Tag Archives: International Copyright

Marrakesh Treaty Enters Into Force in the United States

Today, May 8, the World Intellectual Property Organization (WIPO) administered Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled enters into force in the United States.  The United States Senate ratified the Marrakesh Treaty last summer and the United States House of Representatives passed the implementing legislation in September 2018.  Following the United States’ deposit of its instrument of ratification with WIPO on February 8 and the subsequent three month period prescribed in the treaty, the treaty is now in force in the United States.

The Marrakesh Treaty is designed to address the “book famine” problem in which it has been estimated that only between 1 and 7% of all published works are ever created in an accessible format for those that are blind, visually impaired or otherwise print disabled.  The Marrakesh Treaty sets forth minimum standards for limitations and exceptions to facilitate access to accessible format works.  It 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.  The cross-border provision also facilitates importation of works created in other languages.

As an organization dedicated to achieving enduring and barrier-free access to information, ARL celebrates this milestone in the United States.  Libraries, as authorized entities, play a critical role not only in serving their own patrons, but also in facilitating cross-border exchange of accessible format works.  The United States is one of 55 contracting parties and countries from every region of the world are members of the Marrakesh Treaty.  Canada previously joined the Marrakesh Treaty in 2016 and, significantly, was the 20th ratifying or acceding country which triggered the entry into force of the Treaty itself.  A number of other ratifications are also currently underway.

Marrakesh Treaty Unanimously Supported by U.S. Senate Foreign Relations and Judiciary Committees

The United States is moving closer toward ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (Marrakesh Treaty).  The Marrakesh Treaty is a World Intellectual Property Organization (WIPO) based treaty that was adopted in June 2013, and went into force in September 2016 when Canada triggered entry into force as the 20th country ratifying or acceding to the treaty.  The Marrakesh Treaty provides minimum standards for limitations and exceptions to create and distribute accessible format works for persons who are blind or print disabled, and also allows for cross-border exchange of accessible formats. Cross-border exchange is a critical feature of the treaty and could greatly alleviate what is known as the “book famine,” a situation in which the National Federation of the Blind estimates that no more than 5 percent of published works are created in an accessible format.

The United States Senate has been actively considering the Marrakesh Treaty, and the Marrakesh Treaty Implementation Act (S.2559) was introduced by a bipartisan group of Senators on March 28, 2018, including Foreign Relations Committee Chair Corker (R-TN) and Ranking Member Menendez (D-NJ), Judiciary Committee Chair Grassley (R-IA) and Ranking Member Feinstein (D-CA), and Senators Hatch (R-UT), Harris (D-CA) and Leahy (D-VT).

During the Senate Foreign Relations Committee hearing on April 18, 2018, witnesses included Manisha Singh (Department of State), Allan Adler (Association of American Publishers), Scott LaBarre (National Federation for the Blind) and Jonathan Band (Library Copyright Alliance). During the hearing, Singh said that ratification of the Marrakesh Treaty was a “win for everyone,” and pointed out that it would allow people with print disabilities in the United States access to 350,000 additional works that they do not currently have access to.  She noted that while 35 other countries have ratified the treaty (now 37), none of the current parties have the breadth of the collections in the United States. Members of the Committee and the witnesses repeatedly noted that there is no known opposition to the Marrakesh Treaty.

The Senate Judiciary Committee reported the Marrakesh Treaty Implementation Act unanimously out of committee on May 10, 2018. Chairman Grassley’s prepared statement noted:

I’m glad we’re considering S. 2559 today, a bill to implement the Marrakesh Treaty. The United States signed the treaty in October 2013 to facilitate access to published works for blind, visually impaired, or otherwise print disabled persons. The Foreign Relations Committee held a hearing on the Treaty and is planning to move on the Treaty’s ratification process.

