Fasken Perspectives - May 14 2026 - Copyright.mp4

Kiera Boyd: [00:00:04] Hello and welcome to another episode of perspectives Fasken podcast series. This is the first episode of a new three part series presented by Fasken Communications Practice Group. And today we're going to be exploring how Canada's upcoming trade discussions with the United States and Mexico might impact Canada's broadcasting, telecommunications, and media sectors. So I'm Kira Boyd, a lawyer in Fasken Communications practice group. And joining me today is Jake Wilson, who is the head of Fasken copyright practice. Um, and today we'll be discussing copyright related trade issues between Canada and the US and in particular those that impact the broadcasting and internet sectors. Um, so maybe to get started, we could talk about one of the elephants in the room in terms of trade, which is the upcoming, uh, Kuzma review. Um, so Jay, maybe you could talk to us a little bit about what Kuzma is what the 2026 Kuzma review is and maybe why it's all happening.

Jay Kerr-Wilson: [00:01:11] Sure. Thanks Kira. So in 2018 during the first Trump administration Canada the US and Mexico renegotiated the existing North American Free Trade Agreement or NAFTA, which had been around since 1994. The new agreement that was a result of the 2018 renegotiation is called in Canada, the Canada US Mexico Agreement, or Kuzma. It was concluded in 2018 and came into force in July. On July 1st, 2020. So this is a very broad based comprehensive trilateral trade agreement. Um, it has chapters that cover things like um, government procurement investment, cross-border trade and services, financial services, Telecommunications, and one of those chapters is devoted to intellectual property. There is a mandatory joint review every six years. So now that we're at July 1st, 2026, the first six year review period is upon us. And at this point, the three countries have to decide whether to extend the agreement for another term. Uh, and if they don't agree, then the agreement goes into a series of annual reviews until 2036, when it might expire completely.

Kiera Boyd: [00:02:31] Okay. So maybe before we get into kind of the next period and renegotiations and what those might look like, um, maybe you could tell us a bit about what Kuzma actually currently says about, uh, copyright specifically.

Jay Kerr-Wilson: [00:02:45] Sure. So the copyright provisions are included in chapter 20, which is the intellectual property right. Chapter. And the objective is to align all three countries at international standards that have been established by the major international intellectual property treaties, and these include the Berne Convention, the Copyright Treaty, the YPO Performances and Phonograms treaty, the Madrid Protocol, Paris Convention, and there's others. So it establishes minimum standards for protecting and enforcing intellectual property rights across North America. That builds on existing frameworks that exist in the World Trade Organisation Trade-related Aspects of Intellectual Property Rights Agreement or Trips and the World Intellectual Property Organisation, or YPO. Agreements. It's based on the principle of national treatment, so you have to treat nationals of the other countries as favourably as you treat your own citizens when it comes to protection and enforcement of intellectual property rights. In the 2018 negotiations, Canada had agreed to extend its term of copyright to the life of the author, plus 70 years, which has become the new international norm from the pre-existing life of the author, plus 50 years. So that's a commitment that we had made in the last negotiation. And there's rules for online copyright infringement provisions that deal with internet service provider liability and other issues. And it's not just copyright that's dealt with in this chapter. It also deals with trademark protection, geographical indications, industrial design patents, and trade secrets. So there's harmonising all of these different intellectual property regimes under, uh, a North American standard.

Kiera Boyd: [00:04:38] Okay. So I know there's also, um, kind of a lot of, of history stretching back way before my time at least. Um, uh, when it comes to kind of, uh, relations and negotiations between the US and Canada. So how has copyright been affected by those relations and negotiations, including in the Kuzma negotiation in the past.

