The Senate Standing Committee on Transport and Communications resumes its hearings into Bill C-11 this week with plans for four sessions that will hear from a wide range of witnesses. Given the shortcomings of the House committee hearings – numerous important stakeholders were not given the opportunity to appear – the Senate review this fall provides a critical opportunity to re-examine the bill and to address some of its obvious flaws. With that in mind, this post is the first of a series that highlights some of Bill C-11’s major risks and concerns.
Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP
The Law Bytes Podcast, Episode 136: Jeremy de Beer on SOCAN v. ESA, the Supreme Court’s Latest Endorsement of Copyright Balance and Technological Neutrality
The Supreme Court of Canada’s latest copyright decision – SOCAN v. Entertainment Software Association – affirms yet again that technological neutrality is a foundational element of the law and notably emphasizes that “copyright law does not exist solely for the benefit of authors.” My colleague Jeremy de Beer was an active participant in the case, writing an expert opinion during the Copyright Board phase of the case which reflects the approach that the court ultimately adopted. He joins the Law Bytes podcast to discuss the evolution of music distribution online, this latest case and the court’s commitment to copyright balance, as well as what might come next in the seemingly never-ending battle over Canadian copyright law.
Supreme Court of Canada on Copyright: “Copyright Law Does Not Exist Solely for the Benefit of Authors”
For much of the past two decades, copyright groups have steadfastly sought to deny what the Supreme Court of Canada has repeatedly endorsed, namely that the purpose of Canadian copyright law is to serve the public interest by balancing users’ and authors’ rights. Last week provided the latest episode in the ongoing series as the Court delivered yet another strong affirmation on the importance of copyright balance and the role of technological neutrality, confirming that “[c]opyright law does not exist solely for the benefit of authors.” The decision – SOCAN v. Entertainment Software Association – can read on at least four levels: (1) as a repudiation of SOCAN’s effort to establish a new, additional royalty for the “making available” of music; (2) as a confirmation of the importance of technological neutrality and copyright balance; (3) as an example of the flexibility associated with implementing the WIPO Internet treaties, and (4) as the undeniable entrenchment of Canadian copyright jurisprudence that now features deeply layered precedents on users’ rights.
Parliament may be on a summer recess, but the debate over Bill C-11, which is now in the Senate, continues. Yesterday, I engaged in a Twitter debate with Matthew Gray, an official in the office of Heritage Minister Pablo Rodriguez that ultimately focused on the relative importance of the government’s “policy intention” vs. the actual text of the bill. While officials and Minister Rodriguez regularly point to what they intend the bill to do, experts note that the text does not reflect those intentions.
Bill C-11, the government’s online streaming legislation, has caught the attention of the U.S. government, which raised it as a concern during a recent meeting between U.S. Trade Representative Katherine Tai and Canadian Minister of International Trade Mary Ng. The issue is cited in the U.S. readout of the meeting, though the Canadian readout of the same meeting notably excludes any reference to the issue. The readout specifically states that “Ambassador Tai expressed concern about Canada’s proposed digital service tax and pending legislation in the Canadian Parliament that could impact digital streaming services.” The reference to concerns with a digital services tax has been raised before, but the inclusion of Bill C-11 is new. The concerns may reflect Canadian Heritage Minister Pablo Rodriguez’s decision to regulate user generated content, an approach not found in any other country in the world.