The Marrakesh Treaty Implementation Act is a consensus bill that was developed by both the Judiciary and Foreign Relations Committees with stakeholders within the publisher, library and print disabilities communities. We did this in consultation with the U.S. Patent and Trademark Office and the Copyright Office. As such, the bill enjoys the support of all these stakeholders, as well as other interested industry, copyright and public interest stakeholders. I particularly want to commend the National Federation of the Blind, the Association of American Publishers, and the Library Copyright Alliance for working with us in reaching an agreement on legislative text and proposed legislative history. We would not be here today without their efforts.

[ . . . ]

S. 2559 would go a long way in helping to give people with print disabilities—here in the United States and all over the world—greater access to materials in formats such as braille, large print and specialized digital audio files. It is a bipartisan, consensus bill that enjoys widespread support. It is supported by the copyright community as well as by the Administration.

Today, May 22, 2018, the Senate Foreign Relations Committee followed suit and also reported the treaty out of committee unanimously.  The Marrakesh Treaty will now go to the full Senate for consideration and needs at least a 2/3 majority to pass.  ARL urges the full Senate to support the Marrakesh Treaty, which will promote access to knowledge for those who are bind, visually impaired or print disabled both in the United States and abroad.

 

Senate Foreign Relations Committee Holds Hearing on the Marrakesh Treaty for Persons With Print Disabilities

On March 15, 2018, the Marrakesh Treaty Implementation Act (S. 2559) was introduced in the US Senate by Judiciary Committee Chair Grassley (R-IA), Ranking Member Feinstein (D-CA), Foreign Relations Committee Chair Corker (R-TN), Ranking Member Menendez (D-NJ), and Senators Hatch (R-UT), Harris (D-CA), and Leahy (D-VT), to ratify and implement the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (ARL’s press release on the introduction of the implementing legislation is available here).  Today, April 18, 2018, the Senate Foreign Relations Committee will hold a hearing on the Marrakesh Treaty.  Witnesses include Manisha Singh (Department of State), Allan Adler (Association of American Publishers), Scott LaBarre (National Federation for the Blind) and Jonathan Band (Library Copyright Alliance).

The Marrakesh Treaty, concluded in June 2013 and signed by the United States in October 2013, provides minimum standards for limitations and exceptions to copyright law to create and distribute accessible formats for people with print disabilities and allows for the cross-border exchange of these formats. The treaty is designed to address the “book famine,” a problem where less than 5% of all published works are created in an accessible format in the United States, a figure that drops considerably in some developing countries. The treaty is in force, with 35 contracting parties, currently: Argentina, Australia, Botswana, Brazil, Burkina Faso, Canada, Chile, Costa Rica, Democratic People’s Republic of Korea, Ecuador, El Salvador, Guatemala, Honduras, India, Israel, Kenya, Kyrgyzstan, Liberia, Malawi, Mali, Mexico, Mongolia, Nigeria, Panama, Paraguay, Peru, Republic of Korea, Republic of Moldova, Russian Federation, Saint Vincent and the Grenadines, Singapore, Sri Lanka, Tunisia, United Arab Emirates, and Uruguay.

The implementing legislation makes some technical changes to Section 121 of the Copyright Act, including expanding the scope of works that may be reproduced and distributed to dramatic works or musical compositions fixed in text or notation. Section 121 would apply for domestic activity regarding the creation and distribution of accessible format works. The bill also creates a new Section 121A to address activities involving cross-border exchange.

Ratification and implementation of the Marrakesh Treaty is critical to improving access to information and culture for those who are blind, visually impaired or otherwise print disabled. The treaty will not only assist those living in countries with extremely limited collections of accessible formats, but will provide significant benefits to those in the United States. The United States will be able to enhance its own collections of accessible format works, through exchange with countries with a common language, such as Australia and Canada, but will also benefit from the ability to import works in a foreign language, such as the nearly 50,000 accessible titles from Argentina.

ARL urges the Senate to quickly ratify the treaty, which will greatly enhance the ability of libraries and other authorized entities to serve those with print disabilities. Ratification and the implementing legislation is supported by a broad group of stakeholders, including organizations representing those who are blind, libraries and authorized entities and publishers.

