Copyright and the AODA

In Ontario, the year 2012 was something of a perfect storm for accessibility and copyright in libraries. The Accessibility for Ontarians with Disabilities Act (AODA) – while passed in 2005 – only started to have its standards come into effect in January 1, 2012.  This was the first date on a march of annually enacted standards (every January 1st) on the way towards a fully-accessible province in 2025.

In copyright, 2012 saw the passage of the Copyright Modernization Act, as well as the so-called “pentalogy” of landmark Supreme Court of Canada decisions that significantly altered (and broadened) the landscape of copyright as it pertains to education. Where it had previously been necessary to deal with copyright collectives such as Access Copyright to ensure that the use of material for teaching, learning, and research complied with Canadian copyright law, the expanded fair dealing provisions that came with the changes in 2012 have significantly altered that relationship.

Disruption and Opportunity

As with any form of disruption, these changes have had the effect of providing tremendous opportunities, but have also significantly muddied the waters.

Long-established best practices are no longer necessarily best practices, and a cacophony of voices and approaches filled the void, making it extremely difficult to tune out the noise and determine what is best for individual libraries. The spectre of fines for non-compliance in accessibility (with a maximum of $100,000 a day) and a litigious environment in copyright further spurred this sense of urgency. The typical parsing of the two into separate and unrelated issues is understandable, but in fact, they are actually closely inter-related.

While compliance with the AODA could be made easier by publishers ensuring that digitally-born works are made commercially available in file formats that are accessible by assistive technologies, the fact is that many do not (and in my opinion, are missing out on a valuable revenue stream at a time when traditional publishing is supposedly endangered).

A common justification that is cited for this revolves around concerns about intellectual property and the potential abuses that could be conferred upon an accessible text file. The fact is that both the AODA and the Copyright Act state that if it is necessary to convert a file – even one that is protected by a digital lock – to make it accessible, then an individual (or person acting on that individual’s behalf) may do so. This is true not just for digitally-born materials, but for legacy collections as well. The primary exception is a “cinematographic work” exception in the Copyright Act (which probably conflicts with the multimedia conversion requirements in the AODA but, due to the Constitutional division of powers, the Copyright Act wins).

Copyright and Accessibility

I think that it is a tactical mistake to think of and treat copyright and accessibility as entirely separate discussions, as a harmonized approach would allow for greater clarity and understanding of the relative challenges and opportunities.

By looking at each of copyright and accessibility as a stand-alone entity, it is entirely possible to miss out on or be unaware of the nuances that are visible when viewed together. Indeed, it can be argued that the legitimacy for the accessible text provisions that are set out in the AODA are found not in the AODA itself, but rather in the Copyright Act. Given the reluctance of publishers to accede to requests for the provision of accessible material, it is then necessary to manipulate copyrighted material without the express consent of the rights holders to create accessible materials.

The Copyright Act contains provisions in s. 32 and s. 41.16(1) that provide fair dealing and digital lock exceptions, respectively, that allow for the creation of accessible material by users with perceptual disabilities or those acting on their behalf. While the AODA provides guidelines for the creation of this material, due to the constitutional division of powers, it is up to the Federal government to legislate on issues pertaining to copyright.

If there is a weakness in the Copyright Act’s accessible text provisions – as opposed to the AODA’s – it is that the explicit connection to the creation and provision of accessible material could be strengthened.

The Marrakesh Treaty

The future is likely to be found in the the Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities. The treaty was signed in Marrakesh, Morocco on June 28th, 2013, and it is intended to address the issue that is a lack of accessible material for users who are not only blind, but who are unable to physically hold or manipulate a book or who have learning disabilities. Given that at the moment it is thought that only seven percent of published books are available in accessible formats, it is necessary that wherever possible a broader definition of accessibility be applied in order to try and close these gaps.

The basic framework of the treaty is to create an exception to copyright in order to allow the creation of works that are accessible to users to require it. It also allows for the import and export of these works.

Although it is a landmark treaty pertaining to accessibility, it is notable (and highlights the relationship) that is part of the World Intellectual Property Organization’s portfolio of copyright treaties. From a copyright point of view, the treaty is significant as it is the first international treaty that focuses on user’s rights, as opposed to creator’s rights. This distinction highlights why there was resistance to the treaty from publishers and the film industry. Unfortunately, the latter was successful in ensuring that audiovisual material such as films do not fall under the definition of “works” under the treaty. In terms of what is covered, there is text, related illustrations, and audio formats – which includes audio books. Furthermore, IFLA was instrumental in lobbying to include libraries as an authorized body to undertake the task of the creation and delivery of this material.

