Here are my comments about the Government's Online Intermediaries consultation.
May 31, 2021
To:
Hon.
F-P Champagne, P.C., M.P., Minister of
Innovation, Science and Industry
Francois-Philippe.Champagne@parl.gc.ca
Hon.
S. Guilbeault, P.C., M.P., Minister of Canadian Heritage
Hon. David Lametti, Minister of Justice
copyright-consultation-droitdauteur@canada.ca
(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.
Conclusions
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,
"HPK"
Howard P. Knopf
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