Corus

A Consultation on a modern copyright framework for online intermediaries

Government of Canada

Comments of Corus Entertainment Inc.

May 31, 2021

Introduction

1. Corus Entertainment Inc. (“Corus”) appreciates the opportunity to participate in the Government of Canada’s “Consultation on a Modern Copyright Framework for Online Intermediaries.”
2. Corus is proud to be Canada’s leading independent, pure-play media company. Our portfolio of assets and platforms includes 34 specialty television networks, 15 conventional television stations, 39 radio stations, Canada’s largest animation studio (Nelvana), Canada’s largest independent book publisher (Kids Can Press), a leading animation software company (Toon Boom) and international programming export businesses (Nelvana and Corus Studios).
3. Through this network of platforms and assets, Corus delivers stories to audiences at home and abroad, supports thousands of Canadian artists, journalists and other creators, and connects Canadian communities. Our goal is to compete in the global media industry, and remain a pillar of the Canadian creative sector and communities across the country.
4. At the core of our strategy is content. Content we create and commission. Content we licence to and from others. Content we import from, and export to, other markets. Reinforcing all of this content are intellectual property rights conferred by federal legislation. In short, our business – indeed any modern, content-based undertaking – depends on a fair, efficient and predictable copyright framework.
5. As the government’s consultation paper rightly observes, “the dissemination of copyright-protected content on the Internet has expanded in recent years.”^{Footnote 1} The meteoric rise of Internet-based content delivery has turned traditional media business models on their heads: altering audience consumption habits, introducing new players, shifting power dynamics and fully globalizing the industry. This evolution has concurrently raised complex legal and policy issues for governments around the world. Perhaps the most urgent of these relate to rules for “online intermediaries” who increasingly facilitate access to copyright-protected content in all of its forms.
6. Accordingly, this consultation is timely and crucial. The Consultation Paper poses pertinent questions, and proposes important reforms. In this document, we will share our perspective on two issues in particular:
   • Measures to strengthen enforcement against online infringement; and,
   • Targeting new remuneration requirements to intermediaries not captured by existing copyright frameworks.

   In one significant respect – online infringement – Corus does not believe existing legislative tools reach far enough into the activities of online intermediaries and we encourage reforms. Conversely, we caution against extending the reach of federal law into remuneration regimes, which are already covered by existing copyright frameworks.

7. As both a rights-holder and a rights-user, Corus appreciates the complexity of these issues, and depends on a fair, efficient and predictable copyright framework. We believe Canada has developed such a framework in the Copyright Act (“Act”). Broadly speaking, the Act strikes a workable balance between competing interests, and should generally be maintained in its current form. However, it must keep pace with the times, and be improved in a targeted manner. We elaborate further below.

