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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 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 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.

On April 14, 2021, the federal government launched a second consultation on Canada's copyright law, this time addressing the issue of how best to protect online intermediaries against liability for copyright infringement, promote effective remuneration models for rights holders, safeguard individual rights and freedoms within an open Internet, and effectively enforce copyright.

May 21, 2021 has been set as the date on which the Supreme Court will hear arguments in the York University v. Access Copyright case. Docket information on this SCC case is available here.

On February 11, 2021 the federal government announced a one month consultation on how to implement extension of the term of copyright in Canada. A 20-year extension to the duration of copyright in Canada is necessitated by the terms of the trilateral trade agreement known as CUSMA, signed in November 2018. Background information and a consultation paper are available from Innovation, Science and Economic Development Canada. The consultation paper outlines five "options" representing "a range of possible approaches to facilitating access to orphan works and out-of-commerce works." The deadline for submitting comments to the consultation process is March 12, 2021.

After filing their June applications to appeal the April 2020 FCA decision to the Supreme Court of Canada, both York University and Access Copyright responded to each other's applications and replied to those responses in September. We now await the Supreme Court's decision on whether or not it will grant leave to one or both parties to appeal.

On April 22, 2020 the Federal Court of Appeal (FCA) delivered its long-awaited decision in York University v. Access Copyright, for which the FCA hearing was held over a year ago on March 5 and 6, 2019.  On the matter of whether an approved tariff is mandatory, the FCA concluded that "a final tariff would not be enforceable against York because tariffs do not bind non-licensees" (para 204).  Regarding the fairness of York's fair dealing guidelines, the FCA said "it was incumbent on [York] to justify [York's Fair Dealing] Guidelines themselves so as allow the Court to declare that reproductions that fall within the Guidelines are fair dealing. It has not done so" (para 310).

On December 6, 2019 the Copyright Board released several documents pertaining to Access Copyright (AC) tariffs for post-secondary institutions:

• approved tariffs for 2011-2014 and 2015-2017
• the Board's reasons for its tariff decisions
• a fact sheet for the approved tariffs.

These documents became available just before the December 9, 2019 deadline to submit objections to AC's proposed 2021-2023 post-secondary tariff filed in November 2019. The proposed AC post-secondary tariff for 2018-2020 has not yet been approved by the Copyright Board.

The Federal Court hearing in the lawsuit launched by Access Copyright against York University has now concluded. The hearing for this complex case took place over May 16-19, 24-27, 30-31 and June 1-3, 6-9, and 22-24, 2016. See this Excess Copyright blog post for a summary of the final trial arguments.