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C4C’s Comments to Canada’s Copyright Term Extension Consultation

The Canadian Government is consultingextended deadline: 31 March 2021, 11:59 pm local time – on implementing its commitment under the Canada-US-Mexico Agreement (CUSMA) to extend its general copyright protection term  from 50 to 70 years after the life of the author by the end of 2022.

Professor Michael Geist (Ottawa University) highlighted “the timidity of the recommendations”, a view C4C shares. He notably pointed out the Government’s reluctance to follow recommendations by the Canadian Industry Committee to mandate registration for the additional 20 years protection.

C4C responded to the consultation to make it clear that the best way forward is no term extension, but if the government goes ahead, at the very least, damage control measures are required. See also Creative Commons’ submission focussing on how extending copyright’s term harms the public domain.

Our recommendations

At a principle level, we believe  there should be no extension of the term of protection of copyright beyond 50 years for two main reasons:

  1. The lack of sound legal and economic arguments for a term extension.
Did you know that: The economist Rufus Pollock demonstrated in a 2009 paper titled ‘Forever Minus a Day? Calculating Optimal Copyright Term,’ that the optimal copyright term is actually only 15 years.
  1. The current protection terms are already too long.
Did you know that: Lengthy protection terms lead to outcomes such as the so called ‘20th century black hole’ when it comes to online availability of copyrighted works. This black hole notably means that there are significantly fewer works from the mid to late 20th century available on europeana.eu than works from the centuries before (many of which are clearly in the public domain) or from the 21st century (many of which are still available commercially and whose rightholders can generally be contacted quite easily).

However, it is our understanding that due to ill thought commitments in a trade agreement, the Canadian government may not be in a situation where it can avoid such an extension.  Whilst we regret the fact that such a commitment was made, C4C considers the Canadian government must now focus on mitigating the negative effects stemming from it.

  1. At a minimum, such an extension should not be retro-active.
Our view: Refraining from retro-actively extending protection terms also ensures that the current status-quo of the public domain is safeguarded, whilst recognising its function as a stimulus for creativity. From a user/creator perspective, public domain works are a key foundation on which both old and new forms of expression (such as remix) can flourish thanks to the lack of copyright restrictions. The longer the copyright term, the less public domain works are available for distribution, use and re-use.
  1. An active act of registration by a rightholder to benefit from such an extension after 50 years (or for that matter even earlier) should be required.
Our view: We agree with the 2019 recommendation issued during the copyright review process led by the Canadian Industry Committee that states: “The Committee believes that requiring rights-holders to register their copyright to enjoy its benefits after a period equal to the life of the author plus 50 years would mitigate some of the disadvantages of term extension, promote copyright registration, and thus increase the overall transparency of the copyright system.”
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CJEU Does Not Follow Advocate General on Linking: Latest Copyright Ruling Preserves “Traditional” Linking but Opens the Door to Technical Protection Measures

Brussels, BELGIUM – Today, 9 March 2021, the Court of Justice of the European Union (CJEU) issued after almost two years its long awaited ruling in the VG Bild-Kunst case (C-392/19). The judgement is obviously limited to the case at hand and constrained by the questions put forward in the request for a preliminary ruling by the German Federal Court of Justice (Bundesgerichtshof – BGH).

The following statement can be attributed to Ms Caroline De Cock, C4C coordinator:

“The CJEU’s reasoning builds on previous cases such as Svensson (C-466/12) and GS Media (C-160/15), that all recognize the importance of allowing mainstream linking to continue on the Internet. The impact of this decision does not affect plain vanilla linking and embedding done by millions of users every day, without any copyright related implications.

“The Court does not close the door to hotlinking infringing copyright, but only if rightholders use specific ‘technical protection measures.’ It seems to reject the AG’s dangerous interpretations that (i) copyright owners cannot be asked to ‘opt-out’ but must ‘opt-in’ to allow this type of links (ii) ‘non-clickable’ links are always an infringement.”

As is often the case, the CJEU has responded to a specific set of questions related to a very narrow situation of hotlinking and circumvention of protection measures against framing, confirming that a licensee needed to do more to protect images that were licensed to it when putting them online. The dispute concerned the need for technical protection measures to be implemented by a licensee of VG Bild-Kunst, who considered the licence requirement imposed by the latter to be unreasonable. In the case at hand, VG Bild-Kunst had asked its licensee to ensure that the images could only be viewed on the original website, a condition which the licensee failed to meet.

The CJEU ruled that “where the copyright holder has adopted or imposed measures to restrict framing, the embedding of a work in a website page of a 3rd party, by means of that technique, constitutes making available that work to a new public, which must therefore be authorised,” hence following the reasoning set out in Advocate General Szpunar’s opinion

As regards linking, the case related to a very specific and narrow type of linking, namely “hotlinking” or “inline linking,” whereby a webpage contains graphics or audio-visual elements as embedded files that display automatically but without the user of a page seeing the original link or webpage at the source. This practice is extremely rare online and is fundamentally different from more mainstream linking such as embedding or framing of for example an Instagram post or a Scribd document on a webpage, where the link to the original website is apparent to the user and can be reached by clicking on it.

C4C is a broad-based coalition that seeks an informed debate on how copyright can more effectively promote innovation, access, and creativity. We bring together libraries, scientific and research institutions, digital rights groups, technology businesses, and educational and cultural heritage institutions that share a common view on copyright.

For press inquiries on this please contact Ms De Cock at secretariat@copyright4creativity.eu or +32 474 84 05 15.

[Note: We are still analysing and reserve the right to update based on full ruling.]