Canadian Copyright 2019 Year Update

• Published date: 17 August 2020
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Copyright, Trademark, Advertising, Marketing & Branding
• Law Firm: Bereskin & Parr LLP
• Author: Ms Naomi Zener and François Larose

Welcome to the roaring 20s 2.0! Midway through 2019, we discussed decisions that had been rendered in our mid-year update, and highlighted appeals we were eagerly anticipating being heard. 2019 was an interesting year for changes to the copyright landscape in Canada, with more to come in 2020!

1) COPYRIGHT LEGISLATION

(a) USCMA

Chapter 20 of United States - Mexico - Canada Agreement ("USMCA") provides for several changes relating to intellectual property and digital media, including an extension to the term of copyright protection to life of the author plus 70 years. These changes must be implemented into the parties' respective domestic laws within prescribed transition periods after the USMCA comes into force. For Canadian authors, this means that the life of the copyright in their works will have an additional 20 years for the owners of copyright to control the exploitation of their work and derive benefit therefrom. Canada has 2.5 years from the date upon which the USMCA enters into force to enact the changes, so until then, the life of copyright remains 50 years from the end of the year in which the last living author dies. We expect that Canada's general copyright term will be extended by fall 2022. Stay tuned!

In the meantime, Bill C-4'An Act to implement the Agreement between Canada, the United States of America and the United Mexican States'had its first reading in the House of Commons on January 29, 2020. It remains largely the same as its predecessor Bill C-100 from May 2019, but there are changes that include new criminal sanctions regarding trade secrets, as well as some to the copyright term in the cases of anonymous/pseudonym works and anonymous/pseudonym works of joint authorship. The term has now been extended to the earlier of the end of 75 years following the end of the calendar year in which the first publication occurs and 100 years following the end of the calendar year in which the work was made. However, no change was made to the existing general copyright term of life plus 50 years. The proposed amendments can be found here.

(b) Standing Committee Report: The Industry, Technology AND Science Standing Committee ("INDU") Statutory Review of the Copyright Act

We reported on the Industry, Technology and Science Standing Committee ("INDU")'s recommendations in mid-2019, and it remains to be seen whether any of the following will be implemented in a further amendment to the Copyright Act:

• Consider making copyright registration a requirement to enforce copyright in a work during the additional 20 years to be provided by the planned extension of the general term of copyright from the life of the author plus 50 years to life plus 70;
• Provide a non-assignable right to terminate an assignment of copyright 25 years after the date of assignment, subject to (i) registration of the copyright, (ii) five years notice of intent to exercise the right, and (iii) exercising the right within five years after it becomes available;
• Amend the Act to provide that an exercise of the reversionary right under section 14(1) may not take effect earlier than 10 years after a notice of intent to exercise the right;
• Consider implementing an artist's resale right;
• Update the rules governing first ownership and authorship of cinematographic works to better respond to different types of industries and productions, and maintain Canada's competitiveness in a global market;
• Provide clarity around ownership of computer-generated works (e.g. works created with the assistance of artificial intelligence (AI));
• Introduce an exception to copyright to facilitate the use of lawfully acquired copyright protected works and other subject matter for informational analysis;
• Amend section 29 of the Act to provide that the list of allowable fair dealing purposes is illustrative, as opposed to exhaustive;
• Provide regulations to standardize notices of claimed infringement under the notice-and-notice regime to be in a prescribed, machine readable format; and
• Update the maximum and minimum statutory damages awards provided under the Act, and provide a mechanism to periodically increase these amounts to reflect inflation.

For further discussion, please read our mid-year article regarding the legislative and policy changes.

