The past year has been an incredibly active one for Canadian digital law and policy with important Supreme Court cases, legislative proposals, committee reports, expert panels, and political promises to reform existing laws and regulation. For this final Lawbytes podcast of 2019, I go solo without a guest to talk about the most significant trends and developments in Canadian digital policy from the past year and think a bit about what may lie ahead next year. I focus on five issues: the “euro-fication” of Canadian digital policy, the debate over the competitiveness of the Canadian wireless market, the many calls for privacy law reform, the future of Canadian copyright reform, and the review of Canadian broadcast and telecom law.
Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP
Copyright
Making the Best of a Bad Provision: Why Canada Should Work Toward a Copyright Term Extension Registration Requirement
The agreement on a revised Canada-US-Mexico Trade Agreement this week featured both good news and bad news. Among the positive changes in the revised agreement is the significant changes to the patent provisions, including the elimination of the ten years of protection for biologics. That provision would have required changes to Canadian law and added significant new costs to pharmaceuticals. Moreover, the retention of the Internet safe harbour provision is a win for freedom of expression in Canada as it will help ensure that free speech is not lost in the current rush to regulate Internet platforms.
On the downside, many of the problematic digital trade provisions remain unchanged (they can also be found in the CPTPP so their inclusion does not change much) as does the requirement for a copyright term extension to life of the author plus 70 years. The additional 20 years of protection beyond the international standard found in the Berne Convention will be costly for Canadians with little discernible benefit.
Taking Value out of the Copyright Tariff Process: The Copyright Board’s Access Copyright Post-Secondary Tariff Decision
In March 2010, Access Copyright filed a tariff proposal with the Copyright Board to cover copying at post-secondary institutions in Canada. The proposed rate was $45 per year per university student and $35 per year per college student. The proposal represented a dramatic increase in the fees paid under the Access Copyright licence, which, when combined with Supreme Court of Canada jurisprudence on fair dealing in the 2004 CCH decision and the growing investment in digital materials, sparked concern among the Canadian education community. In 2012, the Supreme Court of Canada re-emphasized the broad and liberal approach to fair dealing as user’s right and the government would expand the fair dealing purposes to explicitly include education.
The Access Copyright tariff proposal progressed slowly before the Copyright Board, but on Friday, more than nine years after it was first filed, the Board issued its ruling. It established a retroactive tariff for the years from 2011-2014 of $24.80 per university student ($9.54 for college students) and $14.31 per university student ($5.50 for college students) for the years 2015 to 2017. Access Copyright welcomed the decision, arguing that it outlined a reasonable framework for copying in post-secondary institutions.
The LawBytes Podcast, Episode 35: Allen Mendelsohn on Canada’s Copyright Site Blocking Saga
Site blocking has been on the policy and regulatory radar screen for several years in Canada, starting with the Bell-led Fairplay proposal to the CRTC and demands for site blocking as part of the copyright review. With both the CRTC and elected officials rejecting site blocking proposals, rights holders have turned to the courts. Last month, a Federal Court of Canada judge issued a major website blocking decision granting a request from Bell, Rogers, and Groupe TVA to block access to a series of GoldTV streaming websites.
The case is an important one, representing the first extensive website blocking order in Canada. I’ve argued that it is also deeply flawed from both a policy and legal perspective, substituting the views of one judge over Parliament’s judgment and relying on a foreign copyright case that was rendered under markedly different legal rules than those found in Canada. Allen Mendelsohn, a Montreal based Internet lawyer and sessional lecturer at McGill University joins the podcast this week to help sort through the issues.
Canadian Copyright Website Blocking Underway As TekSavvy Appeals Federal Court Ruling
Last week I wrote about a federal court ruling that opened the door to copyright website blocking in Canada without Parliament establishing site blocking rules or the involvement of the CRTC. The decision is flawed from both a policy and legal perspective, substituting the views of one judge over Parliament’s judgment and relying on a foreign copyright case that was rendered under markedly different legal rules than those found in Canada. I concluded by noting that the case should be appealed and just over a week later, TekSavvy, the independent ISP that stood alone in contesting the blocking order, did just that. Even as the appeal was launched, however, the major Canadian ISPs began blocking access to the specific webpages identified in the court order.
Recent Posts
The Law Bytes Podcast, Episode 232: What Will Canadian Digital Policy Look Like Under the New Liberal Carney Government? 
The Law Bytes Podcast, Episode 231: Sara Bannerman on How Canadian Political Parties Maximize Voter Data Collection and Minimize Privacy Safeguards 
The Law Bytes Podcast, Episode 230: Aengus Bridgman on the 2025 Federal Election, Social Media Platforms, and Misinformation 
The Law Bytes Podcast, Episode 229: My Digital Access Day Keynote – Assessing the Canadian Digital Policy Record 
Queen’s University Trustees Reject Divestment Efforts Emphasizing the Importance of Institutional Neutrality
