Originally published in Blakes Bulletin on Intellectual
Property, June 2010
After two earlier bills and years of rumours, the federal
government tabled Bill C-32: the Copyright Modernization
Act (CMA) in Parliament on June 2, 2010. The CMA represents a
comprehensive set of long-awaited amendments to the Copyright
Act (Act). It will, if passed, not only significantly
modernize the Act (which has not been significantly amended since
1997) but also align domestic Canadian law with two of Canada's
longstanding international treaty commitments: The World
Intellectual Property Organization (WIPO) Copyright Treaty and
the WIPO Performances and Phonograms Treaty.
The proposed amendments in the CMA are numerous and complex.
Some of the highlights include:
Making Available Right: The CMA would confirm
that copyright holders have the exclusive right to authorize or
prohibit their works being made available for dissemination on the
Protection for Technological Protection Measures
(TPMs): The CMA would protect TPMs (colloquially referred
to as "digital locks") from cracking by treating
instances of TPM circumvention as instances of copyright
Penalties for TPM Enablers: Persons who market
or distribute TPM-circumvention tools (e.g., digital lock-cracking
software) or set up services to enable infringement (e.g., torrent
tracker sites) would be subject to liabilities under the CMA.
Moral Rights for Performers: The CMA would
grant performers the right to protect the integrity of their
recorded works and to have them attributed (or not attributed) to
them as they choose.
Ownership of Photographs: The CMA would
provide that photographers own copyright in their commissioned
works. Currently, the first owner of copyright in a photograph is
generally the person who commissions the photograph unless the
parties contract to the contrary.
LIMITATIONS ON RIGHTS
Internet Service Providers (ISPs): The CMA
would confirm that ISPs do not infringe copyright when they act
strictly as communications intermediaries for the infringements of
their customers. The CMA would also formalize the often used
"notice and notice" regime of contact among copyright
holders, ISPs and their customers.
Hosting: The CMA would provide that it is not
an infringement to provide digital memory which another person
might use to store an infringing copy (e.g., online network storage
space, network-side personal video recorders, etc.).
Search Engines: The CMA would allow search
engines to make copies of protected materials if those copies are
necessary for the technical operation of the search engine.
Software: The CMA would permit the copying of
software for back-up, security and encryption research, as well as
Temporary Reproduction for Technological
Processes: The CMA would permit the making of copies of
protected works temporarily as an essential part of a technological
Educational Institutions, Libraries, Museums and
Archives: The CMA would permit a wide range of activities
by educational institutions, museums, libraries and archives. The
CMA would permit these institutions, subject to limitations, to
make and distribute electronic copies of course materials, books
and other protected works.
Fair Dealing: The CMA would expand the scope
of "fair dealing" in the Act to include education, parody
Remixing: The CMA would permit non-commercial
"remixes" of copyrighted content, providing, among other
things, that the new work has no substantial adverse impact on the
Use Shifting: The CMA would allow "format
shifting" (e.g., moving music from a CD to an MP3 player) and
"time shifting" (e.g., recording television for future
viewing), two activities which, though widely practiced by
Canadians, have never been permitted by the Act.
Statutory Damages: The CMA would create
separate statutory damages regimes for "commercial" and
"noncommercial" copyright infringement. Statutory damages
for non-commercial infringement would be capped at C$5,000 per
legal proceeding and subject to a "first to sue and
elect" limitation. Infringement undertaken for commercial
purposes would remain subject to statutory damages of up to
C$20,000 per work infringed.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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