Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP
Copyright
Improv Policy: The Government Doesn’t Know What To Do About Its Online Streaming Act Mess
Earlier this month, the government shocked the culture sector by announcing it was effectively reversing the CRTC decision that implemented the Online Streaming Act. Culture Minister Marc Miller tried to cushion the blow with a promise of $600 million in support for the audio and audiovisual sectors, but there was no escaping the anger from some over abandoning a policy that had been years in the making. Weeks later, it is still not clear what precisely the government intends to do. In fact, it is increasingly evident that there is no plan, with the government improvising on critical issues such as the implementation of the reversal, funding for news, and the eventual contribution requirements for Internet streamers.
From Levy to Liability: Why Canada Risks Facing Hundreds of Millions in Retaliatory Tariffs Due to the CRTC’s Online Streaming Act Ruling
The CRTC’s Online Streaming Act ruling, which triples the mandated payments for large Internet streaming services, has attracted widespread criticism given fears the approach could result in higher consumer fees and a trade backlash from the United States. Culture Minister Marc Miller’s response to the ruling was somewhat muted, saying the government was reviewing the changes and assessing their impact. The reluctance to take a stronger public position may stem from concerns about the ruling’s trade implications, as it appears to violate Canada’s trade obligations. The violation can be saved by invoking CUSMA’s cultural exemption, but that triggers the U.S. right to apply dollar-for-dollar retaliation. In other words, if the Online Streaming Act generates hundreds of millions in mandated expenditures, it will also spark matching tariffs targeting high-value Canadian economic sectors.
The Online Streaming Act Bill Comes Due: Why the CRTC’s Latest Ruling Guarantees Years of Trade and Legal Battles
The CRTC yesterday released its much-anticipated Online Streaming Act decision that has been years in the making. Given the likely opposition from many stakeholders, it is virtually certain to lead to protracted trade and legal battles. From the moment the government introduced Bill C-10 in 2020, its goal was to impose regulatory obligations on Internet streaming services, treating them as online broadcasters and mandating that they pay into the Canadian system. This week’s ruling puts a number on the payments, building on an earlier 5% interim levy with an additional 10% in expenditure requirements. The combined 15% places Canada among the most expensive operating jurisdictions in the world for streaming services, with consequences that will undoubtedly affect consumer streaming prices. Moreover, with the streaming services already challenging the interim 5% levy in court, they will undoubtedly challenge this one as well. In fact, the battle will not be limited to Canadian litigation. The U.S. government, which has become increasingly vocal in its opposition to the Online Streaming Act, will view this decision as a provocation and escalate pressure on Canada to drop the legislation altogether. Culture Minister Marc Miller appeared to hedge in his reaction to the decision, suggesting that the government sees the headaches that lie ahead.
Addressing the AI Policy Challenge: My Appearance before the Standing Senate Committee on Transport and Communications
Earlier this week, I appeared before the Standing Senate Committee on Transport and Communications as part of its study on AI regulation. This follows earlier appearances before the House of Commons Heritage and Industry committees on the same issue. The hearing led to robust exchanges with multiple Senators on the intersection of AI policy with issues such as privacy, copyright, online harms, and sovereignty. I plan to post clips from the hearing in a future Law Bytes podcast, but in the meantime, my opening statement provides a good sense of my views on AI regulation with respect to privacy, copyright, and the need for an AI Transparency Act. A video of the opening statement is embedded below, followed by the text.
Win, Lose or Draw?: The Federal Court of Appeal Overrules a Key Copyright Case on Procedural Grounds
Nearly two years ago, I wrote that the Federal Court had issued a major decision on the relationship between fair dealing and digital locks, concluding that copyright’s anti-circumvention rules do not trump user rights (podcast on the case here). That decision, Blacklock’s Reporter v. Attorney General of Canada, was a big win for user rights because, for the first time, a court ruled that Canada’s anti-circumvention rules (aka digital lock rules) were subject to fair dealing. Last month, the Federal Court of Appeal set aside that judgment, ruling that the declarations in the lower court decision should never have been issued in the first place because they lacked “practical utility.” In basic terms, the case was “moot” since Blacklock’s had tried to withdraw the lawsuit and did not require a ruling. But while rights holders seem ready to celebrate, the reality is that the new ruling does not say the Federal Court was wrong on any of the substantive copyright questions.
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