Modifications to Bill 64 as Adoption in 2021 Remains Likely

The Québec bill proposing substantial amendments to an Act respecting the protection of personal information in the private sector (Bill 64) keeps making progress through the legislative process, as  the parliamentary committee recently published its report, including by proposing further changes to that piece of legislation.

The commission proposed several modifications to the initial version of the bill, including the following:

  1. Creating certain new rights for individuals as to their personal information;
  2. Requiring businesses to check, beforehand, that information exported outside Québec would be protected by laws (in the other jurisdiction at issue) that are “adequate”;
  3. Adding an obligation to inform individuals of the actual identity of third-party businesses and partners to which the organization may be disclosing information (as opposed to merely disclosing the types of third parties);
  4. Allowing business to delegate the roles of their Chief Privacy Officer (as required under the bill), to someone outside the company, if they so choose (for example, to allow outsourcing of that function if no one in the company has the requisite expertise);
  5. Forcing businesses that use information that has been depersonalized, to take reasonable precaution against eventual use of such information to “reidentify” the individuals at issue;
  6. Allowing use of personal information, even without consent, for purposes of delivering products or providing services to the individuals at issue;
  7. Allowing use of personal information, even without consent, in the context of purchase-type corporate transactions, but also other commercial operations such as mergers, financings, etc.;
  8. Expressly adding to the Québec statute the possibility of settling claims against businesses that violated the statute, by having them enter into undertakings with authorities, as is allowed under the Federal statute;
  9. Modifying the amount of certain penalties provided by Bill 64, being understood however that the maximum penalty of $25M (or 4% of annual turnover) remains untouched;
  10. Limiting what business must provide to individuals who ask to see “their” own data, by excluding therefrom data that was indirectly produced or induced from the initial data actually provided by each individual.

It is generally agreed Bill 64 is likely to complete the legislative process in 2021, as its formal adoption seems more than likely to follow before the end of the year, with fairly minimal modifications being made to it between now and then.

Canada Decriminalizes Sports Betting on Single Events

The Canadian government recently announced that Bill C-218 will come into effect on August 27, 2021. The bill at issue seeks to do away with the prohibition on betting on single sports events, in Canada.

By amending Section 207(4) of the Criminal Code, this change will allow Canadians to bet not only on a series of sports events or games, but also on a single one if they wish to do so. Apparently, this is something people want, as betting on several events is seen as more difficult and uncertain to allow you to win your wager.

Apparently, the current figure of sports betting in Canada is around 4 billion dollars par year, while illegal bets on sportive events may be around 10 billion dollars. With figures like this, it’s not too surprising various governments may want to cash-in on this.

Mind you, this change will not alter the fact that provinces are generally the ones regulating gambling, including betting on sportive events. Each province now has to choose whether it will allow this practice of betting on singe games or events, and how to go about regulating it. Individual gamblers will then be required to comply with whatever regulations scheme has been implemented by their province.

I’ll admit to now yet knowing what the province of Québec has in mind as to this, but I’ll bet (no pun intended) the huge market related to sports betting is likely to sway Loto-Québec and the Québec government in wanting a piece of the pie. I’d be surprised if the province doesn’t decide to take advantage of this new potential form of revenue.

Let’s get ready to rumble!

The Federal Court Imports Copyright Infringement by Inducement into Canadian Law

The Federal Court recently provided us with an interesting copyright decision, in Bell Canada v. L3D Distributing Inc. (2021 FC 832), a case that dealt with devices called set-top boxes (“STB”) used to stream content on TVs. In that case, a group of Canadian companies was sued by content owners and licensees, to stop these defendants from continuing to market and sell their STB devices in Canada, and ideally also obtain some compensation based on infringement of copyrights.

To make a long story short, in 2016 the group of plaintiffs that included Bell and Videotron sued some Canadian businesses marketing STBs in Canada, based on fact that such devices were largely being used by purchasers to infringe copyrights as to pirated TV shows and movies. The plaintiffs basically argued that availability of STBs made it too easy for Canadian consumers, allowing them to find, download and watch pirated content on their TVs. Indeed, thanks to these devices and instructions provided by the defendants at issue, Canadians could too easily get round the usual predictions against availability of pirated content -hence the proceedings filed before the Federal court.

We should mention that the defendants at issue not only marketed STBs in Canada but did so by promotion and information that made it clear that the typical function and use of these devices was essentially to obtain access to pirated content. In short, there was nothing subtle about the fact that activities of the defendants relied heavily on benefiting from allowing consumers to infringe copyrights on pirated content placed online by third parties. Looking at the promotional and other materials produced by defendants, it was clear that the main use of the devices at issue was to secure access to pirated content, particularly once purchasers installed a third-party add-on recommended by the defendants to enable pirating.

The federal court started by concluding that the defendants had in fact infringed copyrights over thousands of series and movies, by essentially making them available by telecommunications to Canadians. For the court, lack of actual copying, uploading or downloading may be disregarded in a blatant case such as this, as the defendants basically made content available through their devices and activities. Even though the defendant did not actually do any of the specific acts reserved to copyright owners by the Canadian act, the court held that the defendants’ activities related to STBs basically amounted to making pirated content available, a conclusion which many now question, including it seems to go beyond the actual provisions of the Copyright Act.

Interestingly, the Federal court here also went as far as holding that these defendants infringed copyrights not only directly (by making pirated content available, as described above), but also by merely encouraging, or rather inducing, Canadian users who purchased STBs to seek, download and watch pirated content placed online by third-parties. This is new law for Canada, as the Canadian Copyright Act does not contain any provision dealing expressly with inducement as a basis for finding infringement, contrary to the Patent Act, for example. For the court, the fact that Canadian common law generally provides for inducement as a basis for liability justifies importing that legal concept into copyright law, notwithstanding the absence of such a concept in our piece of copyright legislation.

Based on these findings of infringement, the court granted injunctive relief (of course) and awarded the plaintiffs 31 million dollars in statutory damages, along with some punitive damages, for good measure. Ouch.

I should mention that, not too surprisingly, the decision at issue was the result of ex parte proceedings and was a default judgment. One may express doubts as to whether the result would have been the same had the defendants actually participated and made submissions.

At any rate, I guess we’ll just have to see whether Canadian jurisprudence does really continue to import here the concept of infringement by inducement in copyright matters.