Tag Archives: Canada

Marrakesh Treaty for the Blind, Visually Impaired and Print Disabled to Enter Into Force

Today, June 30, 2016, the Marrakesh Treaty to Facilitate Access for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled Reached its 20th ratification and will enter into force on September 30, 2016.

Yesterday, WIPO received the ratification documents from Ecuador and Guatemala and today Canada deposited its instrument of accession to the Marrakesh Treaty.  With these three ratifications, the treaty now has twenty ratifications and countries from nearly every region have ratified including: ArgentinaAustraliaBrazil, ChileEl Salvador, India, Israel, Mali, MexicoMongolia, North Korea, Paraguay,PeruSingapore, South Korea, the United Arab Emirates and Uruguay.  The twentieth ratification of the Marrakesh Treaty occurred just over three years from when WIPO concluded the diplomatic conference and adopted the treaty.

The Marrakesh Treaty sets forth minimum standards for limitations and exceptions to facilitate access to accessible format works.  It would also permit cross-border sharing of these accessible formats, allowing countries to avoid unnecessary duplication of efforts and resources in the creation of these accessible works.  Additionally, the Treaty would facilitate importation of works created in other languages.

WIPO’s press release on this historic moment is available here.

 

Canada Introduces Legislation Preparing for Accession to the Marrakesh Treaty (Take Two)

In June 2015, proposed amendments to Canada’s Copyright Act were introduced in the House of Commons. These amendments, contained in Bill C-65, the Support for Canadians with Print Disabilities Act, were designed to amend the Copyright Act in order to prepare for implementation of and accession to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (“Marrakesh Treaty”), but was not acted on before the elections.

On March 24, 2016, Bill C-11, An Act to Amend the Copyright Act (access to copyrighted works or other subject-matter for persons with perceptual disabilities) was introduced.  This bill would likewise prepare for implementation and accession.  The Canadian government previously noted that accession to the Marrakesh Treaty would benefit the approximately 1 million blind or visually impaired Canadians.

Under Canada’s Copyright Act, Article 32 provides a limitation to allow for the creation and distribution of accessible format works for those with disabilities. The current provision broadly permits the creation of an accessible work for persons with a perceptual disability. It does not, however, permit the creation of a large print book. The current exception applies only where an accessible format is not commercially available. A non-profit organization may export an accessible format copy, but only where the author of the work is a Canadian citizen or permanent resident or a citizen or permanent resident of the country to which the copy is being sent. Copies may not be exported where the organization knows or has reasonable grounds to know that an accessible format is available in that country within a reasonable time and for a reasonable price. Royalties are owed by the organization making or sending the accessible format copy. The current copyright law also has an exception to the prohibition against circumvention of technological protection measures, but only where it does not “unduly impair” the technological protection measure.

Bill C-61 makes several changes to Article 32. One of the most significant changes is that it removes the prohibition on the creation of large print format as an accessible copy. Large print is an important type of accessible format because many of those who are visually impaired do not require audio formats or may not read Braille. For example, with age, individuals often require larger print. The Marrakesh Treaty broadly defines an “accessible format copy” and the removal of the prohibition against large print in Article 32, complies with the Treaty and will greatly benefit an aging population.

Another key change would allow the sending of accessible formats to other countries, regardless of the nationality of the authors of the works. Bill C-11 allows for the export of accessible format works to both Marrakesh Treaty countries as well as non-Marrakesh Treaty countries. It would allow for injunctions, but not damages, where the accessible format was exported to a country where it was commercially available within a reasonable time, for a reasonable price and located with reasonable effort. Where a work is exported to a Marrakesh Treaty country, the owner of the copyright bears the burden of demonstrating commercial availability. Where a work is exported to a non-Marrakesh Treaty country, the non-profit organization must also show that it had reasonable grounds to believe that it was not commercially available.

In most other areas (with the exception of language on circumvention of technological measures), changes were not made to the existing exception that allows the creation and distribution of accessible format works.

Introduction of Bill C-11 in Canada is a first step in acceding to the Marrakesh Treaty. The Marrakesh Treaty currently has 16 ratifications and will need 4 more for entry into force. In the United States, the Administration sent the Treaty for ratification along with implementing legislation in February of this year.

 

Four More Marrakesh Treaty Ratifications Needed For Entry Into Force

At last check-in in December, thirteen countries had ratified the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.  Today, that number stands at sixteen, with the recent ratifications of Israel, North Korea and Peru.  AustraliaArgentina, BrazilEl Salvador, India, Mali, MexicoMongolia, Paraguay, Singapore, South Korea, the United Arab Emirates and Uruguay ratified the treaty previously.  The Marrakesh Treaty needs twenty ratifications to enter into force and will, in all likelihood, reach this threshold this year with several countries reportedly close to ratification.

