SUBMISSION. A CONSULTATION ON HOW TO IMPLEMENT AN EXTENDED GENERAL TERM OF COPYRIGHT PROTECTION IN CANADA. Peter D James. Librarian emeritus. University of British Columbia. Introduction: This submission to A consultation on how to implement an extended general term of copyright protection in Canada, concentrates on the use of orphan works by non-commercial public bodies. Following discussion on the introduction of formalities and the public domain, it addresses orphan works regimes in other countries, the centrality of diligent search, the operation of the Unlocatable Copyright Owners regime in Canada and suggests some proposals that are offered in the hope of increasing use of the scheme by public bodies. Term Extension: Canada’s adoption of the extended term serves to adhere to the terms of the CUSMA/USMCA treaty, brings Canada into line with current international thinking on the appropriate term of protection, and benefits creators of works. By adopting the well-recognised term of life plus 70 years, Canada joins a progressive community of nations in protecting the works of creators. Registration for last 20 years of Term Extension: The re-introduction of formalities in Canadian copyright is an unnecessary step. Canadians can read, cite, or re-create works through the exceptions to infringement (fair dealing, re-production for private purposes, non-commercial user-generated content, education, library and archives exceptions etc) set out in Part III of the Copyright Act.1 Should Canadians seek to re-issue copyrighted works, they can negotiate a reproduction agreement with the copyright owner or utilise various licensing schemes with collective societies. Finally, Canada has a regime, Unlocatable Copyright Owners (UCO), for making works available to the general public where a copyright holder cannot be identified or located. A copyright registration requirement is termed a ‘formality’ and introducing one for the enhanced twenty-year period of protection, effectively nullifies the term extension. 2 Article 5(2) of the Berne convention states the enjoyment of copyright shall not be subject to any formality and early revisions of the Berne Convention successively did away with such formalities.3 As Sara Bannerman notes, the removal of formalities was the “most significant change from a Canadian perspective”, including the end of “registration of a work in a central registrar.” 4 Canada’s re-adoption of registration will undermine its commitment to Berne and to the protection of creators’ rights. Adoption will penalise small copyright owners and inheritors of ownership, who may lack knowledge of the requirement or the procedure for seeking to assert their rights, and so see them 1 Copyright Act. RSC 1985 c. 42. https://laws-lois.justice.gc.ca/eng/acts/c-42/page-8.html#docCont 2 Michael Geist. “Making the best of a bad provision: why Canada should work towards a copyright term extension copyright requirement.” https://www.michaelgeist.ca/2019/12/making-the-best-of-a-bad-provision-why-canada- should-work-toward-a-copyright-term-extension-registration-requirement/. 3 “The no-formalities rule thus fundamentally undergirds the Berne Convention system of universal international authors’ rights”. Jane C Ginsburg, “Berne-forbidden Formalities and Mass Digitization,” Boston University Law Review 96 (2016): 750. Ginsburg notes that countries are free to apply such a formality to national authors, but may not be able to do so with foreign authors. See discussion on pages 770-772. 4 Sara Bannerman. The struggle for Canadian Copyright: Imperialism to internationalism, 1842-1971. (UBC Press, 2013): 65. vanish. In short, promotion of registration should be seen for what it is: an attempt to prematurely strip away copyright protection, undermine the spirit of USMCA compliance, and thereby seek to exploit the ‘released’ works. 5 The Public Domain: Some6 advocating the introduction of registration for the final twenty years of protection, cite remarks by the former US Register of Copyrights, Maria Pallante, suggesting s similar requirement for the US Act.7 Her thoughts were in part based on a US Copyright Office study of copyright renewals (1961) that stated only 7% of books copyrighted in the period 1932-1961 had their copyright renewed after the initial 28-year term, thereby throwing 93% of the books into the public domain. A CRMS group at University of Michigan recently raised doubts about this conclusion, and identify the number of PD works for the period as closer to 50%. It noted that much of the content collected by research libraries included works published outside the US and not registered in a timely manner: the works were subsequently returned to protection under US legislation, further confusing the true volume of PD works.8 Assumptions about the size of the public domain are not confined to a Library of Congress report or even to the United