Measures to strengthen enforcement against online infringement

8. The Supreme Court of Canada has observed that the Copyright Act (“Act”) attempts to strike, “a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator,” ^{Footnote 2} and this, “traditional balance between authors and users should be preserved in the digital environment.”^{Footnote 3}
9. The Act also appropriately prohibits copyright infringement and provides rights-holders with remedies to enforce their rights against infringers.^{Footnote 4} These tools have helped uphold the “traditional balance” over the years, but in practice they are proving insufficient to address the scale of copyright infringement Canadian rights-holders now experience online.
10. Online content theft (“piracy”) is a pervasive and growing problem in Canada. International piracy tracking firm, Muso, tracked over 285 million visits to piracy websites in Canada in 2019, and tracked a sharp uptick in piracy since the beginning of the pandemic. ^{Footnote 5} Without robust protections against infringement, we fear we will be unable to sustain a successful content business in Canada over the long-term. To succeed, content-based undertakings must be able to monetize their investments fully, but it is impossible to do so when copyright-protected content is stolen with relative impunity on an industrial scale. In this way, piracy is not only an existential threat to content-based businesses like Corus, but to the “traditional balance” at the heart of Canadian copyright law.
11. As mentioned, the Act and common law provide general remedies against infringers, and the intermediaries who facilitate infringement under certain circumstances. However, these broadly applicable tools are expensive, time- consuming and yield unpredictable results in the unique context of online industrial scale piracy.
12. For example, courts will typically only enjoin online intermediaries provided judgment is sought simultaneously against the infringer, and the infringer is added as a party to the injunction application. However, it is challenging to pursue judgments against online infringers since they generally operate anonymously and outside of Canada. In addition, though Canadian courts are demonstrating increasing willingness to enjoin non-infringing intermediaries,^{Footnote 6}  it remains a discretionary and highly context specific remedy, and there remains considerable uncertainty about its scope. Several years of litigation may be required to develop an efficient and predictable common law framework. Addressing the issue in legislation would be the more expedient path.
13. The Consultation Paper outlines a number of sensible reforms, which would promote a fairer, more efficient, more predictable framework for addressing online infringement, which Corus supports.
14. First, the government should establish an explicit statutory basis and procedure in the Act for injunctions against online intermediaries who facilitate online infringement. This framework should:
    • Provide for a range of flexible orders and remedies. The Act (or related regulations) should provide authority for, but not necessarily be limited to, site-blocking, site de-indexing and site takedown orders.
    • Be accessible and capable of delivering timely relief to rights-holders. To remove any uncertainty, the Act (or related regulations) should specify that injunctions should be available against online intermediaries without first obtaining judgment against an infringer, or adding the infringer as a party.
    • Entrench clear interpretive principles. The Act (or related regulations) should provide clear guidelines to Canadian courts when deciding whether to issue injunctions against online intermediaries, based on recent Canadian and international case law.^{Footnote 7}
15. Second, the government should update the criminal offences provisions of the Act ^{Footnote 8} to ensure they are technologically neutral “in a way that would encompass the operation of streaming services for commercial purposes.”^{Footnote 9} Existing civil remedies have proven insufficient to curb piracy in Canada. Stronger enforcement actions are needed.
16. Third, the Act should establish that where injunctions are granted against online intermediaries, resulting orders are binding on the Canadian Radio- telecommunications and Telecommunications Commission (“CRTC”). To this end, the Act should incorporate a new clause that explicitly overrides section 36 of the Telecommunications Act and eliminates any potential statutory conflict.^{Footnote 10}
17. Fourth, the Act should empower government to take a more active role in copyright protection by establishing a new enforcement office, based on similar offices located in the United Kingdom and United States. The new Canadian office could leverage the collective resources and expertise of different government and law enforcement agencies, and be mandated to develop a national strategy to combat piracy, provide information to individuals with limited resources, track and monitor piracy activity and provide enforcement assistance.

Targeting new remuneration requirements to entities not captured by existing copyright frameworks

18. The Consultation Paper raises the possibility of new collective licensing regimes for rights-holders and online intermediaries. ^{Footnote 11} However, it also acknowledges that a number of licensing regimes overseen by the Copyright Board of Canada are already in place under the Act.^{Footnote 12}
19. Corus cautions the government against introducing new remuneration regimes for activities already covered by existing copyright frameworks. As the Supreme Court of Canada notes:

    The principle of technological neutrality requires that, absent evidence of Parliamentary intent to the contrary, we interpret the Copyright Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user. To do otherwise would effectively impose a gratuitous cost for the use of more efficient, Internet-based technologies.^{Footnote 13}

    In other words, the Court interprets the law in such a way as to prevent ‘double-dipping’ by rights-holders. Such ‘double-dipping’ risks undermining the traditional balance at the heart of the Act. The government should approach legislative reform from the same perspective.

20. Corus and other rights-users make significant copyright payments to rights- holders for the dissemination of content online under existing collective licencing and contractual regimes. Regarding the latter, we regularly obtain multiplatform rights to disseminate content from studios and producers under licensing agreements. Rights-holders are fully compensated for use of their works under those agreements.
21. Therefore, if the government determines that further collective licensing is required for online distribution of creative content, such licencing regimes should be narrowly defined to exclude entities already paying under existing copyright frameworks and/or licencing agreements. Put another way, the government must draft new remuneration frameworks carefully as to prevent any ‘double-dipping’ by rights-holders.
22. Along the same lines, the government should exclude any “streaming platforms” that operate within existing licensing frameworks, and thus already support rights-holders through copyright payments, from the definition of “online intermediaries.” This would be consistent with the spirit of the Consultation Paper, which contemplates extending new remuneration regimes, “to only certain types of hosting intermediaries to ensure it is targeted in a way that would not impose unfair burdens or limit economic growth.”^{Footnote 14}

Conclusion

23. Corus appreciates the opportunity to participate in this timely and crucial consultation. We urge the Government of Canada to take new measures to strengthen enforcement against online infringement through amendments to the Act. However, we also caution the government not to extend the reach of federal law into remuneration regimes, which are already covered by existing copyright frameworks.
24. In large measure, the success of our company, indeed of Canada’s entire creative sector, depends on a fair, efficient and predictable copyright framework. We look forward to working with the Government of Canada to implement such a regime, which incorporates online intermediaries, in the months ahead. To this end, we would welcome the opportunity to participate in future consultation stages.