Canadian Copyright 2020 Year In Review

• Published date: 01 February 2021
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Bereskin & Parr LLP
• Author: Mr François Larose, Naomi Zener, Martin Brandsma and Prudence Etkin

Some may think that 2020 was the year of the world changed by COVID-19. However, we would like to pivot and reframe 2020 as the year that Canada's copyright laws evolved. With USCMA's legislative changes implemented by Parliament and interesting jurisprudential interpretations of issues surrounding fair dealing, 2020 resulted in a new normal for copyright law in Canada.

1) COPYRIGHT LEGISLATION

In 2020, the notable legislative changes to the Copyright Act (the "Act") came in the form of: (a) Bill C-209, a Parliamentary response to the Supreme Court of Canada's decision in Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43 ("Keatley"), which we reported on in 2019; and (b) the Canada-United States-Mexico Agreement Implementation Act, S.C. 2020, c. 1, which received Royal Assent on March 1, 2020.

In both our 2018 and 2019 Copyright year-in-review articles, we discussed the government's legislative reviews of copyright, specifically the changes to copyright as a result of the ratification and implementation of USCMA, and the consultations by, and recommendations put forth by the Standing Committee on Industry, Technology and Science ("INDU") and Canadian Heritage. For your ease of reference, we have reproduced the recommendations made by (c) INDU and (d) Canadian Heritage below.

A - Bill C-209

On September 23, 2020, Bill C-209 An Act to amend the Copyright Act (Crown copyright) was introduced in response to the Supreme Court of Canada's decision in Keatley. Bill C-209 aims to amend the Act to clarify that no copyright subsists in any work that is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, without prejudicing any rights or privileges of the Crown. Mr. Masse, the Bill's sponsor, stated during the first reading that "the government has a closed door when it comes to government publications, research and a number of published periodicals. This costs taxpayers a significant amount of money. It is against open government and is based upon a law that Canada enacted in 1921, which was based on a law from 1911 in the U.K.". Mr. Masse's objective with this legislative amendment to s. 12 of the Act is to save taxpayers money providing for "open government for educators and innovators, and it would bring accountability" and "bring Canada in line with so many other countries that have information available for business or civil society for national advancement." The Bill does not speak to moral rights of authors, and with its stated goals, it would strip the Crown of copyright in any works prepared or published by or under the direction or control of the Crown, not requiring any amendments to the moral rights provisions of the Act.

In our review of Keatley, we noted the spectre of possibility that if left unchecked by Parliament, as Justice Abella (writing for the majority) stated in her decision, Crown copyright could end up applying to more works than it should. While it is reasonable for the Crown to own copyright in its works (as s. 12 of the Act is written and interpreted by the Supreme Court of Canada) these changes could result in copyright claims for works that the Crown would never have thought to claim, including works of independent contractors in the creative industries, as well as affecting copyright terms, namely either: (1) shortening copyright terms in Crown copyrights to 50 years from the end of the year in which the work was first published, instead of 50 years from the end of the year in which the author died: or (2) lengthening copyright terms for unpublished works prepared under the direction or control of government, since the term of Crown copyright starts with the date of the first publication of the work. Furthermore, given that s. 12 is a deeming provision, meaning that copyright "belongs" to the Crown, rather than being "assigned" or otherwise "transferred", the government is in a position to expropriate the ownership of copyright by virtue of its publication of them. Not addressed in Keatley was the issue of moral rights, which would not be waived by the author of the work without a written waiver of such. If Bill C-209 becomes law, it would obviate any issue arising with the Crown owning copyright in works prepared and/or published under its direction and control and the moral rights of such works' authors.

B - Canada-United States-Mexico Agreement (CUSMA/UCSMA)

On March 13, 2020, the Canada-United States-Mexico Agreement Implementation Act S.C 2020, c.1 (the "CUSMA/UCSMA Act") received Royal Assent. The CUSMA/UCSMA Act implements the Agreement between Canada, the United States of America, and the United Mexican States, as amended by the subsequent Protocol. The Agreement came into force on July 1, 2020.

