Emily Chow is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

I recently attended the Copyright Society of the USA’s event, , which featured IP Osgoode’s own Professor David Vaver alongside Professor Ysolde Gendreau from the University of Montreal in a discussion regarding the Supreme Court of Canada’s recent decision in The unanimous decision written by Rowe J. clarified provisions of the , ruling that the Act only requires users to pay one royalty fee to stream works online as opposed to the two fees proposed by . You can read more about the decision in my summary published on the last week.

After brief introductions, the two speakers began by providing necessary context for the recent decision, including Parliament’s intentions behind the 2012 amendments to the Copyright Act. Prof. Gendreau first highlighted the three main copyrights enshrined in the Act’s : the right to produce or reproduce a work, to perform a work in public, and to publish the work. Section 3 includes several subsections which list various “examples” or “actions” encompassed within these rights – the relationships between the main rights and the subsections, Prof. Gendreau highlighted, were key questions before the court. The speakers also discussed a previous SCC decision that interpreted for the first time back in 2012; in a narrow 5-4 majority, held that the act of downloading a work did not amount to “communicating” said work to the public by telecommunication under section 3(1)(f) (para 4). Furthermore, “making available” is not a separate and compensable right, but rather part of the communication right encompassed within 3(1)(f).

Profs. Vaver and Gendreau briefly touched upon the use of international laws and treaties in interpreting domestic legislation, cautioning against cases of the “tail wagging the dog” in statutory interpretation. They emphasized the importance of interpreting domestic statute first, and international law () is a useful but secondary factor that provides context.

Interestingly, the speakers differed in their opinions about who the Copyright Act ultimately protects. While Prof. Vaver believed that the Act seeks to balance the rights of end users with original authors, Prof. Gendreau was of the belief that the ������’s protections lean towards the side of author. However, both noted that the SOCAN v ESA decision appears to freeze copyright as it is when the new technology is introduced, rather than growing alongside the subsequent adoption and growth. They both found that the SCC decision made a firm distinction between the acts of downloading and streaming, where in reality the line is blurred by a user’s ability to bookmark and cache online content.

What are your thoughts on the recent SOCAN v ESA decision? IP Osgoode invites you to share your thoughts in the comments section below.

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Emily Chow is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

On July 15, 2022, the Supreme Court of Canada (“SCC”) released its for the case Society of Composers, Authors and Music Publishers of Canada (“SOCAN”) v. Entertainment Software Association (“ESA”). The unanimous decision written by Justice Rowe clarified provisions of the ��(the “A����”), ruling that the Act only requires users to pay one royalty fee to stream works online as opposed to the two fees proposed by .

Judicial History

In 2012, Parliament amended the Copyright Act to align copyright legislation with the , which Canada signed in 1997. Among the changes was the addition of section which was meant to clarify subsection ��defining “communication of a work or other subject‑matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public.”

As the central authority for the approval of tariffs, the held proceedings to determine the amount of royalties to be paid, receiving submissions from various groups on how to interpret the new sections of the Copyright Act. , a music licensing organization representing over 175,000 music creators, publishers and visual artists, argued that s. 2.4(1.1) required royalties to be paid whenever a copyrighted work was posted on the Internet for public access. The Copyright Board concurred, deeming that the act of making works available was in itself a separately protected and compensable activity. In effect, there would be two payable royalties: one for when the provider makes the work available online, and another for when a user actually streams or downloads a work.

The Federal Court of Appeal the Copyright Board’s decision, concluding that Parliament did not intend to introduce the two-royalties system for users accessing works online.

Key Takeaways

Although differing in the exact standard of review for the Copyright Board’s decision, the SCC unanimously dismissed SOCAN and Music Canada’s appeal. The SCC found that the Copyright Board and SOCAN’s interpretation of the Copyright Act’s new sections undermined the purpose of the Act itself. As per the principle of , “distributing functionally equivalent works through old or new technology should engage the same copyright interests […] what matters is what the user receives, not how the user receives it” absent parliamentary intent to the contrary. Section 2.4(1.1) merely clarifies that a work is “communicated” when it is made available or uploaded – as , streaming begins when the work was made available online and continues throughout to the end user’s accessing of the work. Thus, section 2.4(1.1) does not entitle authors to an additional “making available” royalty for making the work available online. It is merely part of the public performance right enshrined in section 3(1)(f).