Jay Kerr-Wilson: [00:05:03] And you may find this hard to believe here, but it even goes back before my time. Um, so the historical development of sort of the copyright relationship between Ken and the US really is a story about the broadcast industry and, and the regulation of broadcast singles signals in Canada has been at the intersection of broad domestic broadcast policy, but also international and domestic copyright law and trade relations with the US. And the reason is, is that, um, US television stations are located along in US major cities along the Canadian US border in places like, uh, Detroit, Michigan, or Buffalo, New York or Vermont or Washington state. And obviously television signals that are broadcast free over the air don't respect national boundaries. So Canadians have always been able who live close enough to the border, have always been able to receive US television stations affair. And in fact, on the day that the very first Canadian television station began broadcasting in 1952, there were already more than 140,000 television sets in Canadian households. And these sets were obviously being used to watch US television broadcasting, which had started earlier in the in the in the 50s and since the very early days of the cable industry in the 1950s, Canadian Canadian cable companies have captured these US network signals, broadcast signals off air and then Retransmitted them or delivered them by cable to their subscribers.

Jay Kerr-Wilson: [00:06:59] And this meant that households who couldn't really receive the US signals off air with the intent on their roof very well. They could subscribe to one of these early cable systems that had very large mast antennas, and they would get very clear reception of these highly popular US broadcast stations that had, you know, the early days of the US television industry. Um, so. As a result, the Canadian policy and the Canadian relationship with the US has, has evolved in partial response to this use of, of US broadcast signals by Canadian households and Canadian cable companies. And it became a sensitive issue in Canada. Us trade relations because the US or the US broadcasters could see that the Canadian cable companies were retransmitting their signals and they weren't paying any fees to do that, and they weren't asking for permission. And also the the movie and television studios that were producing the programming, uh, were, you know, complained that there was this free use of their intellectual property by Canadian cable companies. So, but from a Canadian broadcast policy point of view, obviously, Canada was trying to develop its own domestic broadcast industry, but it wanted to make sure that Canadians still had access to the Canadian to the US content, as well as sort of a driver of cable penetration, uh, among Canadian households.

Jay Kerr-Wilson: [00:08:50] So there's this intersection and tension between the US interests and the Canadian interests that were economic but also cultural. So from those days in the early 50s, with the the first rollout of the Canadian cable industry using these US signals up until 1988, Canadian copyright law did not provide any cable retransmission rate for broadcast signals, so the US broadcasters could not legally prohibit Canadian cable companies from retransmitting their signals to Canadian households. And it also didn't require the payment of any remuneration or money for the retransmission of the signals or the programs carried in the signals. And this partly goes back to a 1954 decision of the Exchequer Exchequer Court of Canada, which found that transmission by cable was not a communication by radio, which is how the Copyright Act framed the communication right, in those days. But it also found that cable subscribers viewing programming in their homes were not instances of performances in public. So from that point in 1954, the the use of programming by cable undertakings was not subject to copyright law. And this increasingly became, uh, an irritant in Canadian US relations. So in 1988, when the US administration under Ronald Reagan and the Canadian administration under Brian Mulroney, were negotiating the first free trade agreement between Canada and the US.

Jay Kerr-Wilson: [00:10:40] Um, this this issue of cross retransmission of cross border stations, uh, was raised. And as part of that negotiation, Canada agreed to amend its Copyright Act, um and to provide remuneration for the retransmission of programs. So it still didn't have to provide, uh, any copyright that would prevent the retransmission of the signals. And it still didn't have to ask consent, but Canada agreed to set up a statutory license regime where, uh, cable companies and satellite companies that retransmit programming on distant or out of market signals then have to pay the copyright owners in those programs royalties that are set by the Copyright Board of Canada. And this was a deliberate policy compromise. So Canada maintained then consumer access to US signals and US programming, but they smoothed over the trade irritant by providing the payment of these Royalties to the copyright owners. A large portion of which went to or and still go to Canadian movie or US movie and television producers. Um, and also as a consequence of Canada enacting these rules in order to meet its obligations under the first Canada-U.S. free Trade agreement, it also allowed them to adhere to the latest version of the Berne Convention, which had a similar retransmission rate.

Kiera Boyd: [00:12:20] Okay. Yeah. So that kind of leads into, I guess, my next question, which is about so Canada established this distinctive domestic framework. How did it then and has it defended or adopted that approach? Um, on the international stage afterwards.

