Canada’s Pointless Pandemic Election and its Implications for Copyright, Content Industries and Digital Platforms

Credit: Elections Canada

For those of my readers outside Canada who may not have noticed, Canada has just held a general election. If many outside Canada were not following this election, many Canadians were also not focused on it. Voter turnout on election day, September 20, was just over 58 percent, close to an all-time low. The fact that the election was held in the middle of a surging fourth wave of the COVID pandemic was no doubt a factor. Another may have been the lack of any burning issues to get out the vote. In fact, Prime Minister Justin Trudeau was hard pressed to explain why he had triggered the election in the first place. The real reason, as everyone knew, was to try to convert a wave of good polling news into a majority government. Going into the election, Trudeau’s Liberal Party was 15 seats short of achieving a majority, (although on the last election day in 2019 it was just 13 seats short of the required 170, with 157 seats). Today it is 12 seats short of a majority, with 158, having gained all of one seat in the 2021 campaign over the total it achieved in the last election. The main opposition party, the Conservatives, lost 2 seats for a total of 119, and the two smaller parties that will hold the balance of power, the separatist Bloc Quebecois and the social democratic New Democrats had minor gains of 2 and 1 seat respectively. As a ploy to gain a majority, Trudeau’s election call was a massive miscalculation as his polling numbers dissipated during the campaign. By election day, the status quo was looking like a good outcome for the Liberals. Trudeau will now need to continue to govern with the support of at least one other party, depending on the issue of the day. The new-yet-old configuration of government in Ottawa will have implications for many stakeholders, including copyright interests and content industries, as well as those closely linked with content distribution such as the digital and high-tech industries.

When Justin Trudeau secured the Governor-General’s consent to dissolve Parliament and trigger the election back in mid-August, all legislation that was in process died on the order paper. Among these were bills to amend the Broadcasting Act to give the broadcast regulator, the CRTC, authority over streaming services and legislation to hold internet platforms responsible for certain types of harmful content disseminated on their services if not removed expeditiously when notified by the authorities. Other initiatives of the previous Trudeau government, such as promised legislation to require digital platforms to pay content providers for the use of news clips, a review of the Copyright Act to address such issues as the role of Artificial Intelligence in copyright and the impact on copyright of the Internet of Things, as well as outstanding commitments under the new NAFTA (USMCA, called CUSMA in Canada) to extend Canada’s term of copyright protection by an additional twenty years, will need to be introduced into Parliament. The Liberal Party platform states that a re-elected Trudeau government will introduce legislation within 100 days to “require digital platforms that generate revenue from the publication of news content to share a portion of their revenues with Canadian news outlets”.

In addition, there are other pressing issues affecting copyright that the “new” Liberal government needs to address, such as dealing with the fallout from the Supreme Court’s recent decision declaring that “mandatory” tariffs for reproducing published materials, even though certified by the Copyright Board of Canada, are only optional for users such as post-secondary educational institutions. This decision has effectively gutted Canada’s collective rights management system. There is also a need to clarify and narrow the expansive fair dealing rules for educational use that have resulted in a precipitous decline in Canadian educational publishing. Finally, there are the specific commitments in the Liberal Party platform, such as the news content issue mentioned above, and a promise to “protect Canadian artists, creators and copyright holders by making changes to the Copyright Act including amending the Act to allow resale rights for artists”.

The Artist Resale Rights (ARR) issue is an example where Canada is out of step with most countries (the US is in the same position) by not enabling artists to recoup a small portion of the selling price of their work when it is re-sold commercially. I documented in a recent blog post some of the inequities that arise when works of art that were originally purchased for a pittance from struggling artists are re-sold for many times the original value years later, yet not a penny goes back to the artist. If the Liberals follow through on this promise, it would seem that these inequities will soon be a thing of the past. As for what other “changes to the Copyright Act” the Liberals have in mind is anybody’s guess. They may address fair dealing and collective licensing, or they may not. The wording gives them lots of wiggle-room.