The downside to all of this work, however, is that the treaty, while signed, has not yet gone into effect – and has a way to go in order to cross that threshold. In order for the treaty to come into effect, 20 countries have to ratify it, and the current ratification total stands at ten – and includes Argentina, Uruguay, the United Arab Emirates, Mali, Paraguay, India, Singapore, Mongolia, Mexico and El Salvador.

Canada did not even sign the treaty, which is particularly odd given that it played a significant role in the horse-trading necessary to get a deal. However, the Federal government announced in April that it intended to amend the Copyright Act to fulfil the requirements for ratification. Unfortunately, this would have been achieved through attachment to the spring budget which, of course, died on the order paper when the election was called.

I am optimistic that this initiative will be back on the table, as the necessary changes are relatively minor due to the existing language in the Copyright Act. After these necessary changes are enacted, accessible texts will be (even more) firmly entrenched into the Canadian copyright framework.

Stephen Spong is the Copyright Services Librarian at Centennial College where he is responsible for copyright and accessibility policy development, advocacy, outreach and licensing. He holds an M.I. from the University of Toronto’s iSchool and a J.D. from Osgoode Hall Law School. Stephen can be contacted at sspong [at] or on Twitter @thelibeerian.

Copyright in Photographs in Canada Since 2012

Photographs perform a unique function because they capture moments in time and that capture is contemporaneous with the subject of the photo: “[a] writer doesn’t necessarily have to be there to produce a story. A photographer, on the other hand, must be at the event when the event happens.”

In 2012, the Copyright Modernization Act changed the Copyright Act in terms of application to photographs.  This column will first discuss how copyright now applies to photographs in Canada (who owns copyright and how long it lasts) and then describe the new users’ right now available in respect of commissioned photographs.

Margaret Ann Wilkinson (mawilk [at] is Canadian Library Association Copyright Advisory Committee editor for The Copyright Column. These copyright columns are authored or co-authored by members of CLA’s Copyright Advisory Committee and are published after peer-review by the rest of the Committee. The opinions expressed in these columns are those of the authors and do not represent the position of the Committee, of CLA or of OLA on any given topic. No column is intended to provide legal advice.

The history of photographs in Canadian copyright law is complicated. In the past, the Copyright Act gave “unique treatment to photographic works in three main areas: authorship, term of protection, and ownership.” Industry Canada has attributed that old Parliamentary attitude to copyright in photographs to the days “when photography was commonly regarded as an industrial operation rather than a potential art form and when the inadequacy of early photographic equipment restricted a photographer from expressing ‘originality’ in his or her work.”

Pile of photographs

As this column will fully explain, the result of the 2012 statutory amendments is that the treatment of photographs under the Copyright Act was changed so that there is now no difference between the treatment of a photograph and the treatment of any other work.  These changes came into effect on November 7, 2012 but they affect all photographs in existence in Canada as at that date.  This does not mean that all photographs in existence in Canada are now in copyright:  but it does mean, as fully explained in this column, that:

All photographs are in copyright in Canada if the photographers are still alive; and
All photographs are in copyright in Canada if their photographers have died within the past 50 years.

No photographs are in copyright in Canada, at the time of publication of this column, if their photographer died more than 50 years before December 31 of this year (2015).  Moreover, as the column begins by explaining, all photographs in Canada are now owned by the photographer who took them, from the time of the taking of the photograph – unless that photographer took the photograph as an aspect of her or his employment, in which case, though the photographer remains the “author” of the photograph, the initial ownership of the copyright in the photograph will lie with the employer (even if that employer is a corporation rather than an individual). The ownership of the copyright in a photograph in Canada now has no relationship to the question of how long the copyright in that photograph lasts: even where a corporation has come to own copyright in a photograph (either because it was taken as part of the photographer’s employment or because the photographer later transferred the ownership of the copyright to a corporation), how long the copyright in that photograph remains a function of how long the photographer lives (and lasts for 50 years after that photographer’s lifetime).

These are dramatic changes and there is some confusion in the literature about them, as will be discussed.  The result is that some photographs that have previously been in the “public domain” in Canada, unencumbered by copyright, are now no longer able to be used without permission of the copyright owner.  The other result is that whereas people who commissioned photographs in Canada generally became the owners of copyright in those photographs, this is not the case now in Canada.  However, as will be explained at the end of this column, Parliament has now created a new, specific, users’ right for those who have commissioned photographs.