The Marrakesh Treaty sets forth minimum standards for limitations and exceptions to facilitate access to accessible format works.  It would also permit cross-border sharing of these accessible formats, allowing countries to avoid unnecessary duplication of efforts and resources in the creation of these accessible works.  Additionally, the Treaty would facilitate importation of works created in other languages.

Bill C-65 in Canada was introduced in June in preparation for accession to the Marrakesh Treaty, but has not been voted on.  The Obama Administration sent the Marrakesh Treaty to the U.S. Senate in February of this year, though it has not yet been scheduled for a hearing or vote.

Canada’s Copyright Board Finds Most Educational Copying is Fair Dealing

*This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.  

Today’s post is by guest blogger, Wanda Noel, a Canadian lawyer with a practice focused exclusively on copyright. Noel was legal counsel in three recent Supreme Court of Canada and Canadian Copyright Board decisions interpreting the fair dealing provision in the Canadian Copyright Act, including acting as counsel to the objectors in this matter.* 

On February 19, 2016, the Canadian Copyright Board issued a decision setting the Access Copyright Elementary and Secondary School Tariff, 2010-15. With its decision, the Copyright Board set a tariff rate of $2.46 for 2010-2012 and $2.41 for 2013-2015 per full time equivalent student per year to copy print materials such as books, magazines and newspapers.

The announced tariff rate is substantially lower than the per-student rates requested by Access Copyright, a copyright collective representing educational publishers and authors. Access Copyright initially requested rates of $15.00 for the years 2010-12 and $9.50 for the years 2013-15. These rates were a significant increase over the prior rate of $4.81 set by the Copyright Board in 2009. The Copyright Consortium of the Council of Ministers of Education, Canada (CMEC), representing the ministers of education in every Canadian province and territory, except Quebec, and the school boards of Ontario objected to the proposed Access Copyright rates and requested much lower rates.

This Copyright Board decision is the first application of fair dealing in educational institutions since two significant events in 2012 altered the copyright landscape in Canada. First, the Copyright Act was amended to add “education” as a new purpose in the fair dealing provision. Second, the Supreme Court of Canada issued a landmark decision interpreting fair dealing to permit teachers to copy and use short excerpts from published works for students in their classes.

The Board attributed the decrease from the prior rate of $4.81 to the decision of the Supreme Court of Canada in Alberta v. Access Copyright, [2012 SCC 37.] That decision established that copying short excerpts of copyright-protected works for student instruction, assignments or class work did not require royalty payments because the copying was fair dealing. This conclusion resulted in the Board’s finding that a significant proportion of copying by elementary and secondary schools was fair under the fair dealing provisions of the Copyright Act. Based on data available from a large-scale copying study in Canadian schools, the Board found that 97.2% of copying from books, 98.1% of newspapers and 98.5% from periodicals was fair dealing. This large volume of copying therefore did not require a licence from the owner of the copyright.

The royalty payments of $2.46 and $2.41 set by the Board relate primarily to the copying of consumables. Consumables are works that are intended for one-time use and contain a statement that copying is not permitted. An example is a workbook with questions and answer sheets to be completed by students. The Board found that none of the dealings with consumables were fair. Over three quarters (79% for 2010-2012, and 81% for 2013-2015) of the tariff value is attributable to consumables.

This Copyright Board decision is noteworthy because of the Board’s findings relating to fair dealing. For a dealing to be fair, two tests established by the Supreme Court of Canada in 2004 in CCH v. Law Society of Upper Canada 1 SCR 339 must be met. First, the dealing must be for one of the purposes set out in the Copyright Act. The Board found that the vast majority of copies being considered passed the first test because they were made for one of the following purposes captured by the copying study: research, criticism, review, future reference, private study or student instruction. Only copies made for entertainment and administration did not pass the first test.

The second test is that the dealing must be fair. To determine fairness, the Board applied six fairness factors established by the Supreme Court of Canada in its CCH decision: purpose of the dealing, amount of the dealing, character of the dealing, nature of the work, alternatives to the dealing, and effect of the dealing. These six factors were applied separately to books, newspapers, periodicals and consumables. The Board’s fairness analysis for consumables differed from the other genres particularly on the factors of the nature of the work and alternatives to the dealing.