(c) Standing Committee Report: The Standing Committee on Canadian Heritage ("CHPC") Statutory Review of the Copyright Act: "Shifting Paradigms"

The CHPC conducted its own review of the Copyright Act and those creative industries principally affected, including the music, film & television, writing & publishing and visual arts industry. The major themes covered were: (1) the increasing value gap between creatives, distributors and others; (2) the decline in the artistic middle class; (3) the impact of technology on creative industries; (4) the changes in consumer culture; and (5) indigenous perspectives on copyright. The CHPC came to the following recommendations:

• That the Government of Canada increase its support for creators and creative industries in adapting to new digital markets.
• That the Government of Canada develop mechanisms by which streaming services will develop and promote Canadian content.
• That the Government of Canada create educational materials to raise awareness of copyright provisions and artist remuneration for consumers.
• That the Government of Canada create educational materials to raise awareness of copyright provisions as well as artists' rights and responsibilities under the Copyright Act for artists and creators.
• That the Government of Canada review the safe harbour exceptions and laws to ensure that Internet service providers are accountable for their role in the distribution of content.
• That the Government of Canada increase its efforts to combat piracy and enforce copyright.
• That the Government of Canada pursue its commitment to implement the extension of copyright from 50 to 70 years after the author's death.
• That music streaming services be regulated like other Canadian music services.
• That tariffs for online music services be reviewed by the Copyright Board to ensure royalty payments provide fair compensation for artists.
• That the Government of Canada amend the radio royalty exemption found at section 68.1(1) of the Copyright Act so that it applies only to independent and/or community-based radio stations.
• That the Government of Canada amend the definition of sound recording found in section 2 of the Copyright Act to allow sound recordings used in television and film to be eligible for public performance remuneration.
• That the Government of Canada review, clarify and/or remove exceptions contained in the Copyright Act, ensuring that any exception respects section 9 of the Berne Convention for the Protection of Literary and Artistic Works, to which Canada is a signatory.
• That the Government of Canada meet international treaty obligations (including Berne Convention for the Protection of Literary and Artistic Works, the Trade-Related Aspects of Intellectual Property Rights Agreement, and World Intellectual Property Organization Copyright Treaty).
• That the Government of Canada amend subsection 14(1) of the Copyright Act so that it reads "from 25 years after assignment.".
• That the exception for charitable organizations in subsection 32.2(3) of the Copyright Act be clarified to apply strictly to activities where no commercial monetary gain is intended.
• That the Government of Canada extend moral and economic rights to audiovisual performers.
• That the Government of Canada amend section 34.1 of the Copyright Act to deem the screenwriter and director the co-owners of copyright and co-authors of a television or cinematographic work.
• That Government of Canada amend the Act to clarify that fair dealing should not apply to educational institutions when the work is commercially available.
• That the Government of Canada promote a return to licensing through collective societies.
• That the Government of Canada review, harmonize and improve the enforcement of the statutory damages for infringement for non-commercial use in section 38.1(1) of the Copyright Act.
• That the Government of Canada harmonize remedies for collective societies under the Copyright Act.
• That the Government of Canada establish an artist's resale right.

For a full discussion on the issues, a copy of the report can be accessed here.

2) COPYRIGHT JURISPRUDENCE

(a) Scope of Copyright Protection

(i) Facts and information

In the Manitoba decision, Albo v. The Winnipeg Free Press et al 2019 MBQB 34, the Court has once again clarified that copyright does not extend to facts and ideas, but only protects expressions. The decision reiterates that copyright protection in Canada is assessed on the basis of originality and an author's skill and judgment, and not the "sweat of the brow" standard.

The plaintiff, Dr. Frank Albo, had a prior working relationship with the defendant newspaper, the Winnipeg Free Press. The parties had collaborated on a series of articles about the history of Winnipeg that were later published as a book. Dr. Albo then agreed to consult for research on a new series of articles, to be written by a staff writer at The Press. The articles were expressly not intended for book publication (as the previous book had resulted in a loss for The Press). However, after the new series of articles was released, The Press was approached by a third party with a cost-sharing proposal to publish the articles as a coffee table book (the "New Book"), which made the project viable. The Press accepted the proposal and the New Book was published, and subsequently Dr. Albo suggested that he was not adequately compensated for his contributions. After some correspondence, Dr Albo initiated a claim for copyright infringement and breach of contract, stating that the New Book reproduced a substantial part of Dr. Albo's research (as expressed in various public lectures, presentations, remarks/interviews), and that this was outside the scope of his...