States. A Europeana study on copyright declarations for works housed in member institutions found a great discrepancy between the copyright status of the works and the copyright declarations. The review identified accurate rights statements only 62% of the time. 9 The assignment of copyright status by member institutions was problematic: the application of a Public Domain status 5 See Howard Knopf’s evidence presented to the INDU review of the Copyright Act: It's going to enter the dreaded category of what we call “orphan works” where somebody owns a copyright but nobody knows who or where to find them. We need to get into the public domain as soon as possible. That's why I'm suggesting the imposition of formalities for that final term of 20 years. Canada. Standing Committee on Industry, Science and Technology INDU ● Meeting Number 140 ● 1st Session ● 42nd Parliament Evidence. November 28, 2018 6 Howard Knopf, ‘Let’s Listen to the Former American Register of Copyrights about How to Deal with the Last 20 Years of the Extended Life + 70 Copyright Term.’ Excess Copyright, March 02, 2021. http://excesscopyright.blogspot.com/2021/03/lets-listen-to-former-american-register.html 7 Maria Pallante, ‘The curious case copyright formalities,’ Berkeley Technology Law Journal 28 (2013) at 1419: ”… we wonder whether Congress could shift the burden of the last twenty years of protection (the Berne-plus years) from the user to the copyright owner, so that at least near the end of the term, the copyright owner would have to file with the Copyright Office as a condition of continued protection. Otherwise, the work would enter the public domain”. It should be noted that this proposal was never acted upon By Pallante or the government. 8 John P Wilkin. “How large is the Public Domain: A comparative analysis of Ringer’s 1961 Copyright Renewal Study and HathiTrust CRMS Data. College & Research Libraries 78. 2. (February 2017): 201-218. https://crl.acrl.org/index.php/crl/article/view/16582. From the abstract: … demonstrates fundamental misunderstandings and misrepresentations of the Ringer data, as well as possible methodological issues. Estimates of the size of the corpus of public domain books published in the United States from 1923 through 1963 have been inflated by problematic assumptions… 9 Judith Blijden. The accuracy of rights statements on europeana.eu. (Amsterdam: Kennisland 2018): 15. Commenting on the remaining assignments, the study found 9% were clearly inaccurate, the remaining 29% were either too poorly constructed, or of questionable accuracy to arrive at a determination. The report also notes that institutions in some European jurisdictions assign a licence to digitised PD works as a neighbouring right. See Margoni. Digitising the Public Domain: Non-Original Photographs in Comparative EU Copyright Law. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3108760 . was correct in only 50% of the cases.10 When looking at a rights statement with a PDM statement, users are as likely to encounter an accurate rights statement as they are to encounter a possibly inaccurate rights statement. Because of Europeana’s policy of promoting the possibility to reuse these results are especially alarming.” 11 The authors identified a lack of training, misunderstanding of copyright and a need for periodic reviews of assigned statements to ensure compliance with copyright revisions key to resolving the problem. Orphan Works: Some of the identified problems with Public Domain declarations could arise in a rush to identify and re- issue supposed ‘orphan works’. At the centre of all orphan works regimes is a respect for the rights of copyright holders. All require a search for a copyright owner and upon discovery, a requirement to seek a use licence. The European Orphan Works Directive (EU OWD) is clear on this point: Article 5 of the Directive, ‘End of Orphan status’ states: Member States shall ensure that a rightsholder in a work or phonogram considered to be an orphan work has, at any time, the possibility of putting an end to the orphan work status in so far as his rights are concerned. 12 A common element of the orphan works legislation is an exemption from copyright’s remedies for public bodies in compliance with regulatory requirements. The various schemes’ exceptions operate in different ways. The Canadian and UK13 schemes provide a non-exclusive licence issued by a government agency upon approval of a vetted application from the user. The EU OWD scheme permits use upon completion of an uncontested diligent search and submission of documentation to the OW Database. 14 Proposed Australian15 and US16 schemes also permit use without need of a licence, but they require the public body engage a returned owner in licence negotiations or remove the content from the website. 10 Blijden. 17 11 Ibid. 18 12 Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32012L0028.