (Decision and Reason Documents from the Court can be found here).
Geist, M. (April 23, 2020). Federal Court of Appeal Deals Access Copyright Huge Blow As It Overturns York University Copyright Decision. Michael Geist [Professional Blog]. Retrieved from: http://www.michaelgeist.ca/2020/04/federal-court-of-appeal-deals-access-copyright-huge-blow-as-it-overturns-york-university-copyright-decision/
Sheppard, A. (April 30, 2020). The York Appeal and Fair Dealing Guidelines. The Quad [Institutional Blog]. Retrieved from: https://blog.ualberta.ca/the-york-appeal-and-fair-dealing-guidelines-f6739fefe940
York University (May 5, 2020). York University statement on recent court decision regarding Access Copyright. York University [News Release]. Retrieved from: https://news.yorku.ca/2020/05/05/york-university-statement-on-recent-court-decision-regarding-access-copyright/
CopyrightEd: February is about Fair Dealing
Shelby Thaysen, Copyright Services Librarian
February 25th to March 1st, 2019 is Fair Dealing Week!
Fair Dealing, or what is known as Fair Use in the United States, is a user’s right and is an exception to the copyrights granted to creators by the Copyright Act. Fair Dealing allows users can copy, or reproduce, short excerpts of copyright-protected works for various reasons: education, private study, research, criticism, review, reporting, parody and satire.
Fair Dealing is worth celebrating! For Canada it has been a wild ride to ensure user's rights are maintained in the law. Without it, a lot of the work we do in the library and for the college, and the experiences of teachers and learners, would be greatly hindered. Take a look at some of these resources to get you thinking about the importance of Fair Dealing.
Resources:
Fair Dealing Myths and Facts (A one-pager made by CARL)
Student Life without Fair Dealing (A Prezi made by Ann Ludbrook, Ryerson University)
Fair Dealing Assessment Tool (An interactive tool made by The Learning Portal; Seneca College)
Stay tuned for Fair Dealing week at the end of the month.
Remember, determining the fairness of the use of a work is always done on a case-by-case basis. If you need assistance feel free to contact the copyright office.
CopyrightED: Updates and Reflections on the Public Domain (1.1)
Welcome to the first issue of CopyrightED! This is where I will explore copyright + higher EDucation (get it?) and provide relevant copyright-related updates and resources to the Centennial College Libraries and Learning Centres community.
Shelby Thaysen, Copyright Services Librarian
Join me as I reflect upon my field trip downtown on Friday, November 23 to attend the OLA Copyright Symposium at Ryerson University Library. The theme of the symposium this year was: “The Public Domain: Now A Private Affair?” You can follow up on the day’s discussion using the Twitter hashtag, #COPY18.
In this post, I’ll summarize my takeaways from keynote speaker Dr. Carys Craig’s in-depth theoretical overview of the Public Domain in Canada. Then I will highlight some public domain resources you may find interesting. Lastly, I will point to current events in the copyright world today. Feel free to reach out and discuss these ideas and resources with me further - I look forward to meeting you all.
In the keynote session, Dr. Craig was sure to ask: What is the public domain? In answering this question she delved into the history and common assumptions about the public domain in Canada.
There are two key points that resonated with me from this session.
1. The public domain is a concept. It is a metaphor of a public commons where knowledge can be shared and used freely. It consists of more than non-copyrighted works, or works where copyright has expired. The public domain includes facts, information, ideas in abstractions, math functions, common sense, and parts of works that are non-copyrightable to begin with.
2. The public domain is necessary for maintaining the copyright balance and must be protected. This theme was echoed throughout the day. I found it interesting that while most people think of the public domain as copyright’s “other,” Dr. Craig highlighted that the public domain should be the default. The public domain existed before copyright did, but it wasn’t named.
Fostering an Affirmative Discourse
In an attempt to reframe the public domain as a positive discourse, attendees at the symposium were challenged to change their vocabulary when discussing the public domain. Instead of saying that a copyright-protected work “falls” into the public domain, which indicates that the public domain is a lower place where works go when they are no longer relevant, attendees began using phrases such as “ascend” and “enter.” When a copyright-protected work “ascends” into the public domain the impression is more positive and indicates that the work is available as a public good, available to use and create other works from. This reflexive thinking and practice allowed us to frame productive goals and fueled discussions throughout the day.
This positive reframing is meant to contribute to the protection of the public domain from Intellectual Property (IP) creep. What is IP creep? It is when concepts that are not things become “ thingified” and treated as property under the law. Think about the propertization of “smell.” How can a smell be treated as property the same way a car or a house can? IP creep is the creation of intellectual property for protection under copyright for the purposes of commodification. When more categories of intellectual property are created the public domain respectively shrinks.
What now?
First, we must protect the public domain by maintaining a positive discourse around its purpose as a public good. You can celebrate Public Domain Day on January 1st.
Second, highlight what is public domain with rights statements to liberate works and allow the sharing of works by the public. Marking works as being in the public domain with rights statements, such as Creative Commons 0 or the Public Domain Mark, will inform users about what their usage rights for public domain works are. Remember, the lack of a license does not mean that a work can be reused. In fact, the lack of a license, or rights statement, often makes it more cumbersome to gain access since a rightsholder would need to be consulted. Labelling public domain works with internationally recognized licenses allows users to easily access and reuse works in the public domain.
Moving forward, Dr. Craig suggested that we consider not what the public domain is now, but what we need it to be.
Further reading from Dr. Craig:
Resources you may find interesting:
Happening now in copyright…
The International Federation of Library Associations and Institutions (IFLA) is attending the World Intellectual Property Organisation (WIPO) Standing Committee on Copyright and Related Rights meeting in Geneva, Switzerland Nov 26-30, 2018 to advocate for better copyright laws. An item on the agenda is “Discussing Limitations and exceptions for libraries and archives”
CopyrightEd by Shelby Thaysen is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
