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On May 31, 2024, the Federal Court of Canada delivered its decision in 1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General). Blacklock's, a subscription-based news service, alleged Parks Canada infringed its copyright by purchasing a subscription to particular Blacklock's news articles and sharing the password to those articles with several Parks Canada employees. Representing Parks Canada, the Attorney General counterclaimed that use of the articles constituted fair dealing, and did not breach the Copyright Act's prohibition against circumvention of technological protection measures (TPMs).

After noting that a TPM "must be a technology, device or component that must be effective in controlling access to the work or restricting the doing of some act," the Court said it was " satisfied that the use made of the articles accessed through the validly obtained password constituted, on the facts in this record, fair dealing according to section 29 of the Act." The Court further observed that "fair dealing has been found by authorities binding on this Court to be an integral part of a scheme, not a mere exception to the scheme or a defence to an infringement. It must be accounted for in considering the TPM provisions."

On the issue of whether use of a password can constitute circumvention of a TPM, the Court said, "The ability of copyright owners to protect against the distribution of their works, which is made so much more broad scale in the digital world, is now a reality. But that cannot be if the cost is to negative fair dealing." The Court thus ruled that, in order to maintain the Act's careful balance between the private and public interests in the scheme of copyright, "the licit acquisition and use of a password, if it is otherwise a technological protection measure, does not constitute the circumvention of the technological protection measures of the Copyright Act."

On February 22, 2024 the Federal Court of Canada delivered its decision in a 2018 suit launched by 10 provincial and territorial K-12 education ministries and all Ontario school boards (the Consortium), who sought a refund from Access Copyright (AC) for royalty over-payments. The Consortium's over-payments, totalling more than $25 million, were made in the period 2010 to 2012 during which Consortium members were licensees under a continuation of the terms of the 2005-2009 tariff while the Copyright Board reviewed AC's tariff proposals for the 2010 to 2015 period.

AC did not dispute the over-payment amount. However, AC counterclaimed that a refund was not required because, among other things, it claimed the Consortium continued to be licensees from 2013 to 2015 but paid no licensing fees.

The central questions before the Court included whether the Consortium members were licensees after 2012, and if not, whether AC is entitled to keep the Consortium's over-payment of licensing fees. On both of these issues the Court ruled in favour of the Consortium: that its members were not licensees during the disputed time frame and AC may not retain the over-payment amount.

On October 12, 2023, the Government of Canada launched at consultation period in which it invites public comment on whether copyright law amendments are needed to facilitate the development of generative AI. Other recent governmental consultations on aspects of copyright law accepted written briefs from interested parties (e.g., the 2021 Consultation on a Modern Copyright Framework for Artificial Intelligence and the Internet of Things). This time, however, participation in the Consultation on Copyright in the Age of Generative Artificial Intelligence is only available by filling out an online form. The deadline for submitting input is December 4, 2023.

*Update: On December 1, 2023, the consultation period was extended to January 15, 2024.

On November 17, 2022 an Order in Council was signed that sets December 30, 2022 as the date on which Division 16 of the Budget Implementation Act, 2022, No. 1 comes into force. Division 16 comprises amendments to the Copyright Act, including extension of the general term of copyright from 50 to 70 years after the life of an author.

All original works by authors and creators who died in 1971 or earlier are in the public domain in Canada. Due to the December 30, 2022 amendment to the general term of copyright, however, no additional works will enter the public domain in Canada until January 1, 2043.

On November 18, 2022 Access Copyright filed its latest proposed tariff for post-secondary copying by institutions outside of Quebec for the period January 1, 2024 to December 31, 2026. This proposal queues up behind two other post-secondary tariffs proposed by this collective for 2018-2020 and 2021-2023, which also await certification by the Copyright Board.

Many, if not most, Canadian universities continue to follow institutional fair dealing guidelines that are modeled on the Fair dealing policy for universities developed by Universities Canada in 2012. Because Canadian copyright law continues to evolve and some important changes have occurred since 2012, whether those guidelines should be updated, and if so, how, is an open question. One institution recently answered this question in October 2022 by releasing updated guidelines and FAQ, which, in turn, has raised concerns about some unsettling aspects of those revisions.

On June 18, 2022 a proposed rules of practice and procedure for the Copyright Board of Canada were published in the Canada Gazette. As well, the Copyright Board released an overview of the proposed rules on its website. Interested parties and the general public were invited to submit comments on the proposal by July 18, 2022.

The Copyright Board website now states that "The final version of the Rules, which may include changes based on the feedback received during the consultation period, will be published in the Canada Gazette in the coming months."

On July 15, 2022 the Supreme Court of Canada released another decision, SOCAN v. ESA, that once again confirmed the fundamental purpose of copyright: to balance public and private interests of users, creators, and owners of copyright in creative works. The question addressed in this case is whether the Copyright Act requires users pay two royalties to access works online, even though accessing the same work offline requires paying only one royalty.

This decision upholds the Federal Court of Appeal (FCA) ruling that a proper interpretation of s. 2.4(1.1) of the Act shows that " Parliament did not intend to subject downloads and streams to two royalties. The July 15, 2022 decision states the following:

The Copyright Act does not exist solely for the benefit of authors.Its overarching purpose is to balance authors’ and users’ rights by securing just rewards for authors while facilitating public access to works. When this balance is achieved, society is enriched. Authors are encouraged to produce more works, and users gain access to works which they can use to inspire their own original artistic and intellectual creations.

This latest ruling from the Supreme Court continues to emphasize the need to balance the public interest in accessing copyrighted works with the private interests of creators and copyright owners in exercising their economic and moral rights in protected works.

On July 30, 2021 the Supreme Court released its judgement in York University v. Access Copyright a mere two months after the May 21, 2021 hearing. The Court dismissed the appeal from Access Copyright (AC) regarding "mandatory" tariffs, thereby upholding the Federal Court of Appeal ruling that "an approved tariff is not binding against a user who does not accept a licence" (para 76).

The Court dismissed York's fair dealing appeal since the Court's finding that the interim tariff was not enforceable against York meant that "there is no live dispute between the parties" (para 83). However, the Court said it did not endorse the fair dealing analyses of the lower courts and chose to provide comments "to correct some aspects of the reasoning from the courts under review which, respectfully, depart from this Court’s jurisprudence" (para 88).

On July 16 the federal government launched its third consultation of 2021 on Canadian copyright law. This time the focus was artificial intelligence and the Internet of Things. The specific topics addressed include text and data mining, authorship and ownership of works created by AI, infringement and liability regarding AI, and repair and interoperability issues related to technological protection measures.