IIC Canada: How deep does copyright review need to go?

It’s been five years since Canada’s copyright laws got a major makeover and now the federal government is going to determine whether more changes are needed (a re-examination every five years is now part of the rules). A session at the International Institute of Communications’ Canadian event in Ottawa on Tuesday dove into what needs to change, or not.

A paper written by Jay Kerr-Wilson, a partner at Fasken Martineau DuMoulin, and Kristina Milbourn, director of copyright and broadband at Rogers Communications, raised a number of issues including the need for copyright reform, the potential for streamlined decision making within the Copyright Board, and trade related issues.

Milbourn suggested that because the big overhaul in copyright law only happened five years ago, it may be too early for another round of major changes. “Is there even appetite to make amendments, either wholesale or even minor tweaks, given that in the lead up to the 2012 process that was very extensive, it was a long time coming and it really represented a significant overhaul in copyright law?” she asked.

Even though the time for big change isn’t on the horizon, this doesn’t mean that some aren’t required. Milbourn argued content owners still have to fight to protect the rights they hold over their works. Particularly, the notice and notice regime in Canada hasn’t stemmed the tide on piracy. There are solutions, she added: Criminalize the making of content available illegally, explore site blocking options, and disincentivize or create a chilling effect on Canadians watching pirated content.

As well, in the midst of the government mandated review of the Copyright Modernization Act, the federal government has also asked the Board to look at its internal processes. Kerr-Wilson noted that one of the big issues to be studied is the time it takes the Board to render decisions. “The poster child for the problems with Copyright Board process is the online music services decision that was just released in August 2017 more than three years after the record closed, so after closing arguments,” he said. The decision stretches back seven years with changes in rates having to be applied retroactively.

“So it’s not an ideal situation,” said Kerr-Wilson.

Over the years, there have been various studies done – academic and Parliamentary – that have concluded that the Copyright Board needs to improve its decision making processes. Because decisions take years to be rendered, rate changes need to be adjusted retroactively – and this hurts the rights holders.

There are several ways the Board can improve the way it conducts business. Kerr-Wilson pointed to a few in his presentation such as mandating a timeframe in which decisions have to be rendered (12 months was mentioned as an option), implementing case management, awarding costs against parties, and requiring more information at the beginning of proceedings.

“Apart from the statutory deadline and the power to award costs, the Board can do most of this list tomorrow if it wanted to,” he said. “So the question is what is the consultation hoping to achieve? Are you going to go through the whole process of amending the Act to get the Board to do what it could do now? At some point shouldn’t someone just suggest to the Board that it start doing some of these.”

It’s generally agreed that copyright law lets some consumer activities off the hook with the focus being on – as session moderator Stephen Zolf, a partner at Aird & Berlis noted – the “original sin.” Kerr-Wilson disagreed but said the goal is to go after the people making the content available in an illegal manner.

People engaged in an activity in the privacy of their home, “those aren’t the people that we need to target. It’s the ones who are making a commercial enterprise in exploiting somebody else’s copyright for financial gain. That’s where the focus of the Act was in 2012,” said Kerr-Wilson.