Canada: The Copyright Modernization Act - How will the New Exceptions Impact You?

Last Updated: November 11 2010
Article by Margot E. Patterson

This article previously appeared in Focus on Construction | Infrastructure - November 2010

Bill C‐32, the Copyright Modernization Act, has been the subject of a great deal of attention and debate since it was introduced in June, over issues such as "digital locks", "users' rights", and whether and how Canada is keeping up with other countries in protecting copyright. Reforming the Copyright Act is a government priority, and with Parliament now back in session, the bill will soon be before the Committee for review.

Rapid advances in the use of digital media to access, use, share and copy works have had led to increased pressure to overhaul Canada's copyright legislation, which has not been significantly revised since the last general amendments in 1997. Over the years, the government has conducted stakeholder consultations and put forward bills intended to better align our legislation with the digital environment, and with international standards as set out in two 1996 World Intellectual Property Organization treaties. Two bills died on the Order Paper in 2005 and 2008. Bill C‐32 is the most recent proposal to balance out the policy concerns of increasing innovation and competition against creators' needs to protect their works. How best to achieve this balance has always been one of copyright's most fundamental issues.

This article focuses on the access to, and use of, works in the digital environment through copyright exceptions. Much of the tension in the Copyright Act which characterizes its balance is found in those significant words: "it is not an infringement of copyright to..." engage in those defined activities the government has identified as being exempt from liability.

The Bill C‐32 proposed exceptions are listed in the second part of this article. Before arriving there, however, it is worth noting that while copyright in Canada is statutory law, the courts and the Copyright Board of Canada have increasingly found themselves defining the reach and limits of rights and exceptions – in the absence of "modernized" legislation.

Defining the Rights of Owners and Users in Copyright Decisions

For example, in the 2002 decision Théberge v. Galerie d'Art du Petit Champlain inc., the Supreme Court of Canada said that the proper balance lies not only in recognizing creators' rights but also "in giving due weight to their limited nature". Two years later, in CCH Canadian Ltd. v. Law Society of Upper Canada, the Court observed that the Copyright Act sets out the rights and obligations of both copyright owners and users, and said that exceptions to copyright infringement can be understood as "users' rights".

In July, the Federal Court of Appeal upheld a Copyright Board decision that the fair dealing exception in the Copyright Act, which applies to "research", covered the 30‐second previews of songs available online for purchase and download. The Society of Composers, Authors and Music Publishers of Canada (SOCAN) had wanted its tariff for online uses of music to reflect the distinct value of previews and is now seeking an appeal to the Supreme Court. SOCAN wants the Court to rectify a "very significant and unwarranted expansion in the scope of" fair dealing, noting that the case "raises important questions about the scope and application of the Copyright Act, particularly the fair dealing defence", in the "new world of copyright", characterized by mass use of digital media.

Defining the Rights of Users and Owners in Legislation: the Bill C‐32 Exceptions

For those who wish to avoid copyright liability in their business operations or private uses, and for those who are closely watching how their rights will be limited under the Copyright Act, here is a list of the expanded or new exceptions to copyright protection proposed in Bill C‐32. Eventually, some aspects of these can be expected to be tested before copyright decision makers, such as the courts and the Copyright Board. As legislative proposals, however, all efforts are now focused on making sure the provisions are fair, workable, and meet the government's stated policy objectives.

Fair Dealing

Fair dealing has long been part of Canadian copyright law to allow certain uses that have significant social benefits. The existing fair dealing exceptions cover research and private study (s. 29), and with certain requirements, criticism or review (s. 29.1).

The bill adds education, parody and satire as noninfringing activities (s. 29). New exceptions are also provided for non‐commercial, usergenerated content (e.g. for mash‐ups of video clips (s. 29.21)), making copies for private purposes (e.g. "format shifting" songs to an MP3 player (s. 29.22)), time‐shifting programs on PVRs and other devices (s. 29.23), and for making backup copies to protect against loss or damage (s. 29.24).

