Canadian Copyright Law Updates

1. Introduction

   This article reviews material developments in Canadian legislation, case law, and practice in the area of copyright in 2017. All references in this article to the "Act" refer to the Copyright Act, R.S.C. 1985, c. C-42, as amended. This article was originally published by The Continuing Legal Education Society of British Columbia in their "Annual Review of Law & Practice - 2018".

2. Law and Policy

   The past twelve months were quiet (in a relative sense) in the copyright realm, marking a break from a frenetic trend that started in 2012 when the Supreme Court of Canada ("SCC") released the copyright pentalogy, and the bulk of the Copyright Modernization Act came into force. While we received no new copyright-focused pronouncements from the highest court this past year, lower courts did release a slew of interesting decisions and this included appeal court decisions on some of the cases noted last year, and as discussed below. There were also no changes to domestic copyright law in 2017, though, as discussed below, there may be some activity on this front in 2018.

   Notably, while Parliament was scheduled to commence a review of Canada's copyright legislation in 2017 (as required under section 92 of the Act), there has been relatively little formal activity on this front aside from many stakeholders readying their submissions. Additionally while the government did hold consultations in relation to the Copyright Board in 2017, no decisions on reform have been communicated to the public. These portend an active 2018 for the world of copyright in Canada.

   But those are matters for next year; for now, let's start our review of 2017 with a look at the consultations that did occur that may lead to policy developments or procedural reforms.

   1. Consultations on Reform to the Copyright Board

   On August 9, 2017, the government announced a consultation on possible reform of the Copyright Board, with the formal consultation period ending in late September. Though it received many submissions, the government has not yet made any formal response, let alone indicated if there will be any changes, or what those changes might be. A seeming focus of the consultations and potential area for reform relates to the problem of delay before the Board—which can be acute where the pace of technological changes mean that technology can become outmoded and new paradigms emerge in the time it can take for the tariff-setting process to be completed. To address such concerns, the government identified four broad categories of possible action as part of the consultations:

   Better enable the Board to deal with matters expeditiously Streamline certain aspects of the Board's decision-making framework Implement case management Empower the Board to award costs between parties Require parties to provide more information at the outset of tariff proceedings Reduce the number of matters that come before the Board each year Expand the existing option for some collective societies to establish individual licensing agreements with prospective users independently of the Board Lengthen the effective time periods of tariffs Prevent the retroactivity of tariffs or limit the impact of retroactivity Require longer lead times in tariff filing Allow for copyrighted content use and royalty collection pending the approval of a tariff in all cases Clarify the Board's framework, mandate and decision-making processes Codify specific Board procedures Include a mandate for the Board in the Act Specify decision-making criteria for the Board to consider Harmonize different tariff-setting regimes Interestingly, the government expressly indicated that its consultation was not intended to "directly address the issues of funding for the Board, collective management generally or other statutory responsibilities of the Board". Though these obviously have an interplay with delay, it remains to be seen what the final impact of any reform may be, if these issues are not also addressed. That said, as the government went on to note when starting the consultations, "[a] determination of the Board's funding can only be made following consideration of its role and structure in the digital era. Broader, significant policy issues, such as collective management, may be raised in the context of the upcoming five-year Parliamentary review of the Act". In short: stay tuned!

3. Case Law

   The discussion below encompasses a selection of interesting copyright cases from 2017. For the most part, the discussion excludes 'copyright' cases that are only notable for reasons other than copyright—i.e. for developments in law relating to civil procedure, administrative review, or otherwise.

   1. Subject Matter and Originality

      In Geophysical Service Incorporated v. Encana Corporation, 2017 ABCA 125, the Alberta Court of Appeal affirmed Geophysical Service Inc. v. Encana Corp., 2016 ABQB 230, a related case which was discussed in last year's article. Specifically, the court held that the trial decision was correct in holding that the legislature can create an implied exception to general rights such as those provided in the Act. In particular, the court confirmed a provision contained in the Canada Resources Petroleum Act ("CRPA") was applicable, and that it was both more recent and more specific than the Act. In the result, Geophysical Service Incorporated's ("GSI") exclusivity to its seismic data (while subject to copyright) ended at the expiry of the mandated privilege period in the CRPA and GSI could not rely upon its rights under the Act. GSI's application for leave to appeal was subsequently denied by the SCC and so this story ends here.

      Evans and Hong v. Upward Construction, 2017 BCPC 247 was a BC Provincial Court Small Claims action involving claimant homeowners who had engaged the services of the defendant contractor. The homeowners provided the contractor with an un-editable electronic version of their proposed designs, and an employee of the contractor created an editable electronic version of the designs in a digital design program. The employee made changes to the electronic drawings provided, as well as adding further changes suggested by the claimants. The claimants ultimately terminated the contract and requested an editable electronic version of the designs. The contractor refused and provided a un-editable electronic version of the plans.

      In court, the contractor asserted copyright over the electronic house plans. The judge accepted that the defendant's electronic editable plans deserved copyright protection, noting that a house plan can be subject to copyright protection, as long as it is original. Original need not mean unique, but simply that the work is a product of the author's skill and judgment. Given this framework, the judge pointed to the fact that the contractor's employee did not rely on inaccurate measurements provided by the claimants, she re-measured the entirety of the home and did her own design according to the budget and design elements given by the claimants. Given this finding of copyright in the plans, the court found that the defendant had a right to the integrity of its work and, given the discrepancy of the original measurements, held that prejudice to the defendant's reputation would occur if the plans were relied upon and modified. Finally, the court found that the claimants had an implied licence to use the renovation plan, but any reproduction (and presumably editing) would require consent of the defendant.

      In Lainco Inc. c. Commission Scolaire des Bois-Francs, 2017 CF 825, the Federal Court recognized the physical layout of a building structure as an 'architectural work' as defined under the Act. The plaintiff, Lainco, had built a distinctly designed complex called the "Artoplex" in a Quebec town. The defendants (a school board, municipality, architectural firm, and general contractor) collaborated to build a...