{"id":265242,"date":"2017-06-19T10:30:54","date_gmt":"2017-06-19T14:30:54","guid":{"rendered":"https:\/\/policyoptions.irpp.org\/issues\/once-more-into-the-copyright-breach\/"},"modified":"2025-10-07T21:39:45","modified_gmt":"2025-10-08T01:39:45","slug":"once-more-into-the-copyright-breach","status":"publish","type":"issues","link":"https:\/\/policyoptions.irpp.org\/fr\/2017\/06\/once-more-into-the-copyright-breach\/","title":{"rendered":"Once more into the copyright breach"},"content":{"rendered":"

Once again \u2013 as mandated by legislation \u2013 the Copyright Act<\/em> will be subject to review. This time around, a committee of the Senate or the House of Commons (or both) will supposedly take the lead rather than ministers, as was previously the case. However, the responsible ministers clearly can and likely will play a key role in this exercise, perhaps including appearing at committee hearings, providing expertise, and drafting any legislation or regulatory changes that may result from this process.<\/p>\n

Overall, it remains a mystery how the review will unfold. Since the 2012 legislation was passed, only the Senate Banking, Trade and Commerce Committee has publicly shown any active and serious interest in the copyright dossier. This culminated with a very critical report in 2016<\/a> about the Copyright Board. Engagement by this Senate committee over the long term might be a positive development. There are some very sophisticated senators and most of them will be there for a long time to come, unlike ministers and senior officials, who inevitably come and go.<\/p>\n

Ironically, the most pressing problems of copyright law in Canada today \u2013 namely the operation of the Copyright Board and the \u201cnotice and notice\u201d regime (both discussed below) \u2013 can be dealt with outside of the review process, without legislation. The authority to implement the necessary regulations is already in place.<\/p>\n

That is not to say that these issues won\u2019t be or shouldn\u2019t be dealt with in this process. However, regulations implemented pursuant to existing legislative authority do not require the involvement of Parliament. There is a mandatory process that includes consultation<\/a>, but the responsible minister \u2013 in this case, Navdeep Bains, of Innovation, Science and Economic Development \u2013 can do essentially whatever he wants, as long as it is consistent with the legislation, without Parliament. (He would, of course, very likely consult with Minister of Heritage, Melanie Joly.)<\/p>\n

Here\u2019s my assessment of what can be changed through regulation, what might give rise to calls for legislative amendment, and what\u2019s brewing in the courts and at the Copyright Board that might require a legislative response.<\/p>\n

Fixing the Copyright Board through regulation<\/strong><\/p>\n

According to the Senate Committee Report<\/a>, \u201cThe Copyright Board of Canada plays a pivotal role in Canada\u2019s cultural sector. Yet, from what the committee heard, the Board is dated, dysfunctional and in dire need of reform.\u201d<\/p>\n

I would not go quite so far as to say that it is \u201cdysfunctional.\u201d Rather, it functions in a uniquely slow, costly, indecisive and increasingly unpredictable manner that that is inexplicable, unacceptable and unsustainable. It typically takes more than four years for the board to get to a hearing on a contested tariff, and at least another two years for a decision to be rendered. That decision is then inevitably retroactive for several years and too often requires and results in successful judicial review by the Federal Court of Appeal. Fortunately, as a result of the submissions of my clients<\/a> (the Centre for Intellectual Property Policy and Ariel Katz), the retroactivity issue is now flashing on the Supreme Court\u2019s radar screen<\/a>. However, to avoid more uncertainty and litigation, this problem should be solved now with regulations.<\/p>\n

The Copyright Board\u2019s performance, as it is objectively measurable, does not stand up to comparison with the measurable performances of other tribunals, for example, the Competition Tribunal<\/a>, which has even more complicated cases, a greater case load, and less resources.<\/p>\n

I suggested to the Senate<\/a> that most of what is wrong at the Copyright Board can be fixed quite easily through regulation, for example, introducing fixed timelines for all parties (and the board itself) to complete each procedural step. More resources and more study are absolutely not <\/em>needed and not<\/em> the answer. Legislation may be required in the long term to deal with \u201cmachinery\u201d issues such as merging the board with another tribunal. However, this could take many years. Regulations can and should be implemented as soon as possible to deal now with the pressing problems with the board.<\/p>\n

The \u201cnotice and notice\u201d regime and regulatory solutions<\/strong><\/p>\n

Canada has a \u201cnotice and notice\u201d regime, which allows copyright owners to require Internet service providers (ISPs) such as Bell and Rogers to forward notices to subscribers when it is alleged they have infringed copyright. The system is being abused by some companies that attach inappropriate and sometimes absurd settlement demands (even referring to American law) to the notices that ISPs believe must be forwarded to subscribers. Most \u2013 but not all \u2013 recipients of such notices have learned<\/a> they can safely ignore these demands, and do not respond. Without a court order, an ISP cannot disclose a customer\u2019s identity. Even the government tells subscribers that they don\u2019t need to respond to these notices, and some responsible ISPs do provide this government link<\/a> to their subscribers or otherwise inform them of their rights.<\/p>\n

The government can and must implement regulations that forbid the inclusion of extraneous \u201csettlement demands\u201d in any such notices, or at least require the inclusion of prominent language informing the recipient of their right to simply not respond to the notice in any way and to ignore any settlement demand.<\/p>\n

The government can also use its regulatory power to set maximum fees, so that ISPs can be reimbursed by copyright owners for the costs involved in complying with court-ordered disclosures of customer identities. This issue came to light in a May 9, 2017, decision<\/a> from the Federal Court of Appeal in the controversial Voltage reverse class action litigation (which I discuss further below).<\/p>\n

What if the legislation is opened up?<\/strong><\/p>\n

If the Act is opened up for substantive legislative revision, which may be neither necessary nor desirable at this time, here is what could be on table:<\/p>\n