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What the Canadian Copyright Act Fails to Recognize: The Intellectual Properties of Research and Scholarship

This post forms part of what is now a series of arguments for reforming intellectual property law in Canada (and elsewhere) to better serve researcher and public interests in the publishing of research and scholarship. Given this country’s statutory review of the Copyright Act during 2018, I have submitted a brief to the Parliamentary committee on this theme, while utilizing this series of posts to focus on particular parts of the argument, in this case, the Act’s failure to recognize changes in how research and scholarship circulate even as such works represent a major Canadian undertaking and investment.

While Canada’s Copyright Act is short on purpose and intent in its preamble (which is “an act respecting copyright” in its entirety), it is rich in its definition of intellectual property types. The Act begins with definitions that identify and set apart architectural work, artistic work, chart or plan, choreographic work, cinematograph film, compilation, computer program, dramatic work, engravings, exhibition, map, musical work, novel, photographs, plates, repair manual, sculpture, sheet music, and sound recording. The Act does allow that “every original literary, dramatic, musical and artistic work includes every original production in the literary, scientific or artistic domain.” Yet this seems a bit of a contrivance, as scientific works are not normally counted as literary, dramatic, musical, or artistic. But then the “scientific domain” hardly covers the whole of research and scholarship, and a further reference to “works relative to geography, topography, architecture or science” does not help. On the one hand, the references to “geography” and “topography” make it clear that copyright applies to maps (which might otherwise be seen as a collection of facts), on the other hand, the naming of these two sciences only emphasize the absence of history, philosophy, and scholarly inquiry more generally. At best, the unnamed disciplines can be said to fall into the latter half of the category “a novel or other non-dramatic work.”

That research and scholarship have not received their due in the Copyright Act only matters because, in the digital era, they no longer operate like the literary, dramatic, musical, and artistic works under which they are lumped. With the Arts, the digital era is leading to calls for extending copyright restrictions on behalf of owners, as in the case of music streaming, for example. Something very different is afoot with scholarly publishing. What is best for advancing research and scholarship, it is now widely recognized by researchers, funding agencies, and publishers, is to offer the world immediate and free public access. The Copyright Act is but an impediment to such a goal, as it only recognizes the owner’s right to restrict access to those who can pay whatever fee is set, until such rights end 50 years after the death of the researcher (or the last researcher standing with co-authored papers).

My recommendations for copyright reform (which I have introduced briefly in earlier posts and intended to return to in more detail in later posts) have two parts: make immediate online access to research and scholarship a public right; ensure publishers are fairly compensated for their services (by those who have paid for their services in the past). There are precedents and technologies for doing this, but here I want set out why this area of intellectual property production merits change in Canadian law, even as it will soon need to be a matter of global change and international agreements given the global nature of this work. One reason it merits Canadian action, in parallel with and ahead of other jurisdictions, is the scale of the country’s involvement in the production of research and scholarship.

The Canadian Association of University Teachers, which also represents librarians and other academic professionals, has 70,000 members. By comparison, the Canadian Federation of Musicians has in the area of 17,000 members. According to Scimago, Canadian researchers and scholars produced 89,325 citable items in 2017, including articles, reviews, and conference papers. This makes Canada the seventh largest producer of research and scholarship in the world (as assessed by both Scimago and Nature). Canada is otherwise 38th by size of population and 20th in book production (although there are inconsistencies in the years assessed). The current Canadian government is committed to investing $4 billion over the next five years to research, without adequate intellectual property law to make the most of this investment. Efforts underway today to improve the Act’s service to the Arts (which have been allocated $1.9 billion by the government over the same period) may end up making it that much harder for research and scholarship to circulate on a different basis.

There are grounds, then, for ensuring that Canada’s Copyright Act is further updated for the digital era, not just for its traditional categories and types of intellectual property, but through its proper recognition and fostering of one of the country’s principal intellectual property contributions to knowledge and a greater understanding of the world we live in.

Comments

  1. “My recommendations for copyright reform […] have two parts: make immediate online access to research and scholarship a public right; ensure publishers are fairly compensated for their services (by those who have paid for their services in the past).”

    That sounds great in theory, but how and who pays for it? That’s the devilish details. You can look at digital tech and argue the cost of publishing is low, but what about research funding? If I fund research and want exclusive access to the results or publishing rights, that is a matter of K – having some overriding statutory publication clause is going to reduce my funding value proposition. I support the idea wholeheartedly, but I worry it presupposes some magical source of funding to make it all work that is more legal unicorn than workhorse.

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