Canada: Proposed Amendments to the Canadian Copyright Act

On June 2, the government of Canada introduced Bill C-32 to amend the Copyright Act.

The amendments would result in substantial changes to the current Act. This paper briefly highlights the proposed changes.1

INCORPORATION INTO CANADIAN LAW OF THE WIPO TREATIES

Bill C-32's summary provides that one of the objectives of the amendments is to incorporate into Canadian domestic law the WIPO Copyright Treaty ("WCT") and the WIPO Performances and Phonograms Treaty ("WPPT") which were signed by Canada in December 1997 but were never ratified.

Distribution Right

Bill C-32 proposes to introduce a right of distribution (s. 4). This would mean that authors of works that can be put into circulation as a tangible object, as well as performers and makers of sound recordings, would enjoy the right to sell or transfer ownership of the tangible object, as long as such transfer has never been previously authorized by them. This right would imply that any further transfer of ownership of a tangible object cannot be controlled by the authors. The right of distribution as expressed in Bill C-32 would incorporate into Canadian law a principle of international exhaustion of rights.

Ownership of Rights in Photographs

Bill C-32 would repeal section 10 and subsection 13(2) of the Act in order to give photographers the same rights as other creators (ss. 6 and 7). Copyright in photographs would vest in the author, and be subject to the general regime of protection applicable to other works. 

Rights of Performers and Makers of Sound Recordings

Bill C-32 provides a new exclusive right to performers and makers of sound recordings to make a sound recording available to the public over the Internet and to sell or transfer the ownership in a physical recording for the first time (ss. 9 and 11).

By virtue of an amendment to s. 2.4 of the Act, the "making available right" would apparently be a species of the right to communicate to the public by telecommunication (s. 3). Moreover, the new right must be exercised through the filing of a tariff with the Copyright Board (ss. 52 and 54).

The term of copyright protection in performers' performances would be 50 years from the end of the calendar year in which the performance occurs.  If the performance is fixed before the end of the term of protection, it would be protected for 50 years after its fixation.  If the sound recording on which it is fixed is published before the end of the term of protection, the performance would then be protected for 50 years after the publication of the sound recording (s. 17).

Sound recordings would be protected for 50 years after their first fixation or, if published, for 50 years after publication (s. 17).

A sound recording "made available to the public" would be deemed to be "published" (s. 13).

As required by Article 5 of the WPPT, a performer would enjoy moral rights in his/her performance for the same term as the copyright in that performance (s. 10).

The extension of protection to foreigners, with respect to performances and sound recordings, is the subject-matter of many detailed provisions, apparently designed to satisfy the minimum requirements of the various international agreements signed by Canada (ss. 15 and 16).

Technological Protection Measures and Rights Management Information

Bill C-32 would introduce provisions prohibiting the circumvention of technological protection measures, with a view to ratifying the WCT (Article 11) and the WPPT (Article 18).  A "technological protection measure" (or "TPM") is defined by the Bill as an effective technology, device or component controlling access to a work or restricting the exercise of exclusive rights reserved to copyright owners (s. 47).

The proposed amendments would also prohibit the offering of a service, as well as the manufacture, import and distribution of a technology, device or component with the primary purpose of circumventing a TPM, which is marketed as having such purpose, or which has no other significant commercial use or purpose than to circumvent TPMs.  In case of contravention, a copyright owner would be entitled to all remedies for infringement of copyright (s. 41.1 of the Act if amended).  The Bill would also institute penal sanctions, including a fine up to $1,000,000 or imprisonment for up to five years (s. 42(3.1) of the Act if amended).

The prohibitions would be made subject to a number of exceptions, applicable where a prohibited act is committed for purposes of law enforcement or protection of national security, interoperability of computer programs, encryption research, verification as to whether a TPM permits the collection or communication of personal information, assessing or correcting security flaws, making a work or other subject-matter perceptible to a person with a perceptual disability, allowing a broadcasting undertaking to make an ephemeral reproduction, or gaining access to telecommunication services by means of a radio apparatus (s. 41.11-41.18 of the Act if amended).

