By: Susannah Tredwell, Manager of Library Services at DLA Piper (Canada) LLP and James Bachmann, Instructional Librarian, Law Library, University of British Columbia

Since 1988, when CALL/ACBD’s Copyright Committee was first set up, CALL/ACBD has advocated for its members' interests in the area of copyright.

While the primary focus of CALL/ACBD’s copyright advocacy over the last few years has been on Crown copyright and primary law, CALL/ACBD has also made submissions about such areas as fair dealing and licencing. CALL/ACBD sees this work as not only supporting the needs of its members but also as serving the interests of access to justice as a whole.

Continuing this work, on January 18, 2022 CALL/ACBD, along with Library Futures Institute, will act as an intervener in the Supreme Court of Canada case Society of Composers, Authors and Music Publishers of Canada, et al. v. Entertainment Software Association, et al. Kim Nayyer, CALL/ACBD’s President, and Robert Janes of JFK Law will be representing CALL/ACBD and Library Futures.

This case addresses the question of how the concepts of “communication to the public by telecommunication” and “making available on demand” as used in the Copyright Act should be understood.

The outcome of this case has the potential to significantly impact various library activities, including controlled digital lending and possibly even the simple use of hyperlinks, particularly in light of the limited scope of current library and education exceptions in the Copyright Act.

CALL/ACBD's submitted that the court refrain from broadly construing the terms “making available” and “Communication to the Public by Telecommunication” and that s. 2.4(1.1) of the act ("Communication to the public by telecommunication") does not need to be understood as creating a new right.  

You can find CALL/ACBD’s intervener's factum at https://www.scc-csc.ca/WebDocuments-DocumentsWeb/39418/FM050_Intervener_Canadian-Association-Law-Libraries-et-al.pdf. The other factums in this case are available at https://www.scc-csc.ca/case-dossier/info/af-ma-eng.aspx?cas=39418. 

CALL/ACBD has acted as an intervener at the Supreme Court of Canada on two other occasions.

In Keatley Surveying Ltd. v. Teranet Inc., which looked at Crown copyright, CALL/ACBD submitted that “s. 12 Crown copyright does not extend to primary sources of law”.

In York University v. Canadian Copyright Licensing Agency ("Access Copyright"), CALL/ACBD submitted that the SCC “should resist the temptation to modify or clarify the existing fair dealing test” stating that the existing test “is a flexible multifactorial test that allows libraries (and other institutions) to tailor access and appropriate copying policies that consider all relevant circumstances.”

CALL/ACBD also made submissions to the 2018 review of the Copyright Act, R.S.C. 1985, c. C-42: one general submission and one submission focussing on whether copyright subsisted in “primary law”. Kim Nayyer, then co-chair of the Copyright Committee, testified before the Standing Committee on Industry, Science and Technology regarding interlibrary loans, fair dealing, overriding licence provisions, and crown copyright.