The CUSMA/UCSMA Act introduces the following amendments to the Act:

• The term of protection of copyright is extended in some situations to the life of the author plus 70 years, and in the case of anonymous, pseudonym, and cinematographic works, 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:

  • sound recordings (ss. 23(1) of the Act);

  • anonymous and pseudonymous works (including works of joint authorship) (ss. 6.1 and 6.2 of the Act)); and

  • cinematographic works (s. 11.1 of the Act);

• Changes to ss. 6.1, 6.2, 11.1, 23(1) and 23(1.1) of the Act, do not revive copyright or create a right to remuneration in any work, performer's performance fixed in a sound recording or sound recording in which the copyright or the right to remuneration had expired;

• Subsection 42(3.2) of the Act is a new criminal offence added relating to the removal or altering of rights management information (subject to an exception for a person who is acting on behalf of a library, archive or museum or an educational institution);

• Section 44.01 of the Act dealing with detention of copies by a customs officer has been amended to delete the exception relating to copies in customs transit control or customs transshipment control in Canada; and

• Canada's Criminal Code was also amended to add a new offense relating to trade secrets.

C - Standing Committee Report: The Standing Committee on Industry, Technology and Science ("INDU") Statutory Review of the Act

• We reported on INDU's recommendations in 2018 and in 2019, and it remains to be seen whether any of them will be implemented in a further amendment to the Act, including to provide clarity around ownership of computer-generated works (e.g., works created with the assistance of artificial intelligence (AI))and amend s. 29 of the Act to provide that the list of allowable fair dealing purposes that is illustrative, as opposed to exhaustive.

We will continue to wait and see if the recommended legislative and policy changes will be made into law. Stay tuned!

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

The CHPC conducted its own review of the 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.

For a full discussion on the issues, a copy of the report can be accessed here. As with INDU's recommendations, we continue to wait and see if Heritage's recommended legislative and policy changes will be made into law. Stay tuned!)

E - Time Limits in Respect of Matters Before the Copyright Board Regulations, SOR/2020-264

On December 4, 2020 Time Limits in Respect of Matters Before the Copyright Board Regulations (the "Regulations") came into force. The regulations address delays in the Copyright Board decision making processes. As a result royalties determined by the Board were often payable retroactively creating a number of challenges for rights holders and creators (as detailed in the Regulatory Impact Analysis Statement released on April 27,2019). The Regulations specify deadlines by which the Board must render final decisions in its proceedings:

• within 12 months after the day the parties present their final submissions in a tariff proceeding where a hearing on the matter is held; and

• in any other case, before the day on which the effective period of the proposed tariff begins in a tariff proceeding with no hearing.

2) COPYRIGHT JURISPRUDENCE

Standing to Sue & Copyright Infringement

Lickerish, Ltd. v. Airg Inc., 2020 FC 1128

The Plaintiff, a UK-incorporated syndicated photography agency, brought an action under the Federal Court's simplified procedure for the Defendant's unauthorized use of two photographs of Meghan Markle on its website. The Plaintiff argued that it had entered an exclusive agency contract to act on behalf of the photographer. The Court held that the Plaintiff lacked standing to bring the action as it provided no evidence that it either authored or owned the copyright in the two photographs, including by way of assignment or exclusive license.

The Plaintiff provided no direct evidence from the photographer regarding authorship or the supposed contract with the Plaintiff, and instead relied on an affidavit from the Plaintiff's Director. The Court found the Plaintiff's evidence amounted to inadmissible hearsay and was not satisfied that any specific or general hearsay exception applied. Consequently, the Plaintiff lacked standing as it had not established that the photographer in fact owned the copyright at issue, or that the Plaintiff received an exclusive license from the owner of the copyright.

Interestingly, the Plaintiff attempted to...