The Bill would also prohibit the removing or altering of rights management information, if the person doing such acts knows that the removal or altering will facilitate or conceal any infringement of copyright, or adversely affect a copyright owner's right to remuneration.  In case of contravention, a copyright owner would be entitled to all remedies for infringement of copyright (s. 41.22 of the Act if amended).

EXCEPTIONS TO COPYRIGHT INFRINGEMENT

The proposed amendments are designed to grant consumers additional rights to use content they legally acquire, which means the introduction in the Bill of new exceptions and a broadening of the current exceptions to copyright infringement.

Fair Dealing

Bill C-32 proposes to expand the scope of the fair dealing exception to include those new purposes: education, parody or satire (s. 21). Education would apparently refer to a structured context and would include training in the private sector but would not cover "education" of the public at large.

Non-Commercial User Generated Content

There would be a new exception for non-commercial user generated content (s. 22). Under this exception, a consumer would have the right to use, in a non-commercial context, a publicly available work in order to create a new work. This exception would be subject to conditions, namely the identification of the source, the legality of the work or the copy used, and the absence of a substantial adverse effect on the exploitation of the re-used work.

Reproduction for Private Purpose

A consumer would have the right to reproduce for private purpose any work or protected subject-matter if the source copy was legally obtained (s. 22). This exception would not apply to the copy of a musical work made onto an audio recording medium as defined in section 79 of the Act. Bill C-32 does not propose to amend section 79, for example to refer to media and devices. Therefore, under Bill C-32, reproductions for private use on anything other than CD-Rs and Mini-Disc will not give rise to any remuneration to authors, publishers, performers or sound recordings makers.

Time Shifting and Backup Copies

Consumers would be able to make a fixation of a communication signal and reproduce it once, including the work being broadcast, for the purpose of privately viewing the work at a later time, and provided that the signal is received legally (s. 22).  This exception would not apply to works or sound recordings accessed through an on-demand service, or to works protected by digital locks.

The proposed amendments also provide an exception for backup copies. Once again this exception would not apply to works protected by digital locks (s. 22).

Educational Institutions

Under the proposed amendments, educational institutions will be allowed, for educational purposes, to reproduce a work or to do any other necessary act in order to display it (s. 23). The current exception limits the right of reproduction to manual reproduction or to a copy to be used to project an image using an overhead projector (or similar device). This exception would not apply to works that are commercially available in the Canadian market.

Distance Education

It will not be an infringement of copyright for educational institutions to communicate to the public or to make a fixation of a "lesson" during which a copyright infringement is made by an educational institution (s. 27). Various obligations would however be imposed on educational institutions, such as an obligation to destroy the fixation within 30 days after receipt by students of their final course evaluations; and to install digital locks to protect the lesson. As a result, a new fixation would apparently have to be made each time a particular course is given.

The proposed amendments also create an exception to allow educational institutions that have a licence for the reprographic reproduction of works to make digital reproductions and to communicate them (s. 27). An obligation to install digital locks is once again imposed on educational institutions. This exception would not apply where a collective licence is in place or where a tariff has been certified. The right of a copyright owner to recover damages from educational institutions for a digital reproduction or for the communication of such a reproduction would be limited to the amount of royalties established by the licence in place.

Publicly Accessible Material for Educational Institutions (PAM)

Subject to certain conditions, educational institutions will be allowed, for educational purposes, to reproduce, communicate and perform for students works that are available freely on the Internet (s. 27).  One such condition is that the source of the work be identified.  This exception would not apply to works protected by digital locks, to works found on restricted Internet sites or to works clearly identified as not being subject to this exception.  A mere copyright symbol would not be sufficient as a notice that the exception is not applicable to a work.

Libraries, Archives and Museums

Various amendments to the exceptions for libraries, archives and museums are also proposed in Bill C-32 (ss. 28-30).