The SCC also addressed two non-copyright specific issues relevant to the larger practice of law in Canada. Firstly, the SCC recognized a under to apply for instances of concurrent first instance jurisdiction, which allows both administrative bodies and courts to have this first instance jurisdiction over a legal issue in a statute (). Secondly, the Court reiterated the role international treaties play in statutory interpretation. Although WIPO’s Copyright Treaty is relevant to the statutory interpretation of the Act, it cannot “overwhelm clear legislative intent” (). The SCC found that the Copyright Board erred by privileging the Copyright Treaty and Canada’s signatory obligations over the domestic Copyright Act in its interpretation.

The Copyright Society of the USA will host a , breaking down the decision and exploring its broader implications for all stakeholders in the arenas of licensing, collective administration, and enforcement. The event features IP Osgoode’s own Professor David Vaver alongside Professor Ysolde Gendreau from the University of Montreal. It will be taking place virtually on Wednesday, August 3, 2022, at 12pm EST. Details and registration information can be found

Further reading:

Breakdown of SOCAN v ESA’s administrative law related holdings:

US Government’s Making Available Study:

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Emily Chow is an��IPilogue��Writer and a 2L JD Candidate at Osgoode Hall Law School.

In the age of streaming, social media, and subscription-based entertainment platforms, critics have called for amendments to Canada's , which was last updated in 1991 – long before the internet we know today materialized. On February 2, 2022, Minister of Canadian Heritage Pablo Rodriguez , proposing sweeping changes to Canadian broadcasting regulation and policy directives. Referred to as the Online Streaming Act, this proposed legislation purports, among other things, to uplift and amplify Canadian creators by regulating online streaming services such as YouTube, Disney+, Amazon Prime Video, and Netflix.

Its predecessor, Bill C-10, was passed by the House of Commons but was unable to secure Senate approval before the dissolution of Parliament in 2021. Like Bill C-10, the proposed Online Streaming Act seeks to bring unregulated digital media platforms within the mandate of the Canadian Radio-television and Telecommunications Commission (CRTC). Currently, these foreign-based platforms operate outside the regulation of the CRTC as distinct from traditional TV/radio broadcasts, and thus are not required to invest significant resources in Canada's domestic creative industries. The Canadian broadcasting, film and television production sectors are substantial players in the Canadian economy, accounting for approximately $14 billion to Canada's GDP in 2019 and predicted to rise in the coming years. According to a poll cited by the Canadian Media Producers Association (CMPA),

The Online Streaming Act coins the concept of an "online undertaking," broadly defined as "an undertaking for the transmission and retransmission of programs over the internet," giving the CRTC wide discretion in determining what is considered a "program" under its framework. Furthermore, the CRTC would be empowered with the ability to order and impose conditions upon online services to advance various policy objectives, including promoting Indigenous and racialized community-produced content. ��

Reactions to the proposed legislation have been mixed. The CMPA, which represents over 600 independent production companies across Canada, have launched a They argue that the Online Streaming Act will redirect some of the streaming giants' profits back into Canada's creative sectors and make it easier for Canadian audiences to access Canadian and Indigenous content outside platform algorithms. Jennifer Brown, CEO of the Society of Composers, Authors and Music Publishers of Canada (SOCAN) told The Globe and Mail that she thinks .

Others are concerned with how the proposed amendments would affect user-generated content and individual rights to curate one's own media feed. Ramneet Bhullar from OpenMedia.org takes issue with , arguing that the threshold of "Canadian"-ness is inherently problematic and that the CRTC's expanded powers will only amplify "officially recognized content", rather than the content individual consumers want to see.

YouTube also spoke to CTV News, Youtube noted that arbitrarily promoting Canadian content could skew their algorithms. These algorithms take into account whether a video has been watched, ignored or turned off part way, thus affecting how the content is promoted.

Michael Geist, a law professor from the University of Ottawa that he believes “the starting point in the bill is that all audio-visual services anywhere in the world with some Canadian users or subscribers are subject to the Canadian jurisdiction and it will fall to the Commission to establish thresholds exempting some services from regulation. However, even with some exemptions, the Canadian approach will require registration and data disclosures, likely leading many services to block Canada altogether, reducing choice and increasing consumer cost.”

is currently at consideration in committee at the House of Commons, having completed its second reading as of May 12, 2022.

Further Reading:

Bill C-11 in its entirety:

CMPA's Campaign to pass the Online Streaming Act:

Global News: What’s a Canadian Film?