The Copyright Board also accepted the position of the CMEC Copyright Consortium with respect to several issues besides fair dealing, including the fact that significant amounts of copying are not substantial (and therefore do not trigger any royalty payments under the Copyright Act), the limited nature of Access Copyright’s repertoire, and Access Copyright’s inability to adequately licence the copying of sheet music.

The present Copyright Board’s decision follows another recent tariff decision relating to Access Copyright issued in May of 2015 covering copying by provincial and territorial government employees, where a number of the legal issues were similar. Access Copyright had sought rates as high as $24 per full-time employee, but the highest rate certified was only $0.49. This government tariff decision is currently the subject of a judicial review application in the Federal Court of Appeal brought by Access Copyright.

Analysis of the Final TPP (Leaked) Text on Intellectual Property: Mixed Results

*This post is also available as an issue brief here*

On October 5, 2015, the twelve trade ministers of the TPP negotiating parties (Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States) announced that they had come to an agreement on the large regional trade agreement that had been under negotiations for the past five years.

While the agreement has been criticized for a number of reasons, it is important to recognize the areas where the agreement has improved from the initial proposals made by the United States in February 2011. Civil society, technology companies and academics have participated throughout the negotiating process to improve the language of the final text and many of these efforts are reflected in the agreement.

Of course, one of the main points of criticism regarding the TPP was the lack of transparency; without the various leaks of the intellectual property chapter throughout the course of the negotiations, substantive debate, criticism and proposed alternatives may not have been possible. It is worth noting that the agreement was signed by the trade ministers of the twelve negotiating parties in Atlanta, GA without a single official release of any chapter of the TPP. Notably, when international agreements are negotiated in multilateral fora such as at the World Intellectual Property Organization (WIPO), the negotiations are much more transparent and stakeholders have the opportunity to view and substantively comment on the proposals.  Even today, the final text has not been officially released, though Wikileaks has released a leaked copy of the final agreement’s intellectual property chapter.

Improvements in the Text

The final text of the TPP saw improvement in several areas, including the removal of certain provisions.

Removal of the Ban on Parallel Importation

The United States’ initial proposal included a ban on parallel importation, granting authors “the right to authorize or prohibit the importation into that Party’s territory of copies of the work, performance or phonogram made without authorization, or made outside the Party’s territory with the authorization of the author, performer, or producer of the phonogram.” This proposal would have prohibited parallel importation, limiting the application of the first sale doctrine to authorized copies made within the Party’s territory. Thus, a legitimate copy made in another country could not be sold in the United States without the author’s consent.

This proposal was controversial at the time it was introduced as other negotiating parties strongly rely on parallel importation of works. Additionally, during this time a high-profile court case, Kirtsaeng v. John Wiley & Sons, involving this very issue was making its way through the court system ultimately ending up before the Supreme Court of the United States. In that case, an individual purchased lawfully made textbooks in Thailand, where they were less expensive, and resold them in the United States.

In March 2013, the Supreme Court ruled that the first sale doctrine applies to lawful copies regardless of their place of manufacture. This ruling clarified that United States law does indeed allow for parallel importation, thus conflicting with the United States’ proposal. Despite this ruling, it took many months and several negotiating rounds for the United States to remove its language banning parallel importation. Ultimately, though, this prohibition was removed and is not in the final text of the agreement.

Removal of Language on Temporary Reproductions

Another area of controversy surrounding the United States’ proposal centered around language granting authors the right to authorize or prohibit reproductions “in any manner or form, permanent or temporary (including temporary storage in electronic form).” Many criticized the inclusion of temporary reproductions, particularly the clarification that it applied to “temporary storage in electronic form” as potentially prohibiting the temporary copies that are constantly made by a computer to read e-mails, store documents, access content, etc. Reference to “temporary reproductions” and “temporary storage in electronic form” is not in the final text, another helpful improvement in the text.

Removal of the Ban on Formalities

The October 2014 leak of the IP chapter, which reflected the state of negotiations as of May 2014, revealed that parties had agreed to new language banning formalities that did not appear in prior leaks. ARL criticized this development noting

This language could be problematic if the United States, or other TPP parties, wanted to re-introduce formalities for copyright protections granted that go beyond minimum international standards. Register of Copyrights Maria Pallante, for example, proposed the re-introduction of formalities for the last twenty years of copyright protection in the United States. If adopted, such a proposal would violate the TPP and subject the United States to investor-state dispute settlement, under which a corporation could sue the Unites States government for failure to comply with the TPP.