Jay Kerr-Wilson: [00:12:39] Sure. So, so in the early 90s, uh, the World Intellectual Property Organisation. So that's a UN agency that administers and, uh, the, whole range of intellectual property treaties that deal with copyright. But other IP subject matter started negotiating a new broadcast treaty. So, uh, there is the Rome Convention would exist. Now, that applies to broadcast signals, but it has very limited rights because it was negotiated in the very early days of broadcasting. And importantly, it didn't include a cable retransmission, right. So Canada could adhere to Rome and not have to grant a retransmission right to U.S. broadcasters. So in the early 90s, YPO is looking to update its framework of existing treaties. Um, it had concluded the YPO Copyright Treaty, which updated Berne to deal with internet issues. It, uh, adopted the YPO Performances and Phonograms treaty, which dealt with sound recordings or recorded music and performances, and then the next list item on its agenda was updating the protection for broadcast signals. Um, so they started working on a broadcast treaty to late 90s, and they've been working on it for 30 years and they still haven't come to a consensus. But there was a fairly strong consensus among countries like the US, European countries, Japan and other Asian countries that the updated broadcast treaty should have an exclusive retransmission rate so that you could not retransmit foreign television signals without the consent, without negotiating some sort of consent of the broadcasters of those signals. Um, so Canada, throughout the discussion of this proposed treaty, oppose this approach because it would have run counter to Canada's policy choices not to provide protection to broadcast signals against unauthorised cable retransmission.

Jay Kerr-Wilson: [00:14:49] Um, and 20 years ago during the negotiations, Canada had proposed a provision that would let countries opt out of granting an exclusive retransmission rate to broadcasters. If, like Canada did, the countries were paying royalties or remuneration to the owners of the programming. Um, but 20 years ago when Canada floated this idea, it got almost no support. So it was out there but never really got acted on. Um, so until this last year, so in 2025 and YPO has been speaking or negotiating the broadcast treaty non-stop for the last 30 years, but not making much progress. Um, there was then a proposal in 2025 to amend the draft text to include a provision that would grandfather Canada's existing approach. So Canada would not be required to grant a new exclusive retransmission rate for broadcasters as long as it had in place, as it does a system for paying royalties to the copyright owners in the programming carried by those signals. And importantly, for the purposes of our discussion, this proposal was actually tabled by the US. So this suggests that the retransmission rate for broadcasters isn't really a primary US objective in the course of these negotiations. So it looks like now the the retransmission issue, uh, as it relates to Canada isn't going to be a problem as far as the broadcast treaty is concerned.

Kiera Boyd: [00:16:32] Okay, great. Um, maybe we could pivot a little bit because we've talked about these debates happening kind of in the traditional broadcasting space. Um, were there similar tensions emerging in kind of newer spaces like, um, you know, cross-border and policy trade offs happening in the digital world as well over the last little while.

Jay Kerr-Wilson: [00:16:55] Yes, absolutely. And obviously, you know, the introduction of digital technologies broadly, but the internet and, and, um, widespread broadband internet access to households in particular has upended a lot of the existing sort of copyright rules and approaches to copyright. So as I mentioned before, YPO started dealing with the broadcast treaty. They had already updated, um, the Berne Convention and the, the Rome Convention to deal specifically with, with issues that, uh, arose from the adoption of digital technologies and the internet. So this is the, the YPO copyright treaty or WCT and the YPO phonograms and Performances Treaty, uh, or Wppt. And these two treaties are sometimes referred to collectively as the internet treaties, because that really was their purpose. Um, so, you know, these treaties do a lot of things like, um, making it clear that the communication right includes a right of making available. It's called or sort of to cover on demand transmissions where content's being downloaded over the internet. Um, but there was also then discussion arising out of this about how to deal with internet service providers and what liability they should have for copyright infringement online and what enforcement, uh, provisions ISPs should be providing. Um, so in 1997, the US had passed its internet, uh, reform of its copyright law called the Digital Millennium Copyright Act, or DMCA, and they adopted an approach which is generically or popularly known as notice and takedown. So an ISP, if it's hosting infringing material that a third party has, has put on a server and the ISP gets a notice that that material infringes copyright, they have an obligation to disable access to it or take the content down. Um, Canada did not adopt its broad based internet reforms for the Copyright Act until 2012, so much later.