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The , filed on behalf of the appellants, thirty-four Australian and��American companies that either own or exclusively license the copyright in thousands of commercially released films and television programs. The respondent, iiNet, is . The case began nearly four years ago in November 2008, when AFACT alleged that iiNet’s conduct in ignoring repeated requests to disconnect users said to be involved in illegal content swapping constitutes authorization of copyright infringement. In response, iiNet asserted that AFACT was asking them “” despite their failure to provide adequate evidence. The High Court agreed, noting that (para. 138) used to obtain the information on their notices to the ISP. iiNet further claimed that ”

Three questions, largely of fact, determined the outcome of this case. First, whether iiNet had the power to prevent primary infringements committed through BitTorrent use. Second, whether reasonable steps, such as warnings and suspension or termination of infringing accounts, were taken to prevent these infringements. And lastly, whether and to what extent the relationship between iiNet and its customers have bearing on these questions.

The Court observed that while the relationship between iiNet and its customers involved the provision of technology, iiNet had no direct power to prevent primary infringements through technical power and could only ensure that result indirectly by terminating customer contracts. Furthermore, the inaction from iiNet resulting from AFACT’s notices was not due to indifference but rather unwillingness to act based solely on information provided from AFACT.

The case at hand demonstrates a significant departure from what Matthew Rimmer called a “” concerning authorization of copyright infringement. Indeed, a host of earlier cases found intermediaries liable. In Telstra Corp v Australasian Performing Right Association , the High Court held Telstra, a telecommunications carrier, directly liable for the playing of music by its subscribers to their clients despite the fact that Telstra had no control over the content of the music played.

Similarly, in Universal Music Australia Pty Ltd v Cooper , Tamberlin J held that the proprietor of a website that provided links to music files on other websites was liable for authorizing copyright infringement. Tamberlin J also considered whether the “safe harbour provisions” introduced by the could apply to ISPs. Section 29(b)(iv)(D) requires that the service provider was “” Since the ISP in question did not act expeditiously, Tamberlin J concluded that the safe harbour scheme could not apply to the website’s ISP even if AUSFTA had been inducted at the time of the infringements.

iiNet had submitted safe harbour defences, which would have been successful at the��trial level had authorization of infringement been found, but were later dismissed by the Full Court, stating that iiNet had not satisfied the conditions necessary to attract the benefits of the provision.

The results of Roadshow Films Pty Ltd v iiNet Ltd also departed from another High Court ruling, University of New South Wales v Moorhouse (interestingly, a decision considered but not followed in CCH Canadian Ltd. v. Law Society of Upper Canada ) where the failure by a university to exercise supervision over photocopying in their library amounted to authorization of copyright infringement. The facts in Moorhouse were distinguishable because “” (para. 61).

The response iiNet CEO Michael Malone imparted was quite conciliatory. "" he said. ""

In contrast, AFACT began last December.

Nancy Situ is a JD candidate at Osgoode Hall Law School.

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by Fredrik Neij, Gottfrid Svartholm Warg, and Peter Sunde, the Pirate Bay has grown into one of the most frequented BitTorrent websites on the internet. Through the site, it is estimated that between users from around the world swap large files and content with each other.�� Studies have found that on average, BitTorrent traffic accounts for Furthermore, it is believed that a significant portion of the content transferred via BitTorrents is copyrighted and transferred illegally without the permission of rights holders. Though it is creators and owners of copyrighted works are concerned that BitTorrents and specifically the Pirate Bay are eroding their market by facilitating the infringement of their works. Because of these concerns, law enforcement agencies and copyright holders have taken action against BitTorrent websites such as the Pirate Bay.

against Pirate Bay in January 2008 accusing the three founders and ISP owner, Carl Lundström, with the crime of facilitating copyright infringement. If the prosecution is able to prove that the accused intended to encourage unlawful sharing of copyrighted material via The Pirate Bay, then they may face up to two years in prison, fines of $180,000 and civil damages of $13 M.

The Technology
BitTorrent is a peer-to-peer (P2P) communication protocol that allows users to transfer large amounts of content over the internet quickly.�� What is unique about the BitTorrent protocol as compared to other similar P2P file-sharing programs such as LimeWire, Bear Share, Kazaa, eDonkey2000, etc, is that it is a highly decentralized infrastructure. It distributes content quickly by allowing users to download content from many peers in parallel and then begin uploading to other peers before the entire content has been received.

To download content from a peer a user must first have the corresponding .torrent file. This .torrent file is small and found on websites (though feasibly it could be found anywhere such as email, newsgroups, etc). Contained within the file is the necessary information for a user’s BitTorrent application to find and download the desired content from the peers. Among other things it contains file names, sizes, and links to trackers. A tracker is an application that is hosted on an internet server and is responsible for listing the peers that are currently sharing the desired content. When a user’s BitTorrent application opens the .torrent file, it contacts the tracker via the link, receives a list of peers that are sharing the desired content, then begins to download different chunks of the desired content from multiple peers in parallel.

