Intellectual property law has had an increasingly important place in international trade agreements and negotiations for many years. Yet one of the most fundamental aspects of copyright law, the rights of the public to use works for specific purposes without permission from or compensation to the owner, continues to be governed domestically despite the growing importance of a consistent international approach. The current COVID-19 pandemic, which has spurred a flurry of online innovation, has further illuminated the importance of intellectual property law.
Copyright law governs the use of creative works such as books, computer programs, databases, articles, photographs and music. Copyright law strives to balance the rights of authors and creators to be compensated for the use of these works with the rights of the public to use them to innovate and to create new works. The latter category of rights is known as "users' right" or limitations and exceptions to copyright.
In Canada, these users' rights include rights for libraries, archives and museums to make certain uses of works; rights for the public to create copies for private purposes, such as creating backup copies or recordings for later listening or viewing; and rights to reproduce works for production of news and commentary. There is also an enumerated list of users' rights known as the "fair dealing" regime that allows the public to use works for research, private study, education, parody or satire in certain circumstances.
Users' Rights an Integral Part of Canadian Copyright Law
Users' rights have long been an integral part of copyright law in Canada although it has evolved over time and with advancements in technology. The most recent changes to users' rights in Canada were in 2012 when Parliament amended the Copyright Act to add education, parody and satire as part of the fair dealing regime. Following these amendments, which are still quite recent in terms of the evolution of the law, stakeholders on all sides of the issue have been advancing their positions both in courts and to Parliament.
The question of whether users' rights and fair dealing in particular should be broadened or limited was a central issue in the legislative review of the Copyright Act conducted by the previous federal Parliament. In conducting this review, the Industry and Heritage Committees both reviewed the Act and heard testimony from many stakeholders but ultimately produced conflicting recommendations as to how Parliament should treat users' rights in Canada going forward. Both committees published their reports just before the recent election, which dissolved that Parliamentary session. Thus, the new Parliament is not obligated to respond to these reports although the mandate letters for the Ministers of Canadian Heritage and Innovation, Science and Industry directed the two Ministers to work together to review the Copyright Act.
Canada is not the only country having this conversation. The U.S. also recognizes users' rights, including a "fair use" regime that has some similarity to Canada's "fair dealing" regime, albeit with important distinctions. Variations of users' rights are also recognized in Australia, New Zealand, Singapore, India, South Africa, the United Kingdom, Israel, Malaysia, Poland, and South Korea although each country's approach is unique.
IP Law Increasingly Important to Trade Negotiations
As the world becomes increasingly globalized and technology continues to advance, intellectual property law is becoming a significant part of multilateral and bilateral trade negotiations and agreements. The Canada United States Mexico Agreement, or CUSMA (and its predecessor the North American Free Trade Agreement, NAFTA), the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the Canada-Europe Comprehensive Economic and Trade Agreement (CETA), have each dedicated entire chapters to intellectual property rights. There are also numerous copyright-specific treaties negotiated and implemented through the World Intellectual Property Organization (WIPO) that address topics ranging from the protection of the rights of performers to the duration of the term of protection.
Yet, despite the recognition of users' rights in many countries, these do not feature in any prominent way in these trade agreements. The most recent of these, CUSMA and CPTPP, broadly recognize that certain uses of works may be permissible but leave specifics as a matter for legislation of each member country. The WIPO Copyright Committee has been discussing the possibility of harmonizing limitations and exceptions for several years but there is no consensus on whether to formalize the approach in an international agreement. The law of users' rights thus remains, despite international trade implications, a domestic issue open to each national legislator's construction.
There is, however, one recent development in this area that may indicate a growing willingness to consider a harmonized approach to users' rights. The Marrakech Treaty, which entered into force in 2016, introduced a standard set of limitations and exceptions to copyright rules that allow for the reproduction and distribution of works in formats accessible to people who are blind or visually impaired or who have a physical disability that prevents them from reading. To date, this remains the only international agreement that addresses users' rights, albeit in this specific context.
A consistent, coherent international approach to users' rights will become more important as copyrighted works continue to circulate digitally without regard for international borders. With the rise of artificial intelligence (AI) in particular, stakeholders participating in the legislative review in Canada have asked that users' rights in Canada be expanded to allow for an AI to view or analyze copyrighted works without this infringing copyright, as AIs need to "use" large volumes of works in order to learn. With AIs accessing works on the internet and then in turn disseminating the results around the world, a consistent international approach to users' rights will become increasingly necessary. This is also an ongoing issue in more traditional industries, such as educational publishing, as publishers may sell their works in multiple jurisdictions, each of which may have a different approach to users' rights in the education sector.
The COVID-19 pandemic has only solidified what was already very much a digital world and has put the spotlight on the importance of intellectual property rights, including users' rights. There has been a proliferation of online offerings as Canadians move education, businesses, entertainment and services online. All of these offerings from online teaching to online fitness classes to online tours of museums and art galleries can impact intellectual property rights and copyright in particular. Education especially has had to adapt very quickly and is making new and innovative uses of teaching materials.
The debate in Canada, at least at the political level, is currently on hold as we wait to see when or whether Parliament will introduce legislation to address any of the issues identified in the Industry and Heritage Committee reports. But if Parliament does consider this issue, it should do so with a view to international developments in this area and whether an international approach to users' rights may be on the horizon.
Alexandra Logvin is counsel with the Fasken Ottawa office and practices predominantly in the areas of commercial litigation, arbitration, international trade and investment law. She sits as a member of the International Chamber of Commerce (ICC) Canada Arbitration Committee, a member of the Membership Committee of the County of Carleton Law Association (CCLA), and as a director of the Ottawa chapter of the Organization of Women in International Trade (OWIT), the Canadian Council on International Law (CCIL) and the Ottawa chapter of the Canada Eurasia Russia Business Association (CERBA).
Stacey Smydo is an associate with the Fasken Ottawa office who practices with our Communications Law group with a particular emphasis on copyright and trade-mark law. Stacey focuses on copyright litigation and has acted in matters before the Federal Court, Federal Court of Appeal, and the Copyright Board. She also works in government relations on copyright law reform.
---
Thank you to J.Aidan O'Neill and Gerald (Jay) Kerr-Wilson for your contributions to this article
To read the full Capital Perspectives: Ottawa Newsletter, please click here (PDF).
