Here are my comments about the Government's Online Intermediaries consultation.
May 31, 2021
Hon. F-P Champagne, P.C., M.P., Minister of Innovation, Science and Industry
Hon. S. Guilbeault, P.C., M.P., Minister of Canadian Heritage
Hon. David Lametti, Minister of Justice
(In PDF and Word)
Re: Consultation on “Internet Intermediaries”
The following comments are in my personal capacity and do not necessarily reflect the views of any clients of my firm or my firm itself.
1. This involves more rhetoric about “web giants”. This is related to and a further extension of the ultra-controversial Bill C-10. See page 5 and FN 3. This is all about “dirigiste” politics in the name of “culture”.
2. There is no sufficiently precise or even useful definition of an “online intermediary”. For example, could it include universities, colleges and libraries? See Executive Summary and Section 3.1.
3. The Equustek judgment of the Supreme Court of Canada (“SCC”). should not be relied upon any more than necessary. It was based upon very particular facts and was not grounded in copyright law. Google’s submissions were arguably problematic. As to the GoldTV case. See page 7 and FN 13 - which wrongly states that GoldTV has been “granted leave to appeal”. The appeal was as of right. Teksavvy was the appellant and not GoldTV. These misstatements frankly raise concern about the quality of the legal analysis in this paper. While Teksavvy recently lost this appeal, it could end up in the SCC where it may indeed be reversed.
4. The paper simply fails to mention the “making available” litigation – which will be heard by the SCC sometime next year.
5. There is a very questionable and simplistic take on US, EU and Australian law on pp. 8-9.
6. Sections 4.2 and 4.3.2 show yet another Government effort to make work for the Copyright Board and boost its budget even further.
7. Option 4.2 is a directly aimed at making tariffs mandatory. See page 14-15 and FN47 – which at least acknowledges the currently pending Access Copyright v. York University SCC case – but is oblivious to the issues involved.
8. “Extended collective licensing” should be anathema for Canada. This concept is a non-starter in the USA and makes sense only for small socialist countries such as the Nordic countries. However, it appears that lobbyists driven by vertically integrated interests are pushing it in Canada. Compulsory licensing is also anathema for Canada. See page 14.
9. What about freedom of expression – which is looming large in the C-10 debate? This is barely mentioned and not analyzed.
10. Criminal law has no place in this discussion. See s. 4.4.2
11. Appendix “A” gives short shrift token recognition to “Broader Policy Issues”. See page 21.
1. This is unnecessary, untimely and wasteful “consultation theatre” in the words of Michael Geist.
2. The Government has not even published the submissions on its first term extension paper, which were provided two months ago. There is no good reason for this.
3. The Government should concentrate on moving forward from the INDU Committee Report – and not embarking on chaotic and diversionary distractions.
4. The Government should stop attempting to make work for the Copyright Board. If the Board is to serve any useful function, it might do so by developing tariffs in the public interest that could earn acceptance in the market place based upon reasonable terms, conditions and rates and not by threats and compulsion. Any attempt to make tariffs mandatory through legislation will be extremely controversial and legally problematic.
5. The Government should let current court cases work their way through the judicial system – before it attempts to interfere in a heavy-handed, badly researched, unnecessary and premature manner.
Yours very truly,
Howard P. Knopf