Canada’s Intellectual Property Firm

The Future of Copyright Law in Canada

Authored byMeika Ellis, Akiv Jhirad

As the world dives deeper into the digital age, copyright enforcement continues to be a challenge with the proliferation of online content hosting and sharing platforms creating a welcoming place for online copyright infringement. Online copyright infringements occur in a context where jurisdiction and liability are blurred, posing the issue of how to remedy online infringement occurring on a global scale.

The Canada-United States-Mexico Agreement (“CUSMA”) signed on November 30th, 2018 attempts to address this issue. The CUSMA, which replaced the NAFTA, includes a comprehensive set of digital trade provisions. These provisions incentivise internet service providers (“ISPs”) to work with copyright holders and take action against infringement.

Despite Canada’s efforts to tackle online infringement through the CUSMA, the issue persists due to the global nature of the internet. When infringement occurs outside the copyright holder’s jurisdiction, domestic courts are unable to provide effective, global remedies to a copyright holder. Addressing these issues will likely require collaboration between nations.

Improved Regulation of ISPs

Currently, Canada’s Copyright Act mandates that ISPs forward notices of copyright infringement to an alleged infringer through what is known as the “notice-and-notice” regime. ISPs have no obligations to take down infringing content. Further, the regime does not require ISPs to provide the identity of the alleged infringer to the copyright holder. These issues were the subject of the Supreme Court of Canada (“SCC”) case of Rogers Communication Inc. v Voltage Pictures, LLC, 2018 SCC 38.

In Rogers, Voltage Pictures LLC (“Voltage”) accused approximately 55,000 people in Canada of illegally sharing digital files of Voltage’s films. The accused were identified through their internet protocol (“IP”) address through Rogers’ networks. In addressing Voltage’s request to launch a reverse class action against the accused, the SCC clarified the scope of ISP obligations under the notice-and-notice regime. The SCC indicated that ISPs are required to keep records that allow the ISP to identify a person subject to a copyright notice, but are under no obligation to provide this information to a copyright holder, thereby making it difficult for copyright holders to take action. This issue is now addressed in the CUSMA, with the responsibility on Canada to amend its laws to abide by the Agreement.

Article 20.89 of the CUSMA provides legal limitations to protect ISPs from liability for copyright infringements out of their control. To be exempt from liability, ISPs need to remove or disable access to allegedly infringing material after obtaining knowledge of infringement. Overall, the CUSMA provides legal incentives for ISPs to cooperate with copyright holders, making it easier for copyright holders to take action.

Effective Regulation of Infringement on the International Stage

Effective international regulation of online copyright infringement is a challenge for courts, as illustrated by the recent battle between Google and Equustek. In Google v Equustek Solutions Inc., 2017 SCC 34, the SCC ordered Google to globally de-index web pages containing infringing content. Google then commenced proceedings in the United States (“U.S.”) District Court, which granted a preliminary injunction to prevent the enforcement of the Canadian order in the U.S.

The U.S. decision exemplifies the uncertain effectiveness that global remedies will have in jurisdictions outside of the ordering jurisdiction. In fact, its decision may make Canadian courts less likely to issue global injunctions for online infringement. Although this may seem like a setback, if courts in every country were to assert jurisdiction over the internet, the online sphere would become over-regulated with many potentially conflicting laws. Essentially, there must be a better way for Canadian courts to be able to domestically govern a global resource.

Global injunctions for copyright infringements should be addressed by legislative reform on an international level. The WIPO Copyright Treaty (“WCT”) currently grants authors the right to communicate digital works to the public, and imposes obligations on member countries to take action locally in instances of copyright infringement. Perhaps what the copyright world needs is a centralised system, like Madrid for trademarks or Hague for industrial designs, but created in such a way that it makes remedying online infringement more effective.

Looking Forward

Online copyright infringement raises difficult questions both domestically and internationally. Canada’s efforts to tackle online infringement through the CUSMA will only be realised once Parliament drafts appropriate legislation. However, the solution lies beyond reform in any one country. The era of online sharing and borderless networking calls for reform on a global scale.