Jay Kerr-Wilson: [00:19:25] Um, and at that point, it adopted an approach called what's called notice and notice. And so under notice and notice, um, if, if a rightsholder, a movie studio or a record company sees that somebody is offering their movie or their album online in a way that's unauthorised and infringing copyright. Um, they can identify the IP address of the person engaged in that conduct. And with the IP address, they can identify the internet service provider so they can send a notice to the internet service provider and say, um, your subscribers engaged in infringing activity, here's the IP address. And the ISP then has to forward that notice of claimed infringement to the subscriber. And they have to keep the information that would allow the copyright owner to identify that subscriber. If the copyright owner decided to pursue lawsuits or legal remedies. Um, the fact that Canada had adopted this notice and notice regime while the US had adopted Notice and takedown, again created some trade irritant or irritation between the two countries. Um, a lot of us stakeholders in the entertainment industry felt that Canada wasn't really providing enough protection with this notice and notice scheme. Um, so during the Kuzma negotiations in 2017, 2018, the US had pushed for a uniform adoption of notice and takedown um by Canada and Mexico. Uh, however, Canada was able to successfully negotiate an exemption to the notice and takedown obligation in Kuzma. So that that in effect grandfathers its notice and notice regime. So the the core text of Kuzma has an obligation to provide notice and takedown or a system that looks like notice and takedown. But there's an appendix that says you don't have to comply with that obligation. If you already had in place the notice and notice system.

Kiera Boyd: [00:21:45] Okay. Yeah. No. Great. That's a lot of good historical context. I think for us, kind of setting the stage for this next chapter where Canada, the US and Mexico are going to have to, um, discuss anything outstanding or anything that's cropped up or persisted since 2020. So what do you think realistically in the copyright sector might be on the table for renegotiation? Um, sometime soon.

Jay Kerr-Wilson: [00:22:12] Well, at this point, it looks like copyright may be one of the less contentious topics amongst all the topics that the three countries are going to have to grapple with, um, during the negotiation. But I always hesitate to predict how, um, the details of Canada-U.S. trade relations may roll out. So that could change. But right now it looks like copyright isn't necessarily going to be a hot button topic. And there's a reason for that. And some of it is that the the historical issues have been resolved or diffused through other developments. And and I mentioned the White Bow Broadcasting Treaty and this new development in the negotiations, where it looks like Canada's historical approach is going to be grandfathered into that treaty if it ever gets to the point where it is adopted and ratified. So, you know, during the 2017 2018 negotiations, a group of US broadcasters were lobbying very strongly for the US to put cable retransmission right for broadcasters on the Kuzma negotiating table. Um, it didn't happen. And now that the US has reversed course on the broadcasting treaty, I would expect that's probably not going to re-emerge as a topic. And I think the status quo is probably going to be acceptable. The second thing is, is that there had been a push. So the US has had a term of copyright of life of the author plus 70 years, uh, for since I think the 1973 copyright reform in the US and Canada had always had life of the author plus 50 years.