For additional reading:

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.

 

Chile Becomes 17th Country to Ratify Marrakesh Treaty

Chile recently became the seventeenth country to ratify the Marrakesh Treaty to Faciltiate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.  Countries from nearly every region have ratified the treaty including: Argentina, AustraliaBrazilEl Salvador, India, Israel, Mali, MexicoMongolia, North Korea, Paraguay, PeruSingapore, South Korea, the United Arab Emirates and Uruguay.  The Marrakesh Treaty requires twenty ratifications before it enters into force and only three more countries are needed.

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.

With Chile’s ratification, eight countries in Latin America have now joined and will be able to share their accessible formats across borders.  Argentina has a relatively large collection of accessible formats available through TifloLibros which will benefit those in other Spanish speaking countries.  Should the United States ratify the Marrakesh Treaty, these ratifications in Latin American countries will be of great benefit to those who are print disabled in the United States that speak Spanish.  According to a 2015 study based on US census data, the United States has more Spanish speakers than Spain; only Mexico has a larger Spanish speaking population.

Of course, ratification would not only benefit those in the United States (such as those requiring accessible formats in Spanish), but also individuals with print disabilities in other countries who could import books from the relatively large collections of accessible formats in the United States.

While the Obama Administration sent the Marrakesh Treaty to the U.S. Senate in February of this year, it has not yet been scheduled for a hearing or vote.  Earlier this year, Canada tabled Bill C-11 to prepare for implementation and accession to the Marrakesh Treaty though it also has not yet come up for a vote.

Australian Productivity Commission Recommends Fair Use, Shorter Copyright Terms

On April 29, 2016, the Australian Productivity Commission issued a nearly 600 page draft report on Intellectual Property Arrangements recommending a number of positive changes to provide better balance to the intellectual property system, including recommendations on fair use, shorter copyright terms, and specifying that copyright licensing does not override limitations and exceptions for libraries and archives.

In the overview, while the Commission acknowledges the importance of incentivizing creation, the report also notes that

the use of an idea by one party does not reduce its capacity for use by another, and and that ideas provide economic and social value as other parties draw on existing knowledge to create their own.  Since new ideas are a major source of economic growth, any defects in IP arrangements intended to encourage their creation and diffusion can be very costly

[ . . .]

Indeed, overly strong restrictions on diffusion can be so detrimental to innovation that it can undo the benefits of the IP system in the first place . . .

The Commission begins a section entitled “Copy(not)right” by pointing out that “Australia’s copyright arrangements are weighed too heavily in favour of copyright owners, to the detriment of the long-term interests of both consumers and intermediate users.”  Much of the framework emphasizes balance and also recognizes the need for adaptability.

The Commission’s report also points out the importance of erring on the side of weaker IP protections because:

Recent experience would also tend to suggest that it is easier to extend IP rights than narrow them, especially where international agreements are concerned.  Given the asymmetric nature of how policy can be changed, the Commission considers it is appropriate “to err on the side of caution” where there is imperfect information, and deliberately set weaker parameters in the way that rights are assigned, used or enforced.  Extending rights should only occur after careful consideration of how such a change might affect future innovations, whether IP rights are the best way to drive the desired outcome, and how it might affect the greater number of consumers relative to producers of IP.

Ultimately, “the current Copyright Act is weighted too heavily in favor of copyright owners, to the detriment of the long-term interests of users.”

Fair Use

The Commission examines fair use and fair dealing exceptions and explains that Australia’s fair dealing exception provides a closed list of uses.  The US fair use approach, by contrast, relies on factors to determine whether the exception applies.  Thus, “In Australia, legislative change is required to expand the categories of use deemed to be fair.  In contrast, US courts have latitude to determine if, on the facts, a new use of copyright material is fair.  This allows the exception to be flexible and adaptive over time.”

