Consultation On A Modern Copyright Framework For Online Intermediaries

• Published date: 11 May 2021
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Bereskin & Parr LLP
• Author: Mr François Larose and Naomi Zener

The federal government has put out a consultation call for comments on how to modernize our copyright regime for Online Intermediaries. If you hop in a slightly modified DeLorean or a Way Back machine (our nod to well-known copyright protected audiovisual productions that could be subject to online piracy) and recall 2012's modernization of the Copyright Act (the "Act"), when the Act was expanded to include protections for copyrighted works in the age of the Internet, much has changed since then. Content is inhaled, often binged, online whether legally or illegally. Content creators, rights holders, consumers, and Online Intermediaries have converging and diverging interests when it comes to the accessibility of content online. The government had previously published their findings from each of the Parliamentary Review of the Act conducted by the Standing Committee on Industry, Science and Technology ("INDU") and the Standing Committee on Canadian Heritage ("CHPC"), which we previously reported on in our 2019 Copyright Year in Review, and in 2021 it seems momentum is building on following up on the recommendations from each of the aforementioned committees as Canada tries to navigate our ever evolving digital world. Both INDU and CHPC found that Online Intermediaries must bear a measure of accountability, but INDU did not advocate for change to the safe harbour provisions under the Act, and CHPC stated that where an Online Intermediary is a content distributor, there needs to be accountability. Other measures to benefit content creators/rights holders included calls for transparency in the calculation and distribution of royalties by collective societies and the availability of net neutral court-ordered injunctions.

The goal of this consultation is three-fold: (a) to protect and encourage the use of copyright-protected content online; (b) to safeguard individual rights and freedoms in an open Internet; and (c) to facilitate a flourishing digital market. Without fair remuneration to content creators and rights holders for the exploitation of their content online, what incentive is there for them to allow the content to be accessible on the Internet? Furthermore, if the content is vulnerable to piracy and no cost-effective accountability for the violation of and enforcement of rights by the players in the space exists, then there's even less incentive to make the content available online - or even to create content. Copyright is meant to protect a creator's/rights holder's ownership and pecuniary interest in the protected while allowing people to use the work. Without updating our copyright laws to allow for the exchange and consumption of such content, while balancing creator and user rights and upholding net neutrality, casts Canada back into the pre-Internet darker age. Online Intermediaries or "web giants" are either passive (e.g., Internet service providers ("ISPs"), data storage, web hosting, etc.) or active (e.g., content aggregators...