Pirate Bay plays a special role in this scheme. First, they host a website where peers can upload .torrent files. Second, they allow other users to search for and download the .torrent files that reside on their website. Third, they also host a tracker that maintains a list of peers that are actively sharing the content. At no time is the desired content stored or transferred via the Pirate Bay website or network. Pirate Bay is theoretically only a website of links that point to content.�� Not only does this minimize the computer and network resources Pirate Bay needs to service 22 million users, but it also provides a viable legal defence to copyright infringement.

'It's like Google'
One of the main defenses used by BitTorrent websites is that they are simply another internet technology that allows users to post, search and download content. The technology is agnostic – it does not differentiate between copyrighted and non-copyrighted content. It is up to the end user to determine how they will use the technology. As managers of the website, they only provide the technology but do not differentiate between legal and illegal sharing of files between users. This monitoring aspect is left up to the users that upload the .torrent and download the desired content.

As such, the services provided by the Pirate Bay and other BitTorrent websites (eg. IsoHunt) are frequently .�� Both technologies search and provide links to content on the internet not the content itself. While this may be true, there are key differences between the two technologies that should be taken into account.

Google’s technology crawls through the internet, scanning webpages, indexing key-words, and cross-referencing with other webpages.�� While Pirate Bay may perform some searching and indexing of only .torrent files by crawling the web and other torrent websites/indexes, a significant number of .torrent files are actually uploaded by users of the Pirate Bay – a feature which is not available on Google’s search engine.�� It is true that a user may be able to find .torrent files via Google through using specific search parameters (eg. filetype:torrent <file name>),�� and that the search results may even be similar to the output from a torrent site, however, Google does not store the .torrent file locally.�� Even Google’s cache feature (which retains website information on a local Google server), does not retain the .torrent file but rather just the webpage pointing to the .torrent file.

Trackers are an important part of the BitTorrent technology but it is difficult to find a parallel in Google’s search engine. The links provided by the Pirate Bay tracker are usually not to static IP and website addresses but rather end-users with dynamic IP addresses who are not always online. By not having static IP and website addresses it makes it more difficult for owners of copyright to contact and enforce their rights against end-users that violate their copyright.�� This is further exacerbated by the BitTorrent technology that allows swarms (hundreds) of users to upload and download files simultaneously.�� Instead of sending an email to a webmaster of a webpage, a copyright holder would need to track down the dynamic IP addresses of transient users. Even if the owner of the copyright is able to gather the dynamic IP addresses, ISPs are unlikely to provide the real identity of the subscriber behind the IP.�� This may change, however, as the that would allow rights holders to force ISPs to provide subscriber information so they can be sued for copyright infringement. While this new law may make it easier to enforce copyright in Sweden, it will be ineffective against the remaining 25 million Pirate Bay users in the other jurisdictions of the world without a similar law.

One of the main distinguishing factors between Google and Pirate Bay may not actually have anything to do with the technology. Pirate Bay pride themselves on the lack of cooperation and goodwill they provide to those seeking to protect their copyright. Copyright holder requests for removing content were denied by Pirate Bay and Google on the other hand has made some efforts to implement technologies to on their YouTube service, and respect to copyrighted works on their search service.

Finally, unlike Pirate Bay, Google provides more than just links to large files that can be downloaded. Google combs the internet for all websites and content and provides a valuable service by making it all searchable.�� While Google undoubtedly collects and lists links to copyrighted material, there is still a vast majority of links that point to content made freely available to the general public. The Pirate Bay search, on the other hand, is only limited to .torrent files. An application that allows users to download large files at fast speeds to a personal computer inherently seems to attract the potential for greater copyright infringement. This is evident by simply looking at the ratio of links pointing to copyrighted material vs public works. Few would disagree that Pirate Bay has a significantly higher ratio of links allowing the infringement of copyrighted content than Google.

Like Google, the BitTorrent protocol and websites such as the Pirate Bay are extremely powerful tools that can be.�� However, caution must be used in drawing too close of an analogy between the two technologies. Perhaps this is no more evident than through personal experience. If one were to navigate to the Pirate Bay website at this moment what would they find? An honest observer would certainly conclude that the majority of links on the Pirate Bay . Could one say the ?

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