However, the August 2015 leak, reflecting the state of negotiations as of May 2015, as well as the final leaked text show that the text was ultimately removed. The removal of this language was a welcome improvement, preserving the ability to re-introduce formalities for protections granted under the TPP that go beyond minimum international standards set by the Berne Convention or TRIPS.

Improvements on Technological Protection Measures

The United States’ initial proposal on technological protection measures (TPMs) included detailed language, including a closed-list set of limitations and exceptions to the anti-circumvention rules. In addition to the very limited set of exceptions, the proposal would have allowed countries to use a three-year rulemaking process, modeled after the Digital Millennium Copyright Act (DMCA) 1201 rulemaking process, to create additional limitations and exceptions subject to a “substantial evidence” burden. This proposal would not have permitted new permanent limitations and exceptions to the anti-circumvention rules and was heavily criticized, particularly as certain events, such as the Register’s refusal to renew an exemption in 2012 to allow for the unlocking of cell phones, highlighted the absurdity of the process.

The 2014 leak and the final text of the agreement reveal that parties have removed the closed list of limitations and exceptions as well as the rulemaking process. Instead, the text allows parties to provide for limitations and exceptions and to use legislative, regulatory or administrative processes to create exceptions. This language would permit the creation of new permanent limitations and exceptions.

Furthermore, while the language still provides that a violation of the anti-circumvention rules “is independent of any infringement that might occur under the Party’s law on copyright and related rights,” this text could be mitigated by a helpful footnote that reads “A Party may provide that the obligations described in paragraph (ii) with respect to manufacturing, importation, and distribution apply only where such activities are undertaken for sale or rental, or where such activities prejudice the interests of the right holder of the copyright or related right.”

The fact that the United States’ initial proposal in 2011 made circumvention a “separate and independent cause of action” was controversial and makes little sense. Establishing that circumvention is independent of any copyright infringement negatively impacts legitimate, non-infringing circumvention. However, the footnote that appeared in the final text could mitigate the harm of this provision because circumvention for legitimate purposes would not prejudice the interests of the right holder.

Inclusion and Improvements on Text on Limitations and Exceptions

The United States’ initial proposal included placeholder text for limitations and exceptions on copyright. The United States tabled a proposal on limitations and exceptions in July 2012. While proposal was a welcome one, including language referencing balance for purposes such as “criticism, comment, news reporting teaching, scholarship and research” which had never been in any prior United States free trade agreement, there were also criticisms of the proposal which noted that this new paragraph was “subject to and consistent with” the three-step test. Critics pointed out that some specific limitations and exceptions, such as the quotation right under the Berne Convention, are not subject to the three-step test (that limitations and exceptions are confined to 1) certain special cases, 2) the at do not conflict with the normal exploitation of the work, and 3) do not unreasonably prejudice the legitimate interests of the right holder).

Ultimately, the language regarding limitations and exceptions was improved and clarification was included that the text on the three-step test did not reduce or extend the scope of limitations and exceptions under international agreements including TRIPS, the Berne Convention, and the WIPO Internet Treaties.

The text of the United States’ proposal also improved with respect to the fact that the list of “legitimate purposes” now specifically references “other similar purposes” as well as “access to published works for persons whoa re blind, visually impaired, or otherwise print disabled.” The text also includes a specific footnote recognizing the Marrakesh Treaty and acknowledges that some Parties facilitate the availability of accessible format works beyond the requirements of the Marrakesh Treaty.

Finally, while the language on limitations and exceptions could have been stronger with language mandating that parties achieve a balance or foster a balance, rather than the agreed to language that “Each Party shall endeavor to achieve an appropriate balance in its copyright and related rights system,” the inclusion of the language in the final text is still a success. The United States has now recognized in a free trade agreement the importance of balance in the copyright system. Furthermore, the United States has stated that this language provides “an obligation for Parties to continuously seek to achieve balance in copyright systems,” because the language requires Party to “endeavor to achieve” balance. The words “shall endeavor” do create a mandatory obligation for parties to seek this balance.

Inclusion of this language signals that the Office of the United States Trade Representative (USTR) has responded to criticisms that the United States proposals only export rights for rightholders and not our balanced system which includes limitations and exceptions. This language should be included in future trade agreements and USTR should seek to improve upon it in the future by strengthening the language requiring parties to achieve a balance or foster a balance. Despite the fact that the language could have been stronger, its inclusion in the final text still reveals a mandatory obligation for parties and represents a positive development.

Remedies Allow for Judicial Discretion

The final language regarding enforcement also shows areas where the text has improved from the United States’ initial proposal.