Computer Programs

Bill C-32 introduces a series of exceptions with respect to computer programs.  There would be exceptions to the reproduction of computer programs for the purpose of interoperability (s. 31), encryption, research, and correcting security problems.  A further exception would be introduced allowing temporary reproductions made for the sole purpose of facilitating a use that is not an infringement of copyright (s. 32).

Ephemeral Recordings - Mechanical Licence

There would be an amendment to the provision dealing with ephemeral recordings made for broadcasting purposes (s. 34). More specifically, the proposed amendment would eliminate subsection 30.9(6) of the current Act, which provides that the ephemeral recording exception does not apply if a licence is available from a collective society.  The elimination of this provision appears to indicate an intention to eliminate the current obligation of broadcasters to pay for copies made for the purpose of broadcasting.

Network Services

Exceptions would be introduced for the benefit of "persons providing services related to the operation of the Internet or other digital networks" (s. 31.1).

The first exception would provide that the provision of means for the telecommunication or reproduction of protected works or other subject-matter does not in and of itself constitute copyright infringement.  This exception, however, would not provide a shield from liability under new section 27(2.3) for the provision of a service designed primarily to enable acts of copyright infringement.

The second exception would cover caching activities and similar acts performed by network services for the purpose of making the telecommunication of works or other subject-matter more efficient, subject to certain conditions.

Finally, a third exception would shield networks from copyright liability for the provision of digital memory in which another person stores a work or other subject-matter (the "cloud"), unless the service knows that a court has held that the person who has stored the work or other subject-matter infringed copyright (s. 35).

The proposed amendments would create a "notice and notice" system whereby copyright owners would be entitled to send notices of claimed copyright infringement to providers of network services or information location tools (or search engines), identifying an electronic location to which a claimed infringement relates.  The person receiving such notice would have an obligation to forward it to the person to whom the electronic location belongs, and to retain records allowing to identify this person.

The Bill would also limit copyright owners' remedies against information location tool providers found to have infringed copyright to an injunction if certain conditions are met (s. 47).

Persons with Print Disabilities

Subject to certain conditions, Bill C-32 would introduce an exception for non-profit organizations acting for the benefit of persons with a print disability to make of copy of a work in a format specifically designed for persons with a print disability, and to send a copy of the work to similar organizations abroad (s. 37).

Private or Non-Commercial Uses of Photographs

Bill C-32 would allow individuals to make private or non-commercial uses of photographs commissioned by them, unless the individual and the copyright owner have agreed otherwise (s. 38).

OTHER PROVISIONS

Remedies for Copyright Infringement

Bill C-32 would vary the rules applicable to the award of statutory damages under section 38.1 of the Act.  The amount of statutory damages available to the copyright owner would become dependent upon the commercial or non-commercial purpose of the infringement.  The current range of statutory damages (between $500 and $20,000 per work or subject-matter infringed) would only apply to cases of infringement for commercial purposes.  The Bill would limit the availability of statutory damages in cases of infringement for non-commercial purposes, and cap their quantum to between $100 and $5,000 (s. 46(1)).

The Bill would also limit the presumption of subsistence and ownership of copyright provided under section 34.1 to civil proceedings only (s. 44).

Periodic Review of the Act

Section 58 of the Bill would institute a process whereby a committee of the Senate, the House of Commons, or both, would be designated or established every five years for the purpose of reviewing the Act (s. 52).

Footnote

1. References are to the provisions of the Bill unless otherwise mentioned.

About Ogilvy Renault

Ogilvy Renault LLP is a full-service law firm with close to 450 lawyers and patent and trade-mark agents practicing in the areas of business, litigation, intellectual property, and employment and labour. Ogilvy Renault has offices in Montréal, Ottawa, Québec, Toronto, and London (England), and serves some of the largest and most successful corporations in Canada and in more than 120 countries worldwide. Find out more at www.ogilvyrenault.com.

Voted best law firm in Canada two years in a row.
2008 and 2009 International Legal Alliance Summit & Awards.

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