The Canadian government has launched a consultation to review and potentially overhaul the Copyright Act framework for online services. Stakeholders include a very broad swath of industry players. These range from services that deal with digital content more passively: Internet Service Providers (ISPs), cloud services, web hosting and messaging; to those that deal with content more actively: social media and free streaming platforms; to those that operate in both camps, such as search engines.
The 2012 Copyright Modernization Act amendments were intended to address both “safe harbour” type protections for internet intermediaries, as well as remedies such as a made-in-Canada style “notice and notice” regime for the benefit of copyright owners. In the past decade, services and content available online have evolved and proliferated to a point where the government is now seeking to renew the overall framework, both to catch up with current technologies and business models, and to try to establish an adaptive regime that will better stand the test of time, as things inevitably continue to change. And it is doing so via amendments to the Copyright Act, the Broadcasting Act, and related statutes.
In November 2020, the government tabled amendments to the Broadcasting Act with the objective of regulating digital service providers of audiovisual and audio programming. Bill C-10 purports to “level the playing field” between traditional broadcasters, and online broadcasting undertakings “including those serving Canada from abroad.” At the time of writing this post, the Bill has passed second reading and will be the subject of clause-by-clause consideration by the Standing Committee on Canadian Heritage later this week.
Minister of Canadian Heritage Steven Guilbeault and department officials have also publicly stated that they are in discussions with the governments of Australia, Finland, France and Germany on “ensuring that news organizations are fairly remunerated when their content is shared online.” Government officials have also stated an intention to introduce a bill in 2021 to that effect. The Minister has referred to “a made-in-Canada formula […] similar to what you might have seen move ahead in certain other countries.” The Minister has signaled in appearances before the Standing Committee on Canadian Heritage in January and March 2021 that the bill would be introduced “shortly.”
On the copyright front, the government’s consultation is contemplating the following actions:
“clarify intermediaries’ safe harbour protections against liability for copyright infringement, including how intermediaries’ knowledge of infringement and content-related activities affect their liability as well as their attendant obligations;
compel remuneration of rights holders through collective licensing of their copyright-protected content on certain platforms;
increase transparency in rights holders’ remuneration and online uses of their content; and
clarify or strengthen rights holders’ enforcement tools against intermediaries, including by way of a statutory “website-blocking” and “de-indexing” regime.“
Notably, the availability of third-party website blocking as a copyright enforcement remedy is the subject of an ongoing case before the Federal Court of Appeal. The Court has heard from broadcasters, program rights owners, internet service providers and interveners representing all sides of the issues at stake, from copyright law and policy and the underlying broadcast regulatory regime, to the obligations of online services in other jurisdictions, to net neutrality and freedom of expression considerations.
Comments on the Copyright Act consultation on online intermediaries may be made until May 31, 2021. The government news release is available here.