For example the final text includes language that replicates text from the Anti-Counterfeiting Trade Agreement (ACTA) requiring parties to take proportionality into account. The text reads, “In implementing the provisions of [the enforcement] Section in its intellectual property system, each Party shall take into account the need for proportionality between the seriousness of the intellectual property infringement, and the applicable remedies an penalties, as well as the interests of third parties.” This language on proportionality is a welcome inclusion and would ultimately allow domestic laws to provide judicial authorities discretion in ordering remedies.

Additionally, while the United States’ initial proposal in 2011would have required judges to consider certain measures of damages (“in determining damages for infringement of intellectual property rights, its judicial authorities shall consider, inter alia, the value of the infringed good or service, measured by the suggested retail price or other legitimate measure of value submitted by the right holder”) the final language provides judicial authorities the discretion to consider these measures of damages. The final text provides that “judicial authorities shall have the authority to consider . . .” and this added language “have the authority” changes the text from a mandatory obligation that judges consider these measures of damages to providing them the discretion to do so. This addition is an improvement and consistent with current United States law which permits judicial discretion.

Other provisions on the text on remedies includes similar language, providing that judicial authorities “shall have the authority” to impose certain remedies, but does not actually require that authorities order these remedies. While some have criticized the TPP as prohibiting the Copyright Office’s proposal on orphan works (which is a highly flawed proposal as analyzed here and here), the actual text of the TPP permits considerable discretion and does not actually require authorities to order damages in a particular amount.

General Provisions

As noted in ARL’s analysis of the August 2015 leak, language on general provisions reveal considerable positive developments. The final text includes language provides that the objectives of the agreement are as follows:

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

The principles specifically reference the public interest and address the need to prevent abuse of intellectual property by right holders: 

1.  Parties may, in formulating or amending their laws and regulations, adopt measures necessary to protect health and nutrition, and to promote the public interest in sectors of vital importance to their socio­economics and technological development, provided that such measures are consistent with the provisions of this Chapter.

2.  Appropriate measures, provided that they are consistent with the provisions of this Chapter, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

The final text also includes a section on “Understandings in respect of this Chapter” which reads as follows:

Having regard to the underlying public policy objectives of national systems, the Parties recognize the need to:

  • promote innovation and creativity;
  • facilitate the diffusion of information, knowledge, technology, culture and the arts; and
  • foster competition and open and efficient markets;

through their intellectual property systems, while respecting the principles of transparency and due process, and taking into account the interests of relevant stakeholders, including rights holders, service providers, users and the public.

The August 2015 leaked text, reflecting the negotiating text as of May 2015, also included language proposed by Chile and Canada “acknowledging the importance of preserving the public domain.” This text was, however, opposed by the United States and Japan and ultimately not included in the agreement. It is extremely unfortunate that the United States and Japan would oppose inclusion of such text.

However, in the section on “Cooperation” the text from the August 2015 leak remains in the final text recognizing the importance of the public domain:

The Parties recognize the importance of a rich and accessible public domain. 

The Parties also acknowledge the importance of information materials, such as publicly accessible databases of registered intellectual property rights that assist in the identification of subject matter that has fallen into the public domain.

While it is disappointing that the United States and Japan opposed the inclusion of a reference to the public domain in the general provisions, the fact that the importance of the public domain is recognized on the section regarding cooperation is still welcome language.

Shortcomings/Areas for Improvement in Future Agreements

Flexibility on ISP Liability

The final language of the agreement does provide for some flexibilities with respect to Internet Service Providers (ISP). While the text, contained in Section I, is modeled off the DMCA and provides for safe harbors for ISPs implementing a notice-and-takedown system, an annex specifically preserves Canada’s notice-and-notice system. The annex provides that the notice-and-takedown safe harbors do not apply to a Party that has implemented a notice-and-notice system instead.

Unfortunately, this flexibility will only be permitted for Canada and not for the other negotiating parties. The language under the annex requires the system to be in place “upon date of agreement in principle of this Agreement,” which occurred when the trade ministers announced the agreement on August 5, 2015. Canada was the only country at that time to have a notice-and-notice system in place.

However, another annex to the intellectual property chapter provides that as an alternative to implementing the article on ISP, parties may instead implement Article 17.11.23 of the US-Chile free trade agreement. Chile’s system involves notice-and-takedown, but involves a judicial order before takedowns are required. Countries may therefore choose between implementing the language in the TPP or the language of the US-Chile trade agreement.

