Consultations on Copyright and Online Intermediaries

April 14, 2021

The Government of Canada today announced consultations on copyright and online intermediaries (examples include Internet service providers, cloud storage services, web hosting services, social media and other public content-sharing platforms and search engines.) A consultation paper outlines potential options for consideration. The options relate to:

• intermediaries’ protections against liability for copyright infringement,
• rights holder remuneration models,
• transparency obligations
• and the effective enforcement of copyright.

News Release: The Government of Canada Launches Consultation on a Modern Copyright Framework for Online Intermediaries

OTTAWA, April 14, 2021

The Government of Canada is committed to ensuring the Copyright Act remains consistent with modern realities and that revenues of web giants are shared fairly with Canadian creators.

Building on the stakeholder engagement and committee reports from the 2019 Parliamentary Review of the Copyright Act and other research, the Honourable Steven Guilbeault, Minister of Canadian Heritage, and the Honourable François-Philippe Champagne, Minister of Innovation, Science and Industry, are launching a public consultation today on Canada’s copyright framework for online intermediaries to make sure it reflects the evolving digital world.

As the distribution and use of copyright-protected content online have expanded and the services of online intermediaries have grown and diversified, it is important to ensure that Canada’s copyright framework for online intermediaries still achieves its underlying objectives. The Copyright Act must adapt to ensure that the use of copyright-protected content online is protected and individual rights and freedoms in an open Internet are safeguarded, while facilitating an environment where the digital market can thrive.

The Government is publishing a consultation paper that outlines potential options for stakeholder and public consideration. These options relate to intermediaries’ protections against liability for copyright infringement, rights holder remuneration models, transparency obligations and the effective enforcement of copyright.

The Government welcomes all comments providing additional perspectives or evidence concerning these issues and potential options. Participants have until May 31, 2021, to share their input.

Responses received will be made available following the consultation period and will help inform the Government’s policy development process as the Government considers how the Copyright Act needs to evolve and how the revenues of web giants can be shared more fairly with Canadian creators.

Quotes

“Our Government is committed to meaningful platform governance, including the modernization of the Broadcasting Act, a new framework for online harms, news media remuneration and copyright reform. These efforts will contribute to a healthier online environment for Canadians, creators and media. In the area of copyright, we need a more up-to-date framework to ensure more accountability and better remuneration and transparency.”

—The Honourable Steven Guilbeault, Minister of Canadian Heritage

“For Canada to have an innovative and flourishing digital economy, we must protect copyright online. With this consultation, we aim to strike the balance between facilitating broad, lawful access to copyright-protected content, and safeguarding individual rights and freedoms in an open Internet. We have launched this process to hear the diverse perspectives of stakeholders, from online intermediaries to those holding copyrights, as well as any Canadian who wants to share input, to make sure Canada maintains a balanced copyright framework.”

—The Honourable François-Philippe Champagne, Minister of Innovation, Science and Industry

Quick facts

• The Government is taking a phased approach to the review of the Copyright Act while considering the recommendations from the Parliamentary committees. From February 11 to March 31, 2021, the ministers consulted on how to implement Canada’s commitment under the Canada-United States-Mexico Agreement to extend the general term of copyright protection. An additional consultation on a modern framework for artificial intelligence and the Internet of Things will be launched by summer 2021.
• Online Intermediaries:
  • Online intermediaries are entities that facilitate access to online content, including copyright-protected content, which vary widely in the services they offer as well as their size (for example, Internet service providers, “cloud” storage services, web hosts, social media and other public content-sharing platforms and search engines).
• Artificial Intelligence and the Internet of Things:
  • Artificial intelligence (AI) is a technology intended to replicate human thought by analyzing, learning and reacting to challenges without human direction. AI serves a role in software and technologies by customizing the user experience, simplifying the analysis of data or reducing the costs of human labour.
  • Internet of Things (IoT) refers to networks of devices equipped with software and sensors that connect and exchange data with other devices using the Internet. Common IoT devices include smartphones, televisions and vacuums. IoT is also significant for the medical, agricultural and manufacturing sectors.

