Minority Report: How Canada’s Electoral System Disrupts Copyright Reform

Canadian elections have a tendency to disrupt copyright reform initiatives and the 2019 contest which resulted in a minority Liberal government under Prime Minister Justin Trudeau is no exception.

The trend started in 2005, when the Liberal Government of Prime Minister Paul Martin introduced Bill C-60, An Act to Amend the Copyright Act, which was Canada’s first attempt at adopting the comprehensive amendments required to ratify the two WIPO internet treaties that had been negotiated in 1996 and signed by Canada in 1997.

The minority Liberal government was defeated by a vote of no confidence in November 2005, killing Bill C-60.

After the general election in January 2006, the defeated minority Liberal government was replaced by a minority Conservative government under Prime Minister Stephen Harper. The Conservatives tabled Bill C-61, An Act to Amend the Copyright Act, in June 2008. The bill was substantially similar to the Liberals’ copyright reform legislation.

Like the Liberal bill, the Conservative’s Bill C-61 also died on the order paper as the result of an election call on September 7, 2008,

The October 14, 2008 general election resulted in a second consecutive Conservative minority parliament. Prime Minister Stephen Harper avoided an early vote of no confidence by asking the Governor General to prorogue Parliament on December 4, 2008.

In June 2010, the Harper Government introduced Bill C-32, An Act to Amend the Copyright Act, the Conservative’s second attempt to pass comprehensive copyright reform legislation. Bill C-32 repeated many of the same substantive provisions as earlier attempts but also included some new twists, including the “user-generated content” exception.

Just like the previous attempts, Bill C-32 died on the Order Paper when Parliament was dissolved in March 2011. Following the election in May 2011, the Conservatives formed a majority government and quickly re-introduced its copyright reform bill, now called Bill C-11, Copyright Modernization Act, on September 29, 2011. It was finally passed and given Royal Assent in June 2012 and came into effect in November 2012.

It only took seven years, four bills, and three elections to amend Canada’s Copyright Act and ratify the two WIPO treaties. The Copyright Modernization Act included a provision (section 92) requiring Parliament to review the Act every five years. The review was initiated in December 2017 by an Order of Reference to the House of Commons Standing Committee on Industry, Science and Technology (INDU).

The INDU Committee started hearing witnesses in April 2017 and during the next 21 months heard from 209 witnesses and received 192 written submissions. In April 2018, the INDU Committee asked the House of Commons Standing Committee on Canadian Heritage to undertake a study on Remuneration Models for Artists and Creative Industries in the Context of Copyright. The Heritage Committee heard from 115 witnesses and received 75 written submissions.

The Heritage Committee Report was submitted on contained 22 recommendations on issues such as an artist’s resale right, fair dealing, and authorship of audiovisual works. It was adopted by the Committee on May 2, 2019 and presented to the House of May 15.

The INDU Committee Report was adopted by the Committee on May and presented to the House on May. It contains 36 recommendations. Interestingly, even though the INDU Committee had asked the Heritage Committee to study remuneration as part of the review of the Copyright Act, the Heritage Committee report was issued too late to be considered by the INDU Committee when it drafted its own report and recommendations.

While the INDU Committee requested a response to its Report from the Government, Parliament was dissolved for the general election and the obligation to respond to the Report evaporated. Given that we are now in a minority government situation, it is highly unlikely that the Liberals will have any appetite to undertake any comprehensive copyright reform. Copyright reform tends to be controversial and polarizing and not a winning initiative for government, especially a vulnerable minority government.

This means that all of the effort of the two Committees hearing from 324 witnesses, receiving 267 submissions and making 58 recommendations may just end up on a dusty shelf alongside the other copyright reform initiatives that were cut short by an election.

We won’t have to wait long, however. The next statutory five-year review is due to commence in 2022.   

Learn more about our copyright practice.

About Gerald (Jay) Kerr-Wilson

Jay Kerr-Wilson is the co-leader of the Technology, Media and Telecommunications group and practices primarily in the areas of communications and public law, with a particular emphasis on copyright.