Unfortunate Extension of Copyright Term

Copyright Term Extension

One of the biggest areas of criticism that remains in the final agreement is that the parties settled on a copyright term of life plus seventy years, or seventy years for corporate works. The United States’ 2011 proposal would have set copyright term as the life of the author plus seventy years, or ninety-five (or up to one-hundred twenty years if unpublished) years for corporate works. While countries did not accept the United States’ proposals on corporate works, they did agree to the term of life plus seventy years. Some countries with pre-existing free trade agreements with the United States (Australia, Chile, Peru and Singapore) already had obligations to provide for a period of life plus seventy years and Mexico had an even longer term, which it proposed, of life of the author plus one hundred years.

However, it is highly unfortunate that the other countries ultimately agreed to extend copyright term, given the lack of justification for excessively long terms. The Hargreaves report commissioned by the United Kingdom, for example, points out that economic evidence does not support copyright term extensions. Maria Pallante, Register of Copyrights, noted that a Copyright Office study questioned “whether copyright term should be extended to benefit remote heirs or assignees, ‘long after the purpose of the protection has been achieved.’” Despite the lack of policy justification for these terms and the fact that copyright term extension damages the public domain and increases the orphan works problem, the final text of the agreement reveals that countries must provide for copyright terms that go far beyond the minimum international standards.

After the trade ministers announced an agreement had been reached, New Zealand released a fact sheet on the TPP. This fact sheet estimated that the copyright term extension would cause “significant cost” to New Zealand: “This cost – in terms of foregone savings on books, films, music and other works – increases gradually over 20 years and averages around $55 million a year over the very long term.”

Article QQ.A.10bis, however, does provide that countries that are required to implement copyright term extension do not need to restore protection to subject matter that has fallen into the public domain in its territory as of the date of entry into force of the agreement. The extension will therefore apply only to those works that are still under protection as of the date the agreement enters into force for that country (which will depend on each country’s domestic process for approving the final agreement).

While the United States will not require changes to its domestic laws with respect to copyright term, it is unfortunate that this term is being imposed on other countries when it far exceeds international standards. Brunei, Canada, Japan, Malaysia, New Zealand and Vietnam will all be required to increase the copyright terms in their countries. Furthermore, it would be extremely difficult for the United States to revisit this term and reduce copyright term in the United States, even though evidence justifies and supports shorter terms, as the TPP would need to be re-negotiated with all TPP parties.

Conclusion

While there are still areas where the TPP should be criticized and several areas where the language of the TPP could have been better, the final text reveals significant improvements from the United States’ initial proposals. It is possible that some of these proposals resulted from stakeholder engagement, including criticisms of prior texts and proposals which was only made possible through leaks. These improvements and changes in the text over the course of the five years of negotiations reveal the importance of transparency in negotiations.

The TPP will still need to be approved by the domestic procedures set forth in each of the parties. In the United States, Congress will vote under the “fast track” procedures it set when it granted the President trade promotion authority. Congress will be able to approve or reject the agreement in a straight up-down vote, meaning that it cannot amend the agreement. Due to the timing set forth under fast track procedures, a vote in the United States will not occur until 2016. In Canada, a vote will not take place on the TPP until after it concludes its upcoming elections on October 19 and the new Parliament is in place.

Whether or not Congress approves the agreement, the final text of the TPP will likely provide the starting point for future negotiations. USTR has used past agreements, particularly the most recently concluded free trade agreements, as a template for future agreements. The gains made with respect to supporting a balanced copyright system should serve as a basis for additional improvements in the future.

Bill to Amend Canada’s Copyright Act in Preparation for Accession to the Marrakesh Treaty Tabled in the House of Commons

On June 8, 2015, proposed amendments to Canada’s Copyright Act were tabled in the House of Commons. These amendments, contained in Bill C-65, the Support for Canadians with Print Disabilities Act, would amend the Copyright Act in order to prepare for implementation of and accession to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (“Marrakesh Treaty”).

This bill follows the April 21, 2015 budget proposal, which signaled an intention to amend the Copyright Act and accede to the Marrakesh Treaty. In that proposal, the Canadian government noted that accession to the Marrakesh Treaty would benefit the approximately 1 million blind or visually impaired Canadians.

Under Canada’s Copyright Act, Article 32 provides a limitation to allow for the creation and distribution of accessible format works for those with disabilities. The current provision broadly permits the creation of an accessible work for persons with a perceptual disability. It does not, however, permit the creation of a large print book. The current exception applies only where an accessible format is not commercially available. A non-profit organization may export an accessible format copy, but only where the author of the work is a Canadian citizen or permanent resident or a citizen or permanent resident of the country to which the copy is being sent. Copies may not be exported where the organization knows or has reasonable grounds to know that an accessible format is available in that country within a reasonable time and for a reasonable price. Royalties are owed by the organization making or sending the accessible format copy. The current copyright law also has an exception to the prohibition against circumvention of technological protection measures, but only where it does not “unduly impair” the technological protection measure.