Consultation on a Modern Copyright Framework for Online Intermediaries

Background

The dissemination and use of copyright-protected content on the Internet has expanded in recent years. Online intermediaries – the entities that facilitate access to such content – have also proliferated and diversified. In some cases, they now play more active roles in user activities involving copyright-protected content. These developments have increasingly brought into focus the liability and obligations of online intermediaries, which is an evolving area of law around the world. In Canada, questions have emerged regarding the extent to which the copyright framework for online intermediaries still achieves its underlying objectives, including protecting and encouraging the use of copyright-protected content online, safeguarding individual rights and freedoms in an open Internet and facilitating a flourishing digital market.

Consultation

The goal of this consultation is to help the Government ensure that Canada’s copyright framework for online intermediaries reflects this evolving digital world. The Government welcomes all comments providing additional perspectives or evidence concerning these issues and potential options.

How to Participate

The paper for the Consultation on a Modern Copyright Framework for Online Intermediaries is available online in both HTML and PDF format. Comments may be e-mailed to copyright-consultation-droitdauteur@canada.ca until May 31, 2021. Comments received will be made available following the consultation period and will help inform the Government’s policy development process. In order for the Government to make accessible versions of submissions available following the consultation period, participants are requested to submit their comments in formats easily convertible to HTML (e.g., e-mails or Word documents) with descriptive text for any tables or graphics. Guidance for preparing descriptive text may be found in the Government’s Content Style Guide.

A Consultation on a Modern Copyright Framework for Online Intermediaries

Executive Summary

The dissemination and use of copyright-protected content on the Internet has expanded in recent years. Online intermediaries – the entities that facilitate access to such content – have also proliferated and diversified. In some cases, they now play more active roles in user activities involving copyright-protected content. These developments have increasingly brought into focus the liability and obligations of online intermediaries, which is an evolving area of law around the world. In Canada, questions have emerged regarding the extent to which the copyright framework for online intermediaries still achieves its underlying objectives, including protecting and encouraging the use of copyright-protected content online, safeguarding individual rights and freedoms in an open Internet and facilitating a flourishing digital market. The goal of this consultation is to help the Government ensure that Canada’s copyright framework for online intermediaries reflects this evolving digital world.

Canada’s copyright framework establishes liability for intermediaries that infringe copyright or serve primarily to enable infringement by others. This liability is counterbalanced by certain protections, including “safe harbours” where intermediaries merely provide the technical means by which others infringe copyright by using the intermediaries’ services. Some intermediaries are also subject to obligations to forward notices of claimed infringement received from copyright owners to the intermediaries’ users. Recently, certain intermediaries have also been ordered by courts to disable access facilitated by the intermediaries’ services to potentially infringing content or activities.

This framework is the subject of mounting debate and study. Many rights holders have argued that it effectively diminishes their remuneration for uses of their content online and impairs their enforcement efforts. They have therefore argued in favour of modifying the safe harbour protections to incentivize public content-sharing services to pay rights holders equitably for uses of their content on those services’ platforms. They have also advocated for imposing greater obligations on intermediaries to prevent or stop infringement. By contrast, many intermediaries and others have argued that Canada’s laws sufficiently protect copyright online and intermediaries’ current protections from liability and enforcement obligations promote an open Internet, advancements in online services and economic growth in Canada. Examples from other jurisdictions, committee observations and recommendations arising from the 2019 Parliamentary Review of the Copyright Act and additional research previously conducted or commissioned by the Government all shed further light on these issues.

The Government is considering how best to respond to these trends and perspectives. Possible Government actions could be to:

1. clarify intermediaries’ safe harbour protections against liability for copyright infringement, including how intermediaries’ knowledge of infringement and content-related activities affect their liability as well as their attendant obligations;
2. compel remuneration of rights holders through collective licensing of their copyright-protected content on certain platforms;
3. increase transparency in rights holders’ remuneration and online uses of their content; and
4. clarify or strengthen rights holders’ enforcement tools against intermediaries, including by way of a statutory “website-blocking” and “de-indexing” regime.

The Government welcomes all comments providing additional perspectives or evidence concerning these issues and potential options. Comments may be e-mailed to copyright-consultation-droitdauteur@canada.ca until May 31, 2021. Comments received will be made publicly available following the close of the consultation.

(Via Government of Canada)