Jay Kerr-Wilson: [00:24:07] So this there's this 20 year difference in the term of protection between Canada, the US. So things would fall into the public domain, including US copyright works 20 years earlier in Canada than the US. Um, but as part of the negotiations, Canada agreed to extend its general term of copyright protection to life of the author, plus 70 years to match the term of protection being offered by the United States. That extension is now implemented. So that's no longer a point of difference between the two countries and not a trade irritant. Um, and thirdly, because Kuzma had expressly grandfathered the notice and notice regime. Um and we now have a very recent decision of the US Supreme Court dealing with copyright liability for internet service providers called Cox Communications. Um, and that found that ISPs um, should not be held liable for copyright infringements that are um, that are done by their subscribers. If the ISP did not intend the service to be used for infringement. So that takes a lot of teeth out of the notice and takedown system. If ISPs can't be held liable for the infringements of their subscribers. So again, it seems very unlikely that the difference between notice and take down and notice and notice is going to be an issue that will dominate much attention or generate much attention during the Kuzma renegotiations. Um. However, that doesn't mean it's completely smooth sailing for copyright in these negotiations. Um, two weeks ago the US Trade Representative released its special 301 report. And this is a report that the USTR releases every year where it lists circumstances or situations where IP protection or enforcement practices adopted by US trading partners are causing concern to US interests.

Jay Kerr-Wilson: [00:26:24] And Canada has been on this in this report on the watch list over the years for a number of reasons, including notice and notice, uh including term of copyright. So this year we're we're back on the US watch list. Um, and there's a new observation and it has to do with fair dealing for the purpose of education. And I'm just going to read the passage from the US report that deals with this. And it says, quote, the United States remains deeply concerned by continued stakeholder reports, that broad interpretation of the fair dealing exception for the purpose of education, which was added to the copyright law in 2012, as well as the relevant case law on the subject, has significantly damaged the market for educational authors and publishers. So what that's referring to in 2012, when Canada enacted its Copyright Modernisation Act, education was explicitly added to the list of allowable purposes for the fair dealing exception. So if you're making fair dealing, if you're making use of copyrighted works, including educational material for the purpose of education and the dealing is fair. It won't infringe copyright. And, um, the Supreme Court has consistently held that fair dealing isn't just a narrow exception to copyright, but it should be construed as a user's right, given a very broad and liberal interpretation. So fair dealing for the purpose of education, as long as it's fair, gives a fairly broad swath of potential use of material in the educational setting.

Jay Kerr-Wilson: [00:28:13] Following that up, the reference to the case law is the 2021 decision of the Supreme Court of Canada in York University versus access, and it found a number of things in favour of the educational institutions, universities and schools that, um, the first being that tariffs, which are the licenses that are proposed by the collectives that represent publishers are not mandatory. So a university or an educational institution that's making use of published material, textbooks or whatever does not, is not required to pay royalties to the collective known as access under the tariffs. That doesn't mean that they're not at risk of being found liable for infringement, but they get to make that choice. They're not forced into the situation where they have to pay royalties under the tariff. Um, the second thing that the court found, which strengthened the ability of educational institutions to rely on the fair dealing exception, is that fairness is considered from the perspective of the student, not just the university. So even though it's the university who's asserting the, um, the exception or fair dealing for the purpose of education, when a court's looking at the purpose and whether it's fair, they look at it from the point of view of the student who's being educated, not just the university or the institution. And finally, the third, I think, important point of that case is that copying by teachers for student education falls under the allowable purpose of education.

Jay Kerr-Wilson: [00:29:55] So the student doesn't have to copy it themselves. If if a teacher is doing copying in a classroom setting for student education, that will be part of the allowable purpose. It still has to be fair. And there's an analysis that the court has to go through to determine whether or not any particular use is fair, but certainly that gave a fair amount of strength to the fair dealing exception. Um, another, uh, part of Canada's copyright regime that's been flagged in the U. Scr 301 report is, uh, they say Canada has high levels of online piracy, including not only direct downloads but also streaming and a lack of effective enforcement. Uh, and, you know, I think on this one, Canada is doing the best it can. And certainly Canadian companies like Rogers and Bell have been at the forefront of trying to fight online piracy, particularly streaming services. Um, and we've, there's been a number of court decisions very recently that have strengthened the toolbox for rights owners that want to take action against online streamers. So we'll see whether or not that, um, makes its way on to the, the negotiating table. And finally, uh, with sort of any copyright trade issue, there's going to be border enforcement, uh, issues. The, the importation of, of counterfeit goods. Is there sufficient protection, um, at the border to prevent, uh, counterfeit goods from being imported into the country? So those are some issues that still may crop up during the review.

