European Commission Calls Out Canada’s Lacking Copyright Policy

The Canadian Government is no stranger to having its copyright policies critiqued.

The US Trade Representative, for example, has repeatedly placed its northern neighbor on a “watch list” because it fails to properly deter piracy.

While Canada has made several changes to its copyright regime in recent years, many rightsholders are not satisfied. Through political pressure from foreign governments, they hope to urge the country to address what they see as problematic issues.

This doesn’t only take place through the US Government – the European Commission is chiming in as well. Repeating many of the points that were previously highlighted by the USTR, the Commission summarized its main complaints in a report on the protection and enforcement of intellectual property rights in
third countries

“The Canadian IPR system still features certain shortcomings. Despite recent positive developments, a number of issues remain to be addressed, in particular in copyright and related rights as well as in enforcement,” the European Commission writes.

One of the highlighted problems is Canada’s fair dealing rules, which add educational use to the list of copyright infringement exceptions. According to the EU Commission, the language used in the law is too broad, damaging the rights of educational publishers.

“Broad exceptions in copyright law are applied in a way that appears to be detrimental to right holders. EU stakeholders are particularly concerned about the fair dealing exception for educational purposes and the exception for non-commercial user-generated content,” the Commission writes.

The same issue was previously pointed out by the US Government. That’s also true for the second problem, Canada’s lack of a takedown procedure to ensure that infringing content is removed by online service providers.

Canada previously implemented a “notice-and-notice” scheme. This only requires services to alert infringing parties, but it should ideally be complemented with a takedown requirement, the Commission notes.

“Stakeholders indicate that the ‘notice and notice’ regime for online copyright infringements, which came into effect in January 2015, still needs to be supplemented by a ‘notice and take down’ requirement, as well as by other measures to encourage all players to address online infringements in an effective way,” the Commission writes.

“There is currently no requirement for the internet service provider (ISP) or the user to take down infringing material and the only way to enforce a takedown is via the courts,” it adds.

The repeated use of the term “stakeholder” shows that the Commission heavily relies on input from copyright holders. While this is common, it may not be the most balanced approach.

Finally, the Commission also points out that many pirate websites are still hosted in Canada. This is a concern, it writes, as rightsholders are not able to request an injunction to have websites blocked by ISPs.

That last complaint is outdated, as Canada’s Federal Court recently issued the country’s first website blocking order. This is likely because copyright holders already submitted their complaints before that happened.

All in all the complaints are nothing new for Canada’s Government so whether they will make an impact has yet to be seen. The country previously wasn’t very impressed by “one-sided” foreign complaints on its copyright policies.

Canada is working on an update of its copyright law. Earlier this year, the Government’s Standing Committee on Industry, Science and Technology clearly rejected a non-judicial site-blocking regime, while it advised keeping the current safe harbor policy intact.

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A copy of the European Commission’s Report on the protection and enforcement of intellectual property rights in third countries is available here (pdf).

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