2021 Year In Review: Canadian Copyright

• Published date: 11 February 2022
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Bereskin & Parr LLP
• Author: Mr François Larose, Naomi Zener, Tamara Céline Winegust, William Audet, Adam Aucoin and Mitchel Fleming

For Copyright Law in Canada, 2021 will likely be seen as a year that sowed the seeds of development in this area-from forward-looking government consultations on emerging issues in Copyright, like Artificial Intelligence; to a long-awaited Supreme Court decision that saw now-retired Justice Abella pen unanimous reasons forecasting how Courts should approach fair dealing; to Courts sanctioning claims that represent novel approaches to copyright enforcement in Canada, including inducement to infringe, reverse class actions, and dynamic site-blocking orders.

Below are some of the most notable Copyright developments in Canada from 2021, including links to our articles on these developments and decisions written throughout the year.

1) COPYRIGHT LEGISLATION AND PARLIAMENTARY ACTION

In 2021, the Federal Government launched three separate consultations on potential changes to the Copyright Act: (a) on how to implement an extended general term of protection; (b) on a framework for online intermediaries; and (c) on a framework for artificial intelligence and the internet of things. Several bills that directly or indirectly could affect the Copyright Act were also introduced into Parliament. They are discussed below.

A - Consultation on How to Implement an Extended General Term of Copyright Protection in Canada

This year we reported on the Federal Government's launch of its consultation for the planned implementation of its Canada-United States-Mexico Agreement (CUSMA) commitment to extend Canada's copyright protection term from "life plus 50 years" to "life plus 70 years". The consultation sought feedback on the consequences of such an extension and suggestions on how to address those consequences. In our 2020 Copyright Year in Review, we reported on the Federal Government Canada-United States-Mexico Agreement Implementation Act S.C 2020, c.1 extended the term of copyright protection for sound recordings, anonymous and pseudonymous works, and cinematographic works to life of the author plus 70, 75 or 100 years, as the case may be, in accordance with the Canadian Government's obligations under CUSMA. The consultation on the extension for the general copyright term closed on March 31, 2021.

B - Consultation on a Modern Copyright Framework for Online Intermediaries

The Federal Government launched this consultation on April 14th, 2021 to ensure the continued relevance of Canada's copyright framework for online intermediaries in the face of rapidly developing technological and market changes. We reported on potential options for reform canvassed during the consultation. This included clarifying intermediaries' safe harbour protections, compelling remuneration through collective licensing, increasing transparency in remuneration processes, and clarifying and/or strengthening enforcement tools against online infringement.

C - Consultation on a Modern Copyright Framework for Artificial Intelligence and the Internet of Things

In 2021, the Federal Government launched a consultation for the development of a copyright framework to address the impacts of the proliferation of artificial intelligence ("AI") and the Internet of Things ("IoT"), which we reported on. This consultation primarily sought comments on text and data mining, authorship and ownership of works generated by AI, infringement and liability in relation to AI, the right to repair, technological protection measures, and interoperability. AI-a general-purpose technology with widespread economic and social impacts-and the IoT-the term used to refer to an interconnected web of software-enabled products-are profoundly changing how Canadians do business, innovate, and distribute cultural products. Their proliferation will likely require a re-evaluation of the balance in copyright law to help foster a marketplace suited to the changing needs of users while preserving creators' rights to encourage investment and job creation. The consultation closed on September 17, 2021.

D - Bill C-10

Bill C-10: An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts was tabled in Parliament on November 3^rd, 2020, and included amendments to the Copyright Act, The amendments included new definitions of "programming," "undertaking," "new media" and "retransmitter," as well as elements considered by many to be controversial, including discoverability and other requirements imposed on streaming platforms and CRTC oversight of user-generated content. Bill C-10 died on the order sheet when Parliament was dissolved on September 20^th, 2021, in anticipation of the Federal Election. The Federal Liberal government has expressed an intention to reintroduce the Bill in 2022.

E - Bill S-225

We reported on Bill S-225: An Act to amend the Copyright Act (remuneration for journalistic works), which proposed copyright reforms to address challenges faced by the news media sector, specifically by providing Canadian journalistic organizations with a right to remuneration (to be managed by a collective society) for certain digital distributions of their works as a means to combat these organizations declining advertising revenues. While the Bill targeted platforms such as Google and Facebook, it exempted hyperlinks from its scope of application (which is the primary way the platforms targeted by the Bill provide access to news articles). Bill S-225 has not yet received First Reading in the 44^th Parliament.

F - Bill C-272

We reported on Bill C-272: An Act to Amend the Copyright Act (diagnosis, maintenance or repair), which proposed amendments to the prohibition of circumvention of technological protective measures ("TPMs") provisions in the Copyright Act. The proposed amendments would have created an exception to permit diagnosis, maintenance, or repair of a product with an embedded computer program. Bill C-272 has not yet received First Reading in the 44^th Parliament.

2) CASE LAW DEVELOPMENTS

A - Fair Dealing

York University v. Canadian Copyright Licensing Agency (Access Copyright) 2021 SCC 32: In 2011, York University implemented "Fair Dealing Guidelines", and took the position that such guidelines excused the copying of works by its students and staff for educational purposes; thus, there was no need to enter into a licence with Access Copyright and pay for copies of works in that collective's repertoire. Whether York's position had merit was the subject of much debate throughout the appeal process, and many hoped the Supreme Court would provide a definitive answer. They did not - and the decision instead turned on whether licenses obtained through the Copyright Board were mandatory (they are not). However, Justice Abella nevertheless devoted a fair portion of space outlining the Court's preferred approach to fair dealing, including suggestions of how the fair dealing category of "education" ought to be interpreted in the future, positioning her final decision for the Court as one that is likely to guide future developments in fair dealing jurisprudence. For our full analysis of the decision, click here.

Canadian Broadcasting Corporation v. Conservative Party of Canada, 2021 FC 425

This Federal Court decision established that fair dealing for the purpose of criticism and review need not provide a critique of the copyrighted work used so long as its use supports the overarching hypothesis of the work in which it is included. It has the potential to impact how documentary filmmakers employ copyrighted works in their films. Prior to this decision, Canadian jurisprudence held that to meet the requirements of criticism and review, the copyrighted work in use must be critiqued and analyzed. Furthermore, the Court held that for attribution of the source and author, the inclusion of the CBC's logo was sufficient to meet the attribution and source requirements under the Copyright Act, which changes the attribution requirements for criticism and review and news reporting fair dealing where the copyright owner's logo is sufficiently recognizable. For our full article on the decision, click here.

Stross v. Trend Hunter Inc., 2021 FC 955

The decision considered the attribution...