November 10, 2021

Library Futures Files in Crucial Canadian Copyright Case

In order to fulfill our mission and to promote a balanced copyright regime worldwide, on September 15, the Supreme Court of Canada granted CALL/ACBD and Library Futures Institute leave to intervene in Canadian Supreme Court Case Society of Composers, Authors and Music Publishers of Canada, v. Entertainment Software Association. And on October 27 the factum was officially filed on behalf of CALL/ACBD and Library Futures Institute. (For non-Canadian lawyers and friends a “factum” is the written argument that is provided to the judge, before they listen to the lawyers argue the case.)

This case is about the "making available right” under international copyright law, which grants authors the exclusive right to authorize distribution of their works in a digital format. In this case, various rightsholders in the music and entertainment industry are arguing for an overly broad definition of “making available.” Their reading of this right would jeopardize the ability for libraries and legal information providers to provide access to legal information or for libraries to use innovative means to provide access to their holdings to the general public, on demand and over the internet. If the case is successful, rightsholders would be paid twice when a work is shared on the internet – once when posted and again when material is downloaded or accessed.

An overly broad interpretation risks the creation of two separate rights (and fees) for a single activity. The risk, therefore, in this case twofold: First, that a mere hyperlink could suddenly amount to “making available on demand,” triggering double unnecessary fees, irrespective of whether any reproduction or infringing download occurs. Second, for libraries in the United States, this could mean that a payment (or permission) obligation will be triggered with Canada, affecting cross-border interlibrary loan and document delivery. These critical library services have been using internet based links for decades to deliver resources to patrons, and the idea of a “double fee” being applied has great implications.

This case could also impact the adoption and use of controlled digital lending by libraries, archives, and other cultural institutions, as over 100 organizations in the U.S. and Canada are already using a CDL system to increase access to works. This could also prompt lobbying for similar interpretations or restrictions to Section 108 of the Copyright Act. While the United States has a different reading of “making available,” rightsholders have strongly lobbied for the interpretation at issue in this case, and there is concern that the precedence could change US Copyright Law for the worse.

CALL/ACBD and Library Futures Institute assert that the weight of authority, a plain reading of the law, and the Supreme Court of Canada's own caselaw, favors the interpretation that there is no new right under the present “making available” law.

Interestingly enough, SOCAN and Music Canada have filed replies to the CALL/ACBD and Library Futures Institute factum. They examine the library exceptions in Canadian law and offer their own interpretation of the “making available” right.

The next step for the CALL/ACBD and Library Futures Institute team is to prepare for oral arguments based on the factum and the replies that received. The appeal is tentatively listed for hearing in January 2022.

We are proud to stand with our Canadian colleagues in fighting this case and will keep our community updated on any movement.

Read the motion here.

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