Streaming, Copyright and Creators: a Canadian Perspective

This paper will provide an introduction to streaming and copyright in Canada. It will proceed in five parts. Following this introduction, Part 2 of this paper will define streaming, discuss some of the benefits that flow from the widespread use of streaming services, and outline the extent to which streaming technologies are in use in Canada today. In so doing, this paper will distinguish between three types of streaming services: streaming services that secure authorization from rights-holders before making content available; streaming services that rely on technological measures or liability exemptions in order to host content in a non-infringing manner; and streaming services that host content in ways that prima facie infringe copyright. Part 3 of this paper will examine the legal status of streaming under Canada’s Copyright Act. Over the past decade, a number of amendments have been made to the Copyright Act in response to the emergence of streaming services. Similarly, a number of judicial decisions have considered whether and the extent to which streaming infringes copyright in Canada, and if so what remedies might be available to copyright owners. These amendments and decisions will be described in this section, along with a general discussion of copyright in Canada as it relates to streaming services. Part 4 will address the impacts of streaming on Canadian creators. It will begin by discussing the consequences, for creators’ audiences and incomes, of the ongoing shift from a traditional distribution model to a streaming model. Next, it will describe how a number of programs meant to assist Canadian creators – including those that require broadcasters to provide funding to assist Canadian creators and to present a certain percentage of Canadian content – do not extend to online streaming services. As part of this discussion, it will survey a number of recent attempts to reform Canada’s broadcasting framework as it relates to streaming services. Bill C-10, a recent (and heavily criticized) attempt to bring streaming services within the ambit of Canada’s broadcasting regulatory regime, died on the order paper on 15 August 2021, when Governor General Mary Simon dissolved Parliament at the request of Prime Minister Justin Trudeau, triggering an election campaign. On 2 February 2022, an updated version of this bill (now known as Bill C-11, the Online Streaming Act) was introduced by the federal government. This bill received royal assent on April 27, 2023. Building on the above analysis, this paper will conclude in Part 5 by highlighting three points that in the view of the author should be kept in mind in the context of any debate about streaming and copyright in Canada: the importance of ensuring universal access to streaming services; the importance of preserving the balance between copyright owners’ rights and the public interest; and the need to ensure that any discussion about legal reforms relating to streaming foregrounds the question of how best to support creators in light of the ongoing shift to streaming-based media.

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