In a decision that can only be regarded as a major blow to Canadian creators and distributors of copyright materials, the CRTC today, in Telecom Decision CRTC 2018-384, dismissed FairPlay Canada’s application to establish a site blocking regime to combat the scourge of online piracy.
The CRTC dismissed the application on jurisdictional grounds, but not before making the express finding that the record before it “demonstrates that there is evidence that copyright piracy results in harm to the Canadian broadcasting system and to the economy in general”.
An irony in the decision is that it comes just after the release of the new United States Mexico Canada Agreement (USMCA) in which the parties committed in the IP Chapter to ensuring that enforcement procedures are available under their laws so as to permit effective action against any act of infringement of intellectual property rights including expeditious remedies to prevent infringements. (See Art. 20.J.1) As I have argued, site blocking is an internationally accepted and effective process for preventing copyright piracy.
In its decision, the CRTC did, however, send a clear message to Parliament that it needs to act to create the jurisdiction for the CRTC to establish a site blocking regime or to amend the Copyright Act to provide an alternative mechanism to facilitate site blocking. It did so by its findings about the damage caused by piracy and its reference to the two legislative reviews that could make recommendations for changes in the law.
The Commission acknowledges that there is evidence that copyright piracy results in harm to the Canadian broadcasting system and to the economy in general. However, there are other avenues to examine the means of minimizing or addressing the impact of copyright piracy, including the ongoing parliamentary review of the Copyright Act and the expert panel review of the Telecommunications Act and the Broadcasting Act.