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:
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.