The draft report includes a illustrative list of uses considered to be fair use in the US which would require a license in Australia, as it is not permitted by the current fair dealing provision.  These uses include: an internet search engine’s publication of thumbnail images in search results; an author’s quotation of unpublished letters in a biography; an artist’s collage using images from a photography book; a searchable database of TV clips; the use of scenes from a film for a biographical film about the lead actor; text and data mining, among others.

The Commission rejects the argument that fair use is too uncertain and therefore should not be adopted:

In the Commission’s view, legal uncertainty is not a compelling reason to eschew a fair use exception in Australia, nor is legal certainty desirable in and of itself.  Courts interpret the application of legislative principles to new cases all the time, updating case law when the circumstances warrant it.  To say otherwise would be to argue that all laws should be prescriptive — a doctrine that is inconsistent with many laws across all social and economic arenas, and completely inimical to the common law.  In addition, even under a fair use regime it is possible to specify a non-exhaustive list of illustrative purposes which provides strong guidance to parties.

Additionally, the Commission points out that there are similarities between the US’ fair use factors and the factors within Australia’s current fair dealing exception for research or study and that fair use may not be as uncertain as suggested.  The report points out that, while not binding, Australia could also look to US court opinions for guidance on fair use.

In 2014, the Australia Law Reform Commission recommended inclusion of a fair use provision with illustrative examples including those found in the US fair use statutes as well as parody or satire; professional advice; quotation; non-commercial private use; incidental or technical use; library or archive use; and access for people with disabilities.  The Productivity Commission states that “the ALRC’s recommendation on fair use represents the minimum level of change the Australian Government should pursue” and recommends expansion of a fair use provision to apply to orphan works and out-of-commerce works (meaning that these would be included in the non-exhaustive illustrative list of purposes).

Explaining the problem of orphan works, the Commission states that it “is not aware of any country that has fully resolved the issue of orphan and unavailable works” then examines the three approaches others are considering including: requiring a statutory license, creating an exception for the use of orphan works (such as the EU directive) and limitations on damages and remedies (proposed by the US Copyright Office).  The draft report concludes:

in the case of orphan and out-of-commerce works, creators are not actively exploiting their creation in order to generate an economic return.  Proposals to create licensing schemes, whereby consumers can pay to access such works, is one approach to unlocking their value, but likely represents a windfall gain to producers.  The Commission considers it unlikely that a creator, prior to investing the time and effort in a new work, does so on the basis that their work will have an initial commercial life, a period ‘out of the market’, and a subsequent revival perhaps decades down the track.  While this does occur for many works, it is largely by happenstance rather than design.

The Commission recommends that, “At its heart, Australia’s exception for fair use should allow all uses of copyright material that do not materially reduce a rights holder’s commercial exploitation of their work at the time of use.”

Copyright Term

The Commission’s report points out that a copyright term of life of the author plus 70 years is excessive.  While it acknowledges that Australia is bound to its long copyright terms as a result of trade agreements, it recommends international negotiations to lower the term.  The Commission notes:

An effective and efficient copyright system sets term at a level that encourages creation without unduly constraining access to creative works.  Since it is not possible to define terms specific to each given work, an “optimal” term is a period that, on average, creates reasonable incentives for creation while avoiding the consumer losses associated with exclusivity.  The situation is conceptually similar to that apply to patents.  Australia’s copyright term provides protection for the author’s life plus 70 years . . . Providing financial incentives so far into the future has little influence on today’s decision to produce.  For example, the addition of twenty years of protection many years in the future, such as occurred when Australia increased term from life plus 50 years to life plus 70 years . . . only increases revenue by 0.33per cent.  Such a small increase in revenue “offers at most a very small additional incentive for an economically minded author of a new work.” (citations omitted)

The Commission also reports that “evidence suggests the vast majority of works do not make commercial returns beyond their first couple of years on the market” and that the average commercial life of music is 2-5 years, for literary works 1.4-5 years, for visual artistic works 2 years, and for film 3.3-6 years.

