Canadian Heritage: Why Statutory Damages Do Not Belong in Bill C-11’s “Enabler” Provision

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.


  1. It’s interesting how slowly the lawsuit against isoHunt is being pursued. Could it be that the music industry is afraid that it might actually win under the current law?

  2. lol @Z
    True dat!

  3. Chris Brand says:

    statutory damages
    The various content industries love statutory damages for the same reason they love things like “notice and takedown” – because they don’t have to bother to actually prove anything.

    If their losses are actually as big as they keep claiming, they should be trivial to prove.

  4. Canadian Spring

    Stop Stephen Harper! Call for Bi-election

  5. Mad Canadian says:

    First want to say before I go on a rant here, does anyone know when this bill is expected to pass…before summer or in fall?

    Why do we even waste our time typing on here what we think and signing petitions none of it matters, CONS obviously don’t listen to us.. CONS are going to do what they want. I really think I’ve given up and just have to sit here and wait until 2015 to vote their asses out! Maybe someone has to do something drastic like say they will kill themselves to get a bill not passed would they listen then? So bleeping sick and tired of it all!!! I won’t be coming back on here because all I see is bad news nothing good and so frustrated I can’t do anything about it and not just this bill also with that GOD Damn Crime bill about to be passed.

  6. Doug Webb says:

    Conservatives March Steadfastly Into The Past
    They had to show us our fears were justified. “Do you fear me now?” should be their mantra

  7. How do they expect to make money?
    How do these guys expect to make money when most of Canada will be either in jail, or sued into to complete poverty by these new laws?

    How will they make money if they have no one left to sell the music too?

    These laws are so far removed from reality that it just boggles my mind…this is complete insanity.