Copyright did not figure prominently in either the government’s election platform or the Speech from the Throne, but the two departments responsible for copyright policy – Innovation, Science and Industry led by Francois-Philippe Champagne and Canadian Heritage led by Pablo Rodriguez – have both been actively consulting on a myriad of issues this year. The departments just released the submissions they received to one of three consultations on copyright, this one on intermediary liability issues. There was a prior consultation on copyright term extension (expected in some form in 2022 given the obligations under the USMCA) and another on innovation policies such as an exception for text and data mining to support the development of artificial intelligence. I submitted responses to all three consultations (term extension here, AI will be posted shortly).
My submission in the intermediary liability consultation focuses on two main points. First, website blocking is a disproportionate, ineffective and undesirable response to copyright infringement. Recent Canadian court decisions that have approved of the practice raise significant concerns for freedom of expression and net neutrality. If adopted, it must be a measure of last resort featuring robust safeguards to ensure full due process and to prevent over-blocking.
Second, lowering the knowledge standard for inputting intermediary liability is undesirable. Current safe harbour provisions help to preserve net neutrality and promote freedom of expression by eliminating any incentive for platforms to pre-emptively remove content in the interest of avoiding liability. Were reforms made such that intermediaries, such as ISPs, attract liability upon receiving notice of alleged infringement, copyright owners would be incentivized to make even weak or frivolous allegations in order to have questionable content removed.
While it will take some time to fully review all the submissions, a quick glance reveals few surprises. Bell is still leading the charge for website blocking, Music Canada still wants more aggressive takedown rules, copyright collectives still want to roll-back user rights, and the education, library and consumer groups are still defending user rights. This process bears commenting as it has all the hallmarks of a copyright policy version of the movie Groundhog Day, in which the same day repeats itself over and over again. The same is sadly true for copyright policy, where copyright lobby groups seeking to limit fair dealing or mandate website blocking use the same tactics again and again in the hope of getting a different outcome.
The reality is that these issues have been canvassed repeatedly by politicians, courts, and regulators over the past decade. Successive Canadian governments conducted extensive copyright consultations in 2010 (leading to the 2012 reforms to the law) and again in 2018. The Supreme Court of Canada has heard multiple cases involving fair dealing (most recently in the decisive Access Copyright v. York University case) and left no doubt that it is a users’ right that should be interpreted in a broad and liberal manner. The CRTC conducted a process on website blocking and rejected the application on jurisdictional grounds. The 2018 copyright act review provided a clear roadmap if there is an appetite for reform: the expansion of fair dealing for innovative purposes such as text and data mining, new exceptions to the anti-circumvention provisions, and the elimination of crown copyright.
Instead, the departments – pressured by lobby groups – launch new consultations seemingly designed to wear down the thousands of Canadians that have actively participated in past consultations and processes, only to find the government asking the same questions yet again. The failure to act on past reviews alongside these new consultations suggests a marked departure from the government’s prior commitment to a balanced copyright policy approach, jeopardizing the confidence of Canadians in copyright policy development. Indeed, if that weren’t enough cause for concern, another consultation may be just around the corner as the next statutorily mandated review of the Copyright Act is presumably set to start next year.