The “enabler provision” has emerged as one of the major demands by copyright lobby groups, who want to see significant expansion of the current provision by including SOPA-style reforms that could target sites such as Youtube. In fact, the music industry has gone even further with demands that could create liability risk for social networking sites, search engines, blogging platforms, video sites, and many other websites featuring third party contributions. Jason Kee of the Entertainment Software Association of Canada argues that unless the enabler provision is expanded “the provision is useless.” All of these demands come despite the fact that the industry is using existing law to sue isoHunt for millions of dollars under current copyright law.

In addition to expanding the provision, the same groups want to add statutory damages to the mix (the music industry recently argued that statutory damages should be unlimited). Yet a June 2010 letter to SOCAN from Canadian Heritage Minister James Moore’s department indicates it is opposed to the change since it stems from a lack of understanding about how statutory damages work. The letter states:

This reason for this is that the type of acts targeted by the enabling provision would often be of a commercial nature (as evidenced by the nature of the service itself and the factors for the court’s considerations listed under the new Subsection 27(2.4)). As a result, the scale of statutory damages infringement for commercial purposes would apply in many cases. This scale, as defined under the new Subsection 38.1(1) is applied on a “per work infringed” basis.

However, in establishing a copyright infringement under Subsection 27(2.3), there is no requirement to prove specific infringements, but rather only requires that some infringement(s) occurred as a result of the act of enabling copyright infringement. As such, there is no specific number of infringed works that needs to be established. Consequently, it would create serious difficulties for the application of the enabling provision if a remedy based on a “per work infringed” basis was available.

It should be remembered that actual damages, accounting of profits and injunctions are available for a violation of the new enabling provision. Furthermore, where the actions of a person are particularly reprehensible, punitive damages may also be awarded by the courts.

The Canadian Heritage response is instructive for at least three reasons. First, it points to the fact that the rights holders have numerous tools within the law to obtain huge financial damages, particularly if the actual damages are as significant as they claim. Second, statutory damages do not fit neatly within the framework given that there may not be a need to prove a large number of actual infringements. Third – and perhaps most tellingly – it is clear the department believes that current Canadian law can deal with sites such as isoHunt given the reference to relying on the present commercial statutory damages clause instead.