[Editor’s Note: Open Shelf is collaborating with the CLA Copyright Advisory Committee to publish their authoritative and insightful articles regarding copyright issues in Canada. These contributions are longer than typical Open Shelf articles, and contain the appropriate references and footnotes necessary to fully discuss issues regarding copyright. As a result, only the “Introduction” to this article is published here. The full article is available as a PDF via the link below.]

Copyright in Photographs in Canada Since 2012
by Margaret Ann Wilkinson, Carolyn Soltau and Tierney GB Deluzio

Margaret Ann Wilkinson, Professor of Law and Director of the Intellectual Property, Information & Technology Area at Western Law, is a past winner of the OLA Les Fowlie Intellectual Freedom Award and has worked with IFLA at World Intellectual Property Organization meetings in Geneva. Dr. Wilkinson’s article, with Tierney GB Deluzio, on “The Term of Copyright Protection in Photographs” is forthcoming in the Intellectual Property Institute of Canada’s Canadian Intellectual Property Review.  

Carolyn Soltau is currently a Research Librarian with The Province newspaper and also works as Reference Librarian at Douglas College and Kwantlen Polytechnic University. She is a member of the Canadian Library Association Copyright Advisory Committee and is the Vancouver Director for the Special Libraries Association Western Canada Chapter. She holds a Bachelor of Arts in History and a Master of Library and Information Science from the University of British Columbia.

Tierney GB Deluzio is a second year law student at Western University. Prior to law school, Tierney completed a Bachelor of Engineering Science, specializing in biochemical engineering, and Master of Engineering Science, with a focus on biomedical applications. Already a member of the Professional Engineers of Ontario Student Membership Program, Tierney is now looking forward to working in law firm Smart & Biggar’s Toronto office in the summer of 2016.  

The Public Lending Right in Canada: a Librarian’s Perspective

2011 was the 25th anniversary of the establishment of the Public Lending Right (PLR) in Canada.  The 25th anniversary was cause of much celebration among writer’s groups and especially The Writer’s Union of Canada (TWUC), which fought so hard for establishment of the PLR.  The PLR was seen as a major accomplishment for stabilizing the income of Canadian authors.  Among librarians, the 25th anniversary was mostly ignored.

Margaret Ann Wilkinson (mawilk [at] is Canadian Library Association Copyright Advisory Committee editor for The Copyright Column. These copyright columns are authored or co-authored by members of CLA’s Copyright Advisory Committee and are published after peer-review by the rest of the Committee. The opinions expressed in these columns are those of the authors and do not represent the position of the Committee, of CLA or of OLA on any given topic. No column is intended to provide legal advice.

Public-Lending-RightThe PLR is based upon the idea that libraries deprive authors of book sales by circulating books.  According to this theory every library circulation of a book deprives the book’s authors (and publishers) of a sale.  Therefore, according to the theory, authors deserve to receive compensation for these lost sales.  This is the foundation of the PLR.  While Canadian authors may think of the PLR as an actual right that is either part of copyright law or other law, in fact, in Canada it remains a voluntary government program funded from general revenues, based upon library holdings (rather than circulation), that can be cancelled at any time. Indeed, even in Europe, where the PLR is required to be legislated, is does not necessarily form a part of the copyright regime of member states.

Historically, as this column will demonstrate, Canadian librarians have been mostly uncomfortable with the concept of PLR for a number of reasons.

[Editor’s Note: Open Shelf is collaborating with the CLA Copyright Advisory Committee to publish their authoritative and insightful articles regarding copyright issues in Canada. These contributions are longer than typical Open Shelf articles, and contain the appropriate references and footnotes necessary to fully discuss issues regarding copyright. As a result, only the “Introduction” to this article is published here. The full article is available as a PDF via the link below.]

The Public Lending Right in Canada: a Librarian’s Perspective
by Rob Tiessen

Rob Tiessen (tiessen [at] has been a Librarian at the University of Calgary since 1999.  He developed a strong interest in copyright during the 12 years that he was Head of Access Services at Calgary.

Unraveling the Complexity of Music Copyright

In 2014, the Newfoundland and Labrador Department of Education decided that it would like to use the Katy Perry song “Roar” as background music in a video to be created showing how to perform a dance choreographed to “Roar.” The plan was to distribute a link to the video to all schools in the province a month before “violence awareness week” and students would learn the dance in physical education class. The song “Roar”, which is about being your own best champion (“I went from zero to my own hero…”), was carefully chosen by the Department (in consultation with the proposed choreographer).

