The liability and obligations of online intermediaries are currently under review in Canada. This is with a view to ensure that Canada’s copyright framework for online intermediaries reflects the evolving digital world. With widespread distribution of copyright content on the internet, and a diversification of online intermediaries, the government is revisiting to what extent the copyright framework for online intermediaries still achieves its underlying objectives.
In Canada, intermediaries that primarily enable acts of infringement can be liable for infringement; whereas intermediaries have safe harbour if they merely provide the technical means by which others infringe copyright, using the intermediaries’ services.
Rightsholders have encouraged modifying the current regime, in part over concerns of lost remuneration for uses of content online and challenges to enforcement. The intent being to incentivize platforms that enable content sharing to pay rightsholders for the use of content. By contrast, others argue the current regime is appropriate, and fosters an open internet, innovation, and economic growth.
The consultation paper sets out various options, including:
- recalibrating or clarifying intermediaries' safe harbour, including:
- reconsidering how intermediaries' knowledge of infringement relates to liability,
- introducing additional obligations, including evolving the “notice and notice” regime to a “notice and action” regime, and introducing mechanisms to deal with repeat infringers;
- introducing a new collective licensing regime geared towards further remuneration for use of copyright-protected content on certain platforms through a compulsory licensing scheme or an extended collective licensing scheme;
- fostering greater transparency surrounding rightsholders' remuneration and online uses of their content, including reporting requirements for rights management organizations; and
- clarifying or strengthening enforcement mechanisms, for example, by way of a statutory "website-blocking" and "de-indexing" regime.
The consultation paper is here, and the consultation is open until May 31, 2021.
For questions or assistance in responding to the consultation paper, contact Marks & Clerk.
Note, a further consultation on copyright and artificial intelligence (AI) and the internet-of-things (IOT) is expected this summer. Stay tuned.