On Wednesday, April 14, 2021, the Canadian government launched a consultation on “a Modern Copyright Framework for Online Intermediaries”, seeking comments from the public until May 31. The goal of this consultation is to “ensure that Canada’s copyright framework for online intermediaries reflects this evolving digital world.” Alongside the announcement of this consultation, the government released a paper entitled “Consultation on a Modern Copyright Framework for Online Intermediaries” (the Paper). The Paper provides a background for this consultation and outlines four potential avenues for copyright reform.
The Canadian government is concerned that its current copyright framework fails to strike the correct balance between remunerating copyright holders and safeguarding individuals’ online rights while facilitating a flourishing digital market. The government is particularly concerned with the activities of online intermediaries. It defines online intermediaries as “the entities that facilitate access to the immense and growing volume of content online, including copyright-protected content”. It divides them into those that play a passive role in allowing users to access content, such as internet service providers, and those that play a more active role in curating and presenting content to users, such as social media platforms.
The last major update to the Copyright Act that affected online intermediaries came in 2012. It introduced “safe harbour” provisions that, in most circumstances, shield intermediaries from liability for its users’ copyright infringement. Note that intermediaries are not protected by these provisions if their services are primarily for the purpose of enabling infringement.
Potential Reform Options
In the Paper, the government lays out four potential approaches to copyright reform. These options were informed by other jurisdictions’ approaches, prior consultations with stakeholders, and the reports of two Parliamentary Committees.
- Clarify Intermediaries’ Safe Harbour Protections
One reform option is explicitly to preclude the application of the safe harbour provisions to intermediaries in circumstances where the intermediaries have knowledge of, or are complicit with, copyright infringement on their platforms. The government proposes revoking the protection of the safe harbour provisions in instances where intermediaries had actual or constructive knowledge of infringing activity. Whether intermediaries play an active role in copyright infringing activity by commercializing infringing content, promoting it, or remunerating users who post it may also cost them safe harbour protection. The Paper also contemplates requiring intermediaries to establish their own internal policies for dealing with alleged copyright infringement and serial infringers in order to benefit from the protection of the safe harbour provisions.
- Compel Remuneration Through Collective Licensing
Another reform option would be to compel intermediaries to pay royalties to rights holders through the Copyright Act’s collective licensing framework. This approach would be similar to the one proposed in Senator Carignan’s private member’s bill tabled in February, which we have previously written about. This reform would require intermediaries to pay royalties to collective societies representing rights holders for the use of copyrighted works. The royalty rates would either be negotiated between the collectives and the intermediaries or set by the Copyright Board. This compulsory licensing scheme could be restricted to only certain intermediaries, such as those that provide public access to copyrighted material, profit from copyrighted material, or are of a certain size.
- Increase Transparency in Remuneration Processes
This reform option is intended to level the playing field for bargaining between rights holders and intermediaries. The idea is that if rights holders know how other rights holders are remunerated by intermediaries for the use of their copyrighted material, then the rights holders will be able to bargain more effectively for fair remuneration. The government also contemplates requiring intermediaries to be more transparent about how they handle copyrighted material on their platforms. This requirement includes being more transparent by disclosing: metrics on the use of these materials, disclosing how content is promoted to users, describing procedures for identifying potentially infringing material, and disclosing mechanisms for dealing with potentially infringing material.
- Clarify or Strengthen Enforcement Tools Against Online Infringement
The final reform option in the Paper is to strengthen enforcement tools to combat online infringement. Currently, it is possible in Canada to obtain court-ordered injunctions that require intermediaries to block, remove, or de-index potentially infringing content, as well as court orders to identify infringing users. Rights holders must satisfy the courts’ current tests for injunctive relief, and doing so is often difficult and costly. The Paper discusses the possibility of legislating tests for injunctive relief that are more responsive to the circumstances of online infringement. The Paper also proposes other enforcement strategies, such as lowering the burden to show that a platform is primarily for infringement, updating the criminal offences in the Copyright Act to encompass commercial infringing streaming, and providing options for smaller rights holders to enforce their rights.
The Canadian government seems to be eager to require online intermediaries to pay rights holders more for the use of copyrighted materials. Every proposed reform is aimed at increasing the remuneration of rights holders. Additionally, the proposed reforms appear to be primarily focussed on intermediaries that take a more active role in hosting and promoting copyrighted content. Moreover, there are multiple references in the Paper to these new obligations potentially applying to only certain intermediaries or intermediaries of a certain size, suggesting that the government has particular platforms in mind.
There is no guarantee that any of the proposed reforms in the Paper will become law or, if they do, what form they will take. The consultation period is open until May 31, 2021, and the government is taking comments by email addressed to email@example.com. All comments will be made public following the close of the consultation period.