Margaret Ann Wilkinson (mawilk [at] is Canadian Library Association Copyright Advisory Committee editor for The Copyright Column. These copyright columns are authored or co-authored by members of CLA’s Copyright Advisory Committee and are published after peer-review by the rest of the Committee. The opinions expressed in these columns are those of the authors and do not represent the position of the Committee, of CLA or of OLA on any given topic. No column is intended to provide legal advice.

Musical NotesIt was selected not just for its popularity, but for its message of self-empowerment and standing up for yourself to combat bullying. These sentiments fit perfectly within the violence awareness week’s theme of “Find Your Voice, Not Violence.” The culmination of the idea was that, during violence awareness week, all K-12 students across the province would perform the dance at the same time, flash-mob style, and thereby be united in a message to stop bullying.

The Department was willing to pay to secure the necessary copyright permissions, but, after all copyright holders were identified and contacted, it was unable to create the initial video (setting the proposed choreography to “Roar”) as it could not secure permission from Katy Perry’s record label, Capitol Records.  A year later, the Department is still unable to move forward with its choreographed “flash-mob style” idea, hampered by copyright.

While the topic of copyright, in general, tends to be one that raises a lot of confusion and uncertainty, when the issue involves music, a whole new level of complexity is often introduced. Couple the intricacies of copyright in music with the notion that music is meant to be enjoyed and shared, it is not surprising that a large number of copyright infringement cases reported in the media center on popular music. From the American Napster lawsuit to the recent American suit in which Pharrell Williams and Robin Thicke’s “Blurred Lines” was found to infringe on Marvin Gaye’s “Got to Give It Up”, there have been no shortage of examples of high-profile copyright infringement cases involving music.

Even where there is no infringement, the complexity of music copyright is evident: a New Yorker article about the streaming music service Spotify reported that CEO Daniel Ek grossly under-estimated the amount of time and expertise needed to obtain global licenses from the major music companies: he thought it would take six weeks; it took two years. If the complexities of music licensing and copyright are enough to boggle the mind of a technologist and music company CEO, what about the rest of us?

In November 2012, the Copyright Modernization Act amended s 29 of the Copyright Act to include “education” as an allowable fair dealing purpose. With the addition of “education,” much has been written about the interpretation of fair dealing for educational institutions. However, little guidance has been provided on non-text formats, particularly music. A review of copyright guidelines from the Association of Universities and Colleges of Canada (AUCC) reveals little information on the treatment of music (and what little it does say is discussed further within this column).

The Association of Canadian Community Colleges (ACCC) did have a policy similar to that of the AUCC but, now known as Colleges and Institutes Canada (CICan), it no longer appears to post such a policy on its website. However, in 2012, the Council of Ministers of Education, Canada (CMEC) released a 3rd edition of Copyright Matters!, which does address questions about the reproduction of musical scores, and the performance of musical works. In general, however, one might expect that the best sources of music copyright information would tend to be from specialized organizations such as the Music Library Association (MLA), which features a “Copyright for Music Librarians” resource on its website. However, this resource is U.S.-focused, and is of limited value to educators working with music in Canada, as the copyright laws of the two countries differ. The Canadian Association of Music Libraries, Archives and Documentation Centres (CAML), the Canadian equivalent to MLA, does not provide any resources relating to copyright on its website, although copyright issues are addressed within its membership, either by direct correspondence between members, or via its Listserv.

This column, recognizing a gap in information regarding the treatment of music, will address some of the common issues that arise with music copyright in an educational setting.

[Editor’s Note: Open Shelf is collaborating with the CLA Copyright Advisory Committee to publish their authoritative and insightful articles regarding copyright issues in Canada. These contributions are longer than typical Open Shelf articles, and contain the appropriate references and footnotes necessary to fully discuss issues regarding copyright. As a result, only the “Introduction” to this article is published here. The full article is available as a PDF via the link below.]

Unraveling the Complexity of Music Copyright
by John Tooth, Becky Smith, and Jeannie Bail

John Tooth is the Copyright Officer and Head of the Copyright Office for the University of Winnipeg Library. He is co-chair of the University’s Copyright Committee. In his past life, he was responsible for copyright in Manitoba schools through the Manitoba Department of Education and was the Manitoba representative on the Council of Ministers of Education, Canada’s Copyright Consortium. John is a long standing member of the CLA Copyright Committee.