In addition to the financial costs of copyright term extension in which consumers pay higher prices for a longer period of time, the report also acknowledges other costs such as orphan works.

Ultimately, the Commission finds that “While hard to pinpoint an optimal copyright term, a more reasonable estimate would be closer to 15 to 25 years after creation; considerably less than 70 years after death.”  The Commission acknowledges, however, that “Australia has no unilateral capacity to alter copyright terms, but can negotiate internationally to lower the copyright term” and “the Commission considers that there are strong grounds ofr Australia to work with other countries to attempt, over the long term, to achieve a system that gives greater recognition to consumer interests.”

Relationship Between Contracts and Limitations and Exceptions

The Commission examines the Australian Law Reform Commission’s 2014 recommendation that would prevent copyright licenses from relying on limitations and exceptions and concludes:

exceptions play an important role in balancing the interests of copyright producers and users.  Given the evidence presented by the Australian Libraries Copyright Committee, the Council of Australian University Libraries and National and State Libraries Australasia, the problems appear to mainly relate to libraries and archives, rather than other users.  Given this, the Commission considers that copyright license in the digital world should maintain the copyright exceptions for libraries and archives.

Because “It is less clear license conditions for digital content are undermining consumers’ ability to use Australia’s current copyright exceptions,” the Commission requests more information on this issue beyond the impact on libraries and archives.

Parallel Importation

The Commission also recommends repeal of Australia’s parallel importation restrictions on books and that the reform take effect no later than the end of 2017.

Trade Agreements

The draft report points out some of the harms of increasing intellectual property rights in trade agreements.  For example, with respect to copyright term extension implemented as a result of the Australia-US Free Trade Agreement, the estimated cost to Australia was $88 million per year.  The report points out that “A similar obligation to New Zealand as a result of the Trans-Pacific Partnership was estimated to cost $55 million per year.”

Another key point from the report was that “Multilateral and bilateral trade agreements are the primary determinant of Australia’s IP arrangements.  These agreements substantially constrain domestic IP policy flexibility.”

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.

Sixteen Organizations Join Letter Supporting Rapid Ratification of Marrakesh Treaty

ARL, together with fifteen other organizations including library associations, blind and disability groups, authorized entities and non-profit advocacy organizations, joined a statement supporting rapid ratification of the Marrakesh Treaty.  The Obama Administration sent the Marrakesh Treaty to the Senate on February 10, 2016 and the letter calls on the Senate to ratify the Treaty and for the House and Senate  to pass the Marrakesh Implementation Act.  The Treaty provides minimum standards for limitations and exceptions to create and distribute accessible formats for the print disabled and allows for the cross-border exchange of these formats.

The statement notes:

We believe the Treaty is consistent with United States law and could be ratified without any changes to existing statutes or regulations.

Notwithstanding this view, we are prepared to support the legislative package as proposed by the Administration because it makes minimal changes to the law and its consideration would, we trust, facilitate early Senate consent to ratification. We are confident that the focused and narrow changes that have been proposed are enough to satisfy the terms of the Marrakesh Treaty. We believe any effort to make any other changes in US law, beyond those proposed by the Administration, would unnecessarily delay and jeopardize the ratification of this treaty. Blind and otherwise print disabled Americans have waited far too long for equal access to printed materials.

We call upon the Senate to consent to ratification without any reservations, understandings or declarations. We further encourage Congress to hold hearings expeditiously and to enact the implementing legislation along with the suggested legislative history as currently drafted, without delay. If the Treaty is ratified and the legislation adopted, the blind and otherwise print disabled of our nation will benefit greatly by having access to the rest of the world’s accessible book collection and the blind and otherwise print disabled of the world will advance their quest for greater information through access to books in the United States.

The full Joint Statement Supporting Marrakesh Treaty Ratification is available here.

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.