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Copyright Act Review: Netflix, Free Streaming and the “Monkey Selfie”

This article originally appeared on October 25, 2017 on the Lawyer’s Daily website published by LexisNexis Canada Inc.

It has been a relatively quiet year for copyright law in Canada, but it is ending with a relative bang with the statutory five-year review of the Copyright Act and the Creative Canada initiative. This article will take a brief look at both developments primarily through the lens of a lawyer who represents creators.

First, do not look for any fireworks with the mandatory Copyright Act review. The aftershocks from the 2012 overhaul of the act are still being felt and courts have not fully addressed many of its new provisions.

One area the review will likely address is the copyright board, which sets tariffs payable to 35 different copyright collectives representing rights owners. The Senate Committee on Banking, Trade and Commerce did not mince words when it called for major overhauls to the “dysfunctional” board. These changes are expected to focus on administrative improvements to expedite the sluggish tariff approval process.

Another contentious issue is the “notice-and-notice” process for rights owners to provide ISPs with infringement notices who in turn are required to provide the notices to their customers — as opposed to the “notice and takedown” process in the United States. Criticized initially by many rights owners for being largely toothless, it is now being attacked by some of its former proponents because certain antipiracy companies are attaching controversial settlement demands to the notices. Look for changes to regulate the content of these notices.

Although groups representing creators continue to push to remove the purpose of “education” for fair dealing and to extend the term of copyright from life plus 50 years to 70 years, it is unlikely that the review will recommend major changes to these provisions.

Some issues that were front and centre in 2012 for creators have diminished in importance. For example, new provisions addressing rampant infringement through P2P file sharing are less critical with the rise of legitimate streaming services. But in the foreseeable future, creators may need to rely on the act to combat illegitimate free streaming services and there could be calls to create new enforcement tools.

Another area that could move to the forefront of the copyright docket is content created by non-humans. While it was the U.S. “monkey selfie” case that grabbed headlines, we may need to grapple with rules for content created through artificial intelligence and other machine-based means, including whether such content can be copyrighted and if so, who owns it and how long does it last.

Turning to the government’s Creative Canada announcement, the “Netflix deal” has cast a large shadow over the details of this multipronged initiative. Netflix has agreed to spend a minimum of $500 million on original Canadian productions over five years and to build a permanent production facility in Canada. By electing to work directly with Netflix, the government rejected calls for a “Netflix tax” on streaming services and it sounds like more deals with digital giants such as Apple, Google and Amazon are in the pipeline.

Critics of the Netflix deal have pointed to the lack of clarity in defining “original productions in Canada” — are they truly Canadian or overseas productions that happen to be filmed here? Stakeholders have also raised concerns with the lack of French language content requirements and favouring foreign multinationals over nascent homegrown services. Nevertheless, many view the Netflix deal as a positive development for creators that could result in more work, opportunities and funds for Canadian creators.

Other key points in this broad initiative include increased government funding for the Canadian Media Fund, new funding to help Canadian creators in foreign markets and investments in creative hubs to create shared spaces for creators, entrepreneurs and startups.

In speaking with several of my creator clients about Heritage Minister Mélanie Joly’s announcement, one oft-raised concern is the disconnect between the reality for creators and the government’s broad ambitions to encourage creative industries in the digital age. Many creators look at the growing gap between the ever-increasing volume of creative content enjoyed by the public and their own stagnant or shrinking incomes with concern as they are increasingly getting priced out of the “creative hubs” where most of our creators live and work.

Here in Toronto, skyrocketing rents and property taxes have forced many creators to move or contemplate leaving the city that they helped transform into a dynamic world-class metropolis. While creators generally appreciate the government’s interest in fostering our creative industries, many wonder if these initiatives will help them pay their bills and sustain their livelihoods so that they can continue to contribute to our creative economy.

Dan Pollack is a Toronto-based lawyer who primarily focuses on intellectual property, new media and entertainment law through his firm Dan Pollack Law.

© 2017 Dan Pollack Law

About the Author
Dan Pollack is a lawyer based in Toronto, Canada who primarily focuses on copyright and intellectual property law, helping creators such as photographers, musicians and writers protect and gain value from their work. Dan also provides legal advice relating to entertainment and media law, licensing, contracts, commercial litigation, privacy, marketing, social media and general corporate law. Dan is admitted to practice in Ontario and California.

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