Becky Smith is the Music Librarian at Memorial University of Newfoundland. She also acts as a liaison for copyright matters for the Music Resource Centre and is a member of the Senate Committee on Copyright.

Jeannie Bail is an Information Services Librarian at Memorial University of Newfoundland. She is a member of the CLA Copyright Advisory Committee, the CAUL-CBUA Copyright Committee, and Chairs the Senate Committee on Copyright at Memorial.

OpenMedia: Why Should Librarians Care?

Anyone who is tuned into recent grassroots actions being taken on behalf of keeping the Internet an open network, like recent protests against Bill C-51, has probably noticed the work of OpenMedia. As a librarian, I wondered who they were and whether we should be joining forces with them. I contacted David Christopher, their Communications Director, and spoke to him on the phone about what the organization is doing and why librarians should care. Our interview has been edited and paraphrased for brevity.

David Christopher

David Christopher

Todd Kyle: So what is OpenMedia?

David Christopher: We are a large community-based organization dedicated to safeguarding the possibilities of the open Internet.

TK: What are some of the issues that you advocate on?

DC: Basically it breaks down into three areas. The first is privacy. We are concerned about recent revelations about government surveillance, the actions of spy agencies, and legislation such as Bill C-51 [aka the Anti-Terrorism Act 2015]. These all create the perfect storm to undermine Canadians’ privacy rights. It’s like in the U.S., where the Patriot Act was even used to demand access to people’s library records.

The second area is copyright. We are concerned that several recent developments in laws will have an impact on people’s right to freedom of expression, of discussion, sharing, and collaboration. For example, the Trans-Pacific Partnership is seeking to extend copyright protection by 20 years.

The third is access to affordable telecommunications services. In Canada telecom is dominated by a few large companies, and we pay the highest rates for these services in the industrialized world. This especially affects low-income Canadians. Top earners can all afford home Internet access, but of the bottom 25% of income earners, only 50% have home Internet access. This cuts people off from something they need to lead their lives.

Open Media

TK: Has the coalition had any success with changing public policy or awareness?

DC: Yes we have. On affordable Internet, we’ve pressured the government on cellphone costs and contracts, and we are just about to celebrate Cellphone Freedom Day because all 3-year contracts will expire and users can now choose a different provider or plan. This all happened because of the CRTC’s new Wireless Code of Conduct, and our advocacy played a large part in that. The CRTC is finally siding with consumers, and that includes their moves towards more wireless choice, having more telecom players in the market.

We’ve also raised awareness about the secret TPP negotiations. There’s a vote coming up in the U.S. that will help determine its future.

Finally, our campaign against Bill C-51 as part of the Protect our Privacy Coalition has turned into a huge one. We have about 230,000 names on a petition prior to the vote in the Senate. This bill is really worrying—under it, if you protest without a permit or whatever, you might be more scrutinized by the government. It’s important to our democracy to protect ourselves against this threat—it could permeate institutions like libraries who hold their communities together.

TK: So on that topic, why should librarians care?

DC: I think our values and the values of the library community are really in sync. Libraries play an important role in our society; in fact, high telecom fees are part of the reason people need to use libraries for Internet access. But these users also should have the same expectation of privacy as people who can afford home access.

Librarians value privacy, and so do we. Your reading history can reveal a lot about you—maybe your sexual orientation, or your political views, and we need to safeguard this. Edward Snowden showed us that if spy agencies collect small bits of data about you—like metadata—they may not say much individually but taken together they can paint a very detailed portrait of an individual.

TK: So how can we get involved?

DC: The most urgent campaign is the C-51 one. On our site there are tools for you to write to senators, MPs, etc. and to write to newspapers. What we’ve learned is that Liberal senators are quite open to voting against C-51 because Justin Trudeau has set them free from caucus, so they are receptive to our arguments. The Greens and the NDP oppose it too, but the government has a large majority. We’re keeping our campaign going straight through to the election in October.

Bill C-51

There’s also our Save the Link campaign. There’s an initiative right now in the E.U. that might undermine your right to link, where you might be liable if you link to copyrighted content. That creates a real chill factor—most of us aren’t qualified to assess copyright. Links are the foundation of the Internet. If you think of the Internet as a map, then links are the roads. Libraries do this too, they do things like suggesting books, a physical series of links just like the digital one. If this discourages people from linking then it would have profoundly negative consequences for global freedom of expression. You can see how to get involved in this at

Todd Kyle is CEO of the Newmarket Public Library and writes the Policy Wonk column for Open Shelf. He blogs at