Bill C-65 makes several changes to Article 32. One of the most significant changes is that it removes the prohibition on the creation of large print format as an accessible copy. Large print is an important type of accessible format because many of those who are visually impaired do not require audio formats or may not read Braille. For example, with age, individuals often require larger print. The Marrakesh Treaty broadly defines an “accessible format copy” and the removal of the prohibition against large print in Article 32, complies with the Treaty and will greatly benefit an aging population.

Another key change would allow the sending of accessible formats to other countries, regardless of the nationality of the authors of the works. Bill C-65 allows for the export of accessible format works to both Marrakesh Treaty countries as well as non-Marrakesh Treaty countries. It would allow for injunctions, but not damages, where the accessible format was exported to a country where it was commercially available within a reasonable time, for a reasonable price and located with reasonable effort. Where a work is exported to a Marrakesh Treaty country, the owner of the copyright bears the burden of demonstrating commercial availability. Where a work is exported to a non-Marrakesh Treaty country, the non-profit organization must also show that it had reasonable grounds to believe that it was not commercially available.

Additionally, Bill C-65 permits circumvention of technological protection measures, removing the condition that the technological protection measure not be unduly impaired. It instead provides that circumvention is permitted for the sole purpose of enabling those with perceptual disabilities, or non-profit organizations who serve them, to access accessible formats of the work.

Introduction of Bill C-65 is a key first step in acceding to the Marrakesh Treaty. The Marrakesh Treaty currently has 8 ratifications and will need 12 more for entry into force. In the United States, the Administration has been working on preparing its ratification package, but it has not yet been submitted to Congress.

Canadian Author’s Collective, Access Copyright, Dealt Major Blow; Future Uncertain

*This is a guest blog post by Bobby Glushko, Head of the Scholarly Communications and Copyright Office for the University of Toronto Libraries*

On May 22, 2015, the Copyright Board of Canada certified a surprisingly low tariff for copying undertaken by the full time professional staff of provincial governments, such as legislators, aides, and other provincial employees. The tariff, 11.56¢ per employee, per year, for the 2005- 2009 period and 49.71¢ per employee, per year, for the 2010-2014 period, is vastly lower than the $15 tariff initially proposed by Access Copyright. In its decision, the Board supported several interesting copyright theories which may have long term significance for libraries in Canada.

It has long been the custom that Canadian institutions would hold licenses with one or many of the various rightsholder collectives to cover their uses of copyrighted content. These licenses were generally paid on a per employee basis, and were set by either negotiation or through the operation of the Copyright Board of Canada, an administrative body established by Parliament to, among other things, issue tariffs for the use of copyrighted content. One of the major collectives issuing these licenses is Access Copyright, a collective representing authors, publishers, and visual artists. Over the past decade, the costs of the Access Copyright license, a license which allows for institutions to copy significant portions of published works in their licensing repertoire, and the price of the tariff have risen dramatically, from a low of $3 per employee to as high as a proposed $45 per employee. With such uncertainty in the market, and a substantial realignment of the law, Canadian universities and colleges have been forced to re-examine the value of the Access Copyright license, and many of them have chosen to forgo purchasing a license or accepting the tariff, choosing instead to handle rights clearances in house, often in their libraries, and to license content on a transactional basis where necessary.

These changes have not gone unchallenged, however.   In April 2013, Access Copyright sued York University, claiming that by operating without an Access Copyright license or working under a tariff, York was “authorizing and encouraging copying that is not supported by the law.” In their claim, Access Copyright argued that due to the presence of copyright infringement at York, the University needed to be subject to the Board’s tariff, and could not operate outside a license arrangement. A similar suit was brought by Copibec, the comparable author’s collective from Quebec, against Université Laval as well.

While the litigations are still ongoing, this recent action by the Board calls into question their viability and even the continued existence of Access Copyright. Projected revenues from the proposed tariff were around twenty-five million dollars over the covered period; the issued tariff provides for approximately three hundred seventy thousand dollars over the same period, an amount that will likely not even cover the cost of Access Copyright’s action before the Board to obtain the tarriff. As devastating as the financial loss is, the loss on substantive legal arguments appears to be even worse. While the Board’s rationale is not binding on the courts, judges have tended to give deference to the Board as a finder of fact. In this current tariff proceeding, the Board ruled against Access Copyright on several legal arguments, two of which are expanded upon below.

