Important copyright developments happened in three different areas in Canada this month – a consultation, a site-blocking case, and a hearing in the Access Copyright vs York University case.
The Canadian Government’s public consultation on a Modern Copyright Framework for Online Intermediaries ended on May 31. IPA participated with a submission to support our Canadian members ACP, CPC and ANEL.
IPA’s submission recommends several concrete measures required to strengthen the online enforcement legal framework, including through the introduction of a notice and stay down regime, repeat infringer policies and penalties, appropriate ISP liability with safe harbours restricted to technical and passive ISPs. Our submission also supports a site blocking regime be introduced in Canadian law, including dynamic injunctions and expedite administrative processes. IPA also explains why the publishing industry cannot support obligations to license online platforms, either directly or through collective licensing schemes such as ECL, explaining why that would undermine the digital market.
On May 26, the Canadian Federal Court of Appeal affirmed the site blocking order in the Gold TV case, an important victory for copyright owners against online infringers.
And finally, On May 21, the Supreme Court of Canada (SCC) heard appeals from both parties involved in the Access Copyright v York University case, which has occupied IPA’s Canadian members since 2013. In 2017 the Federal Court of Canada ruled strongly in favour of rightsholders on both of the issues in question: the fairness of the fair-dealing guidelines relied on by York University for widespread copying by its faculty and students, and the mandatory nature of tariffs set by Canada’s Copyright Board when owners and users fail to reach agreement on voluntary licences.
In 2020, the Federal Court of Appeal reversed the lower court’s decision on one issue when it decided that Copyright Board tariffs are not mandatory, leading to the SCC hearing appeals related to both issues. The SCC received written submissions and heard oral arguments from York and Access Copyright, along with those of 17 interveners, including a coalition of IPA, IFFRO and IAF; another coalition of the Association of Canadian Publishers, the Canadian Publishers' Council, and the Writers’ Union of Canada; and COPIBEC. A decision is expected before the end of 2021, but Canadian members plan further advocacy work on the questions raised in the case, regardless of the SCC’s decision. The initial trial and subsequent appeals have brought to light important questions around fair dealing for education and the Copyright Board process, at enormous expense and effort, without yet resolving any of them.