None of these issues got much or any airtime during the recent election, despite references in the party platforms. The election was instead focused on the handling of COVID, vaccination passports, economic recovery, the environment, gun control, the reason for the election in the first place and, as always, personalities. At one point, I responded to a solicitation from the CBC on issues that citizens could ask the party leaders during the one English-language broadcast debate that was held. I dutifully suggested a couple of copyright questions. To no-one’s surprise, I was not invited to put my questions to the party leaders, and no-one else did either. Copyright is seldom a front-burner issue for most citizens, although it can have a significant impact on a range of issues from economic development to innovation and artistic creativity to cultural expression. About the only time copyright got any news coverage during the campaign was when Warner Media filed a copyright takedown notice with Twitter in the US requiring the removal of a tasteless and risible Conservative Party attack ad against Justin Trudeau that infringed on Warner’s copyright in the 1971 film Willy Wonka and the Chocolate Factory. You can read more about that social media “own goal” here.

Just as the Liberal Party platform made passing reference to copyright, the Conservative platform–which of course will not be implemented since the Conservatives will remain in opposition–contained one notable reference. The platform states that;

Canada’s Conservatives will….recognize and correct the adverse economic impact for creators and publishers from the uncompensated use of their works in a manner consistent with the unanimous recommendations of the Heritage Committee of the House of Commons Report in 2019

For the record, those recommendations from the Heritage Committee report Shifting Paradigms were as follows;

“Recommendation 18

That the Government of Canada amend the (Copyright) Act to clarify that fair dealing should not apply to educational institutions when the work is commercially available

and

Recommendation 19

That the Government of Canada promote a return to licensing through collective societies”

This comes back to the ongoing dispute between the copyright collective Access Copyright and York University where York finally prevailed at the Supreme Court in arguing that they were not required to pay the certified “mandatory” tariff for reproducing materials in Access Copyright’s repertoire. (For the background to this long-running dispute, see here, here, here and here). While York won the point on whether the tariffs were mandatory or not, the issue of whether the university’s use of published materials represented by Access Copyright constituted fair dealing under the education exception was not decided. However, the language used by Justice Abella in delivering the Supreme Court’s decision strongly suggests that if an infringement case were brought, the universities could argue that even though they reproduced and distributed entire works without payment of licensing fees, they were simply assisting students to exercise their individual user rights. Enactment of Recommendation 18 of the Heritage Committee report would deal with this anomaly.

Whether the Trudeau government will be prepared to act on this recommendation remains to be seen. The Liberal platform makes no specific reference to this issue–which has resulted in significant declines in revenues to publishers and authors and has led to a hollowing out of the Canadian educational publishing sector–although in true Liberal fashion it undertakes to throw more money at the problem (“$43 million per year to support Canadian authors and publishers”).  At least if the Liberals do decide to tackle the thorny issue of educational copying, they will know that they should have support from the official opposition.

How successful they will be in pushing forward on their copyright and content agenda under a second minority government remains to be seen. The draft legislation to subject streaming services to the Broadcasting Act ran into a buzz-saw of opposition in Committee from the Conservatives, although it eventually passed the House of Commons only to die in the Senate when the election was called. The main issue was whether requiring platforms to apply algorithms promoting Canadian content to user-generated content was an infringement of free expression, although valid questions could also be asked as to whether streaming services lend themselves to oversight in the same way as the highly regulated world of broadcasting. That legislation passed the House with the assistance of the Bloc Quebecois, which—as the self-appointed defenders of Quebec culture—are generally pro-creator and pro-copyright. However, it was held up in the Senate and did not become law the last time around.

There is an ambitious content and copyright-related agenda that the “new” government will inherit and have to deal with. In executing on plans and promises, the Liberals will have to get the support of one or more of the smaller parties just as they have been doing since 2019. The parliamentary process had been working relatively well, but it required time, patience and sometimes compromise. A Parliamentary majority is a much more pleasant way to govern. But that didn’t happen, so we will have to see how many of the Trudeau government’s stated objectives get translated into law this time around.

© Hugh Stephens 2021. All Rights Reserved.

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