First, the Board rejected the argument that Access Copyright had the capacity to license all published works from which it was not explicitly excluded from licensing, even in the absence of a formal arrangement with a rightsholder. While this may seem obvious in a non-extended licensing jurisdiction, that is, a jurisdiction where all types of published works are subject to a non-voluntary licensing regime, it was in fact a longstanding claim by Access Copyright that they had the capacity to do this. By rejecting this argument, the Board dealt a huge blow to any litigation involving Access Copyright’s repertoire, and essentially posed an existential threat to the organization.

Second, and equally as important, the Board flatly rejected Access Copyright’s interpretation of the scope of fair dealing in Canada. Since the Supreme Court of Canada’s series of rulings on copyright law in 2012, which have been termed the Copyright Pentalogy, the scope of fair dealing has been subject to a fairly fierce debate. Nearly all Canadian universities have adopted fair dealing guidelines which state that the copying of 10% or one chapter of a book, or one article from a journal issue, would generally tend to be fair for the purposes of education, teaching, or private study, given the assumption that the other fair dealing factors do tend towards fairness in the context of higher education. In this action before the Board, Access Copyright advanced a theory of the scope of fair dealing that was far more limited; a theory which the Board wholeheartedly rejected in favour of a scope of fair dealing closely aligned with the commonly adopted university guidelines. The implications of this for the ongoing litigation are tremendous, as a rejection of the fair dealing guidelines adopted across Canada is an essential element of Access Copyright’s legal strategy.

Given the current climate, where most Universities and Colleges are choosing to operate outside of a tariff or a license with Access Copyright, the Board’s decision comes as yet another huge setback in what has been a series of losses for the collective. Perhaps this decision, rather than being the next chapter for Access Copyright, may be an indication that its long story is coming to an end.

If you’re interested in these issues, come join us at the Copyright in Canada Conference on October 2nd 2015 in Toronto, Ontario.

Canada’s Budget Proposes Extension of Copyright Term for Sound Recordings, Ratification of Marrakesh Treaty

On April 21, 2015, Canada released its 500-page budget plan, which includes several references to intellectual property.

Among its copyright proposals, Canada’s Economic Action Plan 2015 proposes to amend the Copyright Act to extend the copyright term of sound recordings and performances from 50 years to 70 years.  The budget states,

The mid-1960s were an exciting time in Canadian music, producing many iconic Canadian performers and recordings.  While songwriters enjoy the benefits flowing from their copyright throughout their lives, some performers are starting to lose copyright protection for their early recordings and performances because copyright protection for song recordings and performances following the first release of the sound recording is currently provided for only 50 years.

Canada currently follows the international standard of providing 50 years of protection for sound recordings.  Canada is involved in the negotiations of the Trans-Pacific Partnership Agreement (TPP), a regional trade agreement with a total of 12 currently negotiating parties including the United States.  The United States has proposed a copyright term of life plus 70 years, or 95 years for published corporate works such as sound recordings.  Other countries with pre-existing bilateral free trade agreements (FTA) with the United States (Australia, Chile, Peru and Singapore)  have pushed back against the extension to 95 years, instead advocating for a period of 70 years, the term that has been agreed to in previous US FTAs.  While the Canadian budget applies only to sound recordings, the proposal could indicate an intention to support the same term in the TPP.

On a more positive note, the new budget includes a number of proposals on “Helping Canadians With Disabilities,” including introducing implementing legislation for the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.  The budget calls to improve access to print materials for those who are visually impaired:

The Government will propose amendments to the Copyright Act to implement and accede to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. The ability to access printed information is essential to prepare for and participate in Canada’s economy, society and job market. According to Statistics Canada, approximately 1 million Canadians live with blindness or partial sight. The Government will propose amendments to the Copyright Act to implement and accede to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (the Marrakesh Treaty). Aligning Canada’s copyright limitations and exceptions with the international standard established by the Marrakesh Treaty would enable Canada to accede to this international agreement. Once the treaty is in force, as a member country, Canadians would benefit from greater access to adapted materials.

This proposal is a welcome one and ARL urges Canada to move toward swift ratification.  Implementation of the Marrakesh Treaty would greatly improve access to accessible format works.  The Marrakesh Treaty allows for the cross-border exchange of accessible formats, allowing countries to avoid duplication of efforts as they can import existing accessible copies from other countries.  The Marrakesh Treaty currently has 8 ratifications and will need 12 more for entry into force.