2022 Year In Review: Canadian Copyright

• Jurisdiction: Canada
• Law Firm: Bereskin & Parr LLP
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, IT and Internet, Copyright, Media & Entertainment Law
• Author: Mr Adam Bobker, François Larose, Prudence Etkin, Adam Aucoin, Julia London and Siobhan Doody
• Published date: 19 January 2023

In 2022, Copyright Law in Canada continued to evolve to meet the demands of technological developments and international standards. The Supreme Court provided further clarifications on the breadth of compensable rights under the Copyright Act, Parliament extended the term of copyright protection to match that of our neighbours to the South, and the Courts continued to remind Defendants that they are not afraid to punish those who disregard the judicial process'to name just a few key highlights.

Below are some of the most notable Copyright decisions and parliamentary developments in Canada from 2022.

1) COPYRIGHT LEGISLATION AND PARLIAMENTARY ACTION

In 2022, the Federal Government passed one bill and introduced several others into Parliament that could directly or indirectly affect the Copyright Act. They are discussed below.

A - Bill C-11

Bill C-11: An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts, or the Online Streaming Act, was tabled in Parliament on February 2, 2022. The amendments provide new definitions of 'programming undertaking,' 'broadcasting undertaking,' 'new media retransmitter,' and 'retransmitter' in the Copyright Act, and propose creating discoverability and other requirements for streaming platforms and CRTC oversight of user-generated content. It is currently pending Senate Approval.

B - Bill C-19

We reported on Bill C-19: The Budget Implementation Act, which received Royal Assent on June 23 and includes amendments to the Copyright Act prompted by Canada's commitment under the Canada-United States-Mexico Agreement (CUSMA). The amendments extend the basic term of protection for copyrighted works in Canada under the Copyright Act from the life of the author plus 50 years (calculated from the end of the calendar year of their death) to life plus 70 years. The legislation came into force on December 30, 2022. Accordingly, any works not yet in the public domain by the end of 2022 will benefit from an additional 20 years of protection.

C - Bill C-244

Bill C-244, An Act to amend the Copyright Act (diagnosis, maintenance and repair) proposes amendments to the prohibition of circumvention of technological protective measures ('TPMs') provisions in the Copyright Act. The proposed amendment would create an exception to permit the diagnosis, maintenance, or repair of a product with an embedded computer program. The House of Commons completed the Second Reading of the Bill on October 5, 2022.

D - Bill C-294

Bill C-294: An Act to amend the Copyright Act (Interoperability) was introduced at the House of Commons on June 17, 2022 and proposes to amend subsection 41.12(1) of the Copyright Act such that 41.1(1)(a) does not prevent a person from circumventing a technological protection measure when a person does so to make a computer program interoperable with any device or component, or with a product they manufacture. The goal of this amendment is to provide a limited exemption for consumers and innovators who wish to enable their devices to interoperate with other equipment. In other words, this would limit the ability of manufacturers' technological protection measures ('TPMs') to control consumer access to products after they have been rightfully purchased. The House of Commons completed the Second Reading of the Bill on November 30, 2022.

2) CASE LAW DEVELOPMENTS

A - Scope of Copyright Protection

Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30

The Supreme Court of Canada confirmed there is no separate compensable right for 'making available' a work on the internet under the Copyright Act. In overturning a decision of the Copyright Board, the Court confirmed that section 3(1) of the Act creates only three compensable rights - reproduction, performance, or publication - and that a single activity can only engage one of those three interests. The Court's decision turned on the interpretation of section 2.4(1.1) of the Act, which clarifies when a work is considered 'made available' for the purposes of interpreting the performance right of 'communicating the work...by telecommunication' under section 3(1)(f). This decision clarifies that, at least for consumer-facing distribution of works, the ultimate product or experience obtained by the consumer is what dictates which copyright interest (and corresponding royalty) is engaged, rather than the technological method of distribution. The decision further reinforces the Court's approach to copyright law, which seeks to balance the interests of owners and users and upholds the principle of technological neutrality.

Pyrrha Design Inc. v. Plum and Posey Inc., 2022 FCA 7

This case was an appeal of Pyrrha Design Inc. v. Plum and Posey Inc., 2019 FC 129, a copyright infringement case that dealt with jewelry designed using antique wax seal impressions. The Appellate court dismissed the appeal, finding no palpable and overriding errors in the lower court's reasoning. The Court upheld the lower court's determination that the Respondent, Plum and Posey, did not infringe any copyright the Appellant, Pyrrha, had in its jewelry designs. Justice Phelan correctly applied a two-step analysis to determine whether a 'substantial similarity' existed between the works at issue, making a 'holistic comparison' to determine 'whether those similarities represented a substantial portion of the author's skill and judgment' (at para 51). Further, the Federal Court correctly concluded that because the Pyrrha Designs were relatively simple copyrighted works, the degree of originality was lower. This decision reinforced the principle that only a limited scope of protection should be afforded to simple works. For our full article on the decision, click here.

Nicholl-Smith v. The University Women's Club of Vancouver, British Columbia, 2022 BCCRT 1108

Individuals interested in accessing and using a work in which copyright has expired have no legal right of access to the work under the Copyright Act. This is because the Act does not require the owner of the work or any other person to provide access to the work. The Applicant in this proceeding, a member of the Respondent society, argued that the Respondent had no legal authority to deny her access to photographs in which copyright had expired. The Tribunal held at para 31 that the expiration of copyright simply meant that copying of the work no longer contravenes the Act and that the Respondent was not required...