Kiera Boyd: [00:31:49] Okay. Um, another elephant in the room in terms of potential future trade issues is really anything that touches new technologies. So I'm wondering, where do you think we'll see new trade challenges emerge due to technological evolution?

Jay Kerr-Wilson: [00:32:07] Well, it's hard to imagine a tech issue. Um, that is not having a, you know, that has a greater impact on copyright these days than artificial intelligence and AI. Seems like every time you turn around, you hear about another, uh, lawsuit against AI companies and AI developers. Um, and lots of concern about not only the use of copyright material in the training of generative AI and large language models, but also the potential infringing nature of the output. So if the output is infringing, copyright and all countries are struggling with this, and Canada has undertaken a number of reviews of its AI policy, and it's still doing so now. The US has engaged in a lot of reviews. Um, it could be that if Canada, Canadian courts or the Canadian Parliament set different standards or take a different approach from the US. So for example, if US takes a much stronger IP protection approach to, to artificial intelligence, so that it clamps down on the use of copyright material in the training of LLMs. So, for instance, the US has already found that that AI generated works are not entitled to copyright protection. So if Canada takes a different approach, realising that there's a very integrated North American market, particularly for entertainment and media products that could cause a trade irritation if us, again, copyright owners are seeing that there's a more liberal approach to the use of their works in Canada, uh, to train AI or through the content that's generated by AI. So I don't, I don't know for sure that that AI is going to be part of this current review, but that's, I would say if there's one copyright issue that could become a flashpoint, that would be it.

Kiera Boyd: [00:34:14] Okay. And how, how are Canadians responding to kind of, I guess, all of the potential future trade issues we've discussed? Like what are Canadian stakeholders in particular saying?

Jay Kerr-Wilson: [00:34:27] So in terms of the the broadcast sector, again, it's been pretty quiet because it looks like, Um, the potential, uh, irritants are fairly quiet. So the broadcast distribution undertakings, the cable cable and satellite companies, um, who have advocated for Canada keeping its approach to cable retransmission rights. Obviously, we're very pleased with the direction that the white bow, um, broadcast treaty negotiations have taken. So they'll be keeping an eye just to make sure that nothing crops up in that. Uh, I'm not aware that the Canadian broadcasters have, um, have, you know, taken a stand or had any, uh, issues come to light. So again, I think it's fairly quiet and people are just hoping that the status quo stays on these issues.

Kiera Boyd: [00:35:22] And maybe taking a step back from what people are saying, kind of looking to the future and maybe wrap things up here, what, um, do you think that policy makers, industry and stakeholders can expect next.

Jay Kerr-Wilson: [00:35:36] Well, I think the big thing for me is to, you know, don't try to read the future to precisely expect the unexpected. Technology evolves incredibly fast. You know, the development of digital technologies in the internet swamped the international copyright regime. And it took decades for countries to catch up and to modify the rules. Ai is doing that now, and I think it's going to continue to do that in increasing pace. Um, and, you know, we also have regimes around the world, including the US, whose priorities also seem to shift and change materially. So I think it's really hard to tell necessarily based on today's environment or today's circumstances, what might be the next big disrupter next year. All I'll say is I'm fairly certain there's going to be another big disruption arising from the technology development of technology. And it would be, I think, preferable if Canada, Mexico and the US had a framework where they could deal with these issues collaboratively and come with a comprehensive uniform approach.

Kiera Boyd: [00:36:53] Okay, great. Well thank you. That's all our time for today. Um, again, I'm Kyra Boyd with J. Kerr Wilson. We hope that you've enjoyed this discussion today. Please watch out for episode two in this series, in which Scott Prescott and Ryley Alp will examine trade issues that will impact Canada's broadcasting sector. And in episode three, Leslie Milton, the head of Haskins Communications Practice Group, and Paul Burbank, will look at our trade relationships through the lens of the telecommunications industry. Thanks.