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Canadian Copyright Reform– Maintaining Copyright’s Legitimacy and Credibility for the 21st Century

Pascale Chapdelaine Chair, Windsor Law LTEC Lab Associate Professor, University of Windsor, Faculty of Law

Professors Pascale Chapdelaine and Myra Tawfik, and nine other Canadian intellectual property scholars [1] recently co-signed a brief submitted to the Standing Committee on Industry, Science and Technology in the context of the Statutory Review of the Copyright Act. [2] Animated by guiding principles of the need to maintain a balanced, distinctly Canadian copyright system, and to steer clear of “copyright exceptionalism,” the brief contains several recommendations of amendments to the Act. Here are excerpts from the brief and a summary of its key elements.

Moving away from “copyright exceptionalism” entails that “the Act must comply with the Canadian Charter of Rights and Freedoms, and that the restrictions it imposes on freedom of expression must be demonstrably justifiable. Also, copyright law needs to be, as much as possible, consistent with the law of (personal) property, contracts, remedies, competition law, etc.”  This may state the obvious. However recent developments in copyright law, including the introduction of technological protection measures granting additional legal protection to digital works, have obscured this important consideration. As such, “Canada should resist calls to import copyright reform proposals from other jurisdictions (e.g. the creation of additional rights for newspaper publishers being debated in the European Union), without careful consideration as to whether, and the extent to which, these proposals comply and are consistent with Canadian law.”

While acknowledging that new obligations undertaken by Canada under the new USMCA may limit the range of policy options available in certain respects such as, e.g., term extension of copyright, the Committee “should use the flexibilities built into Canada’s international agreements to minimize the impact of such external pressures and to prioritize Canadian interests and domestic policy goals to the extent possible.”

Process of consultation with Indigenous peoples

Among the recommendations made, the co-signatories underscore the need to initiate a long overdue process of consultation with Indigenous Peoples toward the suitable recognition and protection of Indigenous traditional cultural expressions, reminding the Committee of Canada’s obligations under the United Nations Declaration on the Rights of Indigenous Peoples, specifically article 31.

Copyright User Rights

The brief contains several recommendations toward solidifying the scope of users’ rights to copyright works including:  

•      Substituting fair dealing provisions with fair-use style provisions, as it would bring more flexibility to the Canadian copyright system and as new technologies continue to emerge;

•      Confirming there shall be no contracting out of exceptions to copyright infringement in non-negotiated standard form agreements (and a presumption of non-enforceability of contract-out clauses in negotiated agreements);

•     That anti-circumvention technological protection measures (TPMs) should not override user rights;

•     That copyright users’ remedies be specifically recognized when users are improperly restrained in making legitimate uses of copyright works, and the introduction of new administrative oversight of copyright owners’ business practices and increasing use of algorithms and AI as copyright self-enforcement mechanisms.

Other recommendations:

•     Resisting pressures toward the introduction of 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;

•     Adding a provision in the Act that would facilitate open access of publicly funded scientific publications;

•     Maintaining the status quo with respect to authorship and ownership requirements of works created by artificial intelligence, i.e. that the requirement of exercise of skill and judgment by a physical person be maintained for works created with the aid of AI to receive copyright protection; and

•     Safeguarding the practice of text and data mining through e.g., the creation of a separate exception to copyright infringement.

Some of the signatories to the brief will appear before the Committee in the next weeks to elaborate further on the recommendations made in the brief.

For more information, the full version of the brief is available here.


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