Courts continue to grapple with finding an equitable balance between creators and consumers
As copyright law evolves into the digital domain, courts and lawmakers are being asked to continue to find an equitable balance between the rights of creators and users. The approaches being used are a mix of readapting tested tools and the introduction of new ones.
In several recent decisions, federal and provincial courts have reinforced the themes of proportionality and fairness, along with balancing interests, says Stewart McKelvey’s Halifax partner Daniela Bassan, who is chairwoman of the firm’s intellectual property practice group. “There is kind of an ethos that Canadians sometimes talk about, whether it’s part of our culture, whether it’s part of our discourse, or whether it’s part of our jurisprudence; I think this concept of proportionality, balance, fairness comes through in many different areas of the law.
“Even though it may be a private commercial interest at its core, there is a public element,” such as access to and freedom of information or encouraging people to create work, she says. “I do think it is unique to Canada because it does come up quite a bit, over and over.”
What she sees emerging in the digital age is a new approach to the old cease and desist order, re-employment of Norwich orders for disclosure of the identities of accused copyright offenders and de-indexing of sites that infringe copyright by preventing them from turning up in search results. In addition, last year’s decision in Bell Media Inc. v. GoldTV.Biz introduced the concept of website blocking — a first for Canada, although it’s been used previously in British courts.
The success of the blocking argument turned on the principle of whether the injunctive remedy of using an “innocent third party,” inevitably an internet service provider, to block access to an offending website would be just and convenient. Its significance, says Bassan, is that it goes beyond the disclosure of information about websites to prevent access to content on certain websites. In that decision, the Federal Court established a three-part test to be applied to a blocking order: Show that there’s a serious issue; show irreparable harm will occur without the blocking order; and that the balance of convenience lies in the applicant’s favour. There has been concern among internet entities that the order is overly broad and it is being appealed by TekSavvy.
Norwich orders originated from a 1974 British patent case and have essentially been revived to enforce copyright protections in the digital age. It is used when the identity of the perpetrator is hidden and requires the assistance of a third party, again, often an internet service provider, to help determine its identity. The Federal Court confirmed in Voltage Pictures, LLC v. Salna in 2019 that Norwich orders remain a basic remedy for copyright infringement in online environments.
There was an attempt in the Voltage case to use reverse class actions to stop peer-to-peer file sharing of copyright material between users, although it was unsuccessful. Catherine Lovrics, who leads the copyright and digital media practice group at Bereskin & Parr LLP where she is a partner in Toronto, says there is still some potential for its use. “I don’t think the final nail in the reverse class action option has been struck.”
She does, however, expect site-blocking orders to gain much more traction in the attempt to prevent the illegal use of copyrighted material by offending sites run by actors who refuse to respond to litigation and have shown they are not interested in abiding by the rules.
University of Windsor law professor Myra Tawfik, an expert in intellectual property, says third parties have always been involved in copyright. But now, instead of the publishers of books and broadcasters stick-handling the issues, internet service providers have increasingly become the intermediaries. And through the electronic magic of digital connection, there are often no intermediaries at all — users can have direct access to the creators, making that middleman obsolete. While she calls copyright law quite adaptive and resilient despite its flaws, the digital age has also tested copyright.
“I do think that the digital age has actually been really transformative and really it tested the boundaries of copyright, partly because the copyright system was developed out of the relationship between creators of copyright work, intermediaries whose function was to disseminate them,” she says, adding that those intermediators were quite powerful and had the most influence over legislative changes. Now, the creator can engage directly with the end user to bypass the intermediaries. “This led to a different kind of intermediary, the internet service provider. So, the law has had to adapt to kind of manage the relationship and include the internet service provider.”
Another aspect Tawfik considers important is the ability of creators or copyright holders to use technology to limit access to their work through approaches such as paywalls and digital management software. Embedding copy control into the access mechanisms of digitized material to prevent copyright infringement also makes an important exception to copyright almost impossible, she explains, because it stops fair users, such as learners, from having access.
The purpose of the fair dealing exception to copyright law is to allow access for learning and to accommodate people with difficulties to allow them access to knowledge. That could include reformatting a text for the visually impaired without requiring permission or payment.
“The first modern copyright act was passed in 1710 in England and it’s adapted and met the challenges and new technologies. . . . It was an Old World body of law that came to the New World and it adapted to New World conditions in Canada and the United States,” says Tawfik.
There is another challenge in this flatter, wired world, observes intellectual property lawyer Athar Malik, a partner at Clark Wilson LLP in Vancouver, and that is the blurring of geographic boundaries. Enforcing and protecting the work of the constant producer or copyright owner might require a wide lens, he says. So, instead of going to every country to enforce copyright, the creator may just pick the larger market areas for a co-ordinated action.
The website blocking remedy that came out of the Bell Media Inc. v. GoldTV.Biz decision will help in keeping some abuse in check, no matter where the offender is located. But, he adds, “It’s not a perfect solution because, at the end of the day, the Canadian content companies can’t get damages from the actual pirate. But it’s at least a way of mitigating the impact of the piracy occurring.”
More similarities in the laws of different jurisdictions will help, he adds, pointing to the recent U.S./Canada trade agreement, which includes that both countries will have copyright extended to the life of the producer plus 70 years, instead of the current 50.
Lovrics says copyright concerns may well come to the fore following social isolation and distancing during the COVID-19 crisis, which prompted an increased consumption of entertainment streaming. “These pirate services might get a bit of a boon as a result of people having time and being at home. So, I think copyright owners will find a need in the next little while to very closely monitor what’s happening online and taking action to prevent content from being illegally distributed.”
Copyright decisions focusing on internet
Early history of copyright law
1832 - The first Canadian copyright statute, An Act for the protection of Copy Rights/Acte pour protéger la proprieté litteraire was passed in Lower Canada (Quebec)
1841 - The Copyright Act of the Province of Canada was replicated from the first Lower Canadian Act
1868 – That was adopted by the Dominion of Canada
Courtesy of Myra Tawfik
Test for a Norwich order
The Supreme Court of Canada in Rogers Communications Inc. v. Voltage Pictures, LLC developed the test for a Norwich order:
- A bona fide claim against the unknown wrongdoer;
- The person from whom discovery is sought must be involved in the matter under dispute;
- The person from whom discovery is sought must be the only practical source of information available;
- The person from whom discovery is sought must be reasonably compensated for his expenses;
- The public interests in favour of disclosure must outweigh the legitimate privacy concerns.