Educational Institutions

The government has expanded the ability of teachers and students to use digital technology and copyright materials without liability. The bill adds exceptions for instructors to send lessons by telecommunication (e.g. for distance education (s. 30.01(3)), and for their students to copy the lesson in order to access it at a more convenient time (s. 30.01(5)). Exceptions are introduced where the educational institution has a reprographic reproduction (photocopy) licence to make digital copies of works (s. 30.02(1)), and for the instructor to print one copy of the work (s. 30.02(2)). Educational institutions and instructors are also granted exceptions to use works and other materials available through the Internet, subject to certain limitations (s. 30.04(1)).

Computer Programs and Technological Processes

As the government has pointed out, the last round of updates to the Copyright Act took place at a time when many of the digital media and technologies widely available today were not yet developed (or even imagined). The government states that it wants to permit greater flexibility in using computers, systems and programs in ways that do not create unanticipated or incidental copyright liability. It also has the policy goal of supporting innovative, competitive businesses and markets, such as the Canadian third‐party software market.

New exceptions are granted to copy a computer program to make it interoperable with another (s. 30.61), and to copy a work or other subjectmatter for the purposes of encryption research (s. 30.62), or for computer system or network security purposes (s. 30.63). A broad new exception is introduced for making temporary reproductions for "technological processes" (s. 30.71), which are not defined in the bill.


The existing Copyright Act provides exceptions to programming undertakings – broadcasters or broadcast distributors that originate their own programming – to make certain reproductions without liability. The exceptions are limited in certain ways, however, and are not applicable where a copyright‐collective society seeks payment for the reproductions through a licence. To advance the government's policy to limit liability for making temporary, incidental digital copies, the bill considerably expands the scope of the exception and its availability to broadcasters.

Network Services

The government wants to clarify that ISPs and search engines are not liable when they deal with content only as intermediaries. The bill grants exceptions for "providing services related to the operation of the Internet or another digital network" (s. 31.1(1)), for caching and other similar incidental acts (s. 31.1(3)), and for hosting (s. 31.1(5)).

Perceptual Disabilities

The Copyright Act provides for exceptions for persons with disabilities. A new exception is granted for non‐profit organizations for the visually impaired, such as the CNIB, to make and send copies of works that are accessible to persons with a print disability to similar organizations outside Canada (s. 32.01(1)).

Private Uses and Non‐Commercial Infringement

Greater flexibility is given to use personal photos that are professionally taken: the bill provides new exceptions for private or non‐commercial use of photographs commissioned for personal purposes (s. 32.2(1)(f)).

Technological Protection Measure (TPM) Circumvention

The debate over access versus protection has made TPMs the focus of some of the most significant and contentious issues surrounding the bill. TPMs are sometimes called "digital locks", which may be used by rightsholders to control access to their work (e.g. by password or access code) or to prevent copying (e.g. by encrypting the work). Bill C‐32 supports these measures with legal protection, making it illegal to: bypass or circumvent the TPM; to manufacture, sell or distribute devices designed to hack TPMs; or to offer services to do so.

In the interest of fair access, innovation and competition, the government has limited the protection for TPMs by providing exceptions for circumventing them:

  • for purposes of law enforcement and national security (s. 41.11);
  • for the interoperability of computer programs (s. 41.12);
  • for encryption research (s. 41.13);
  • to prevent the collection or use of personal information (s. 41.14);
  • for computer system or network security purposes (s. 41.15);
  • for making works, performances or recordings accessible to persons with perceptual disabilities (s. 41.16);
  • for broadcasting undertakings, to benefit from the temporary recordings exception in s. 30.9, (s. 41.17); and
  • for unlocking a wireless device (s. 41.18).

The government may enact regulations adding to the above list of exceptions, if for example it considers it necessary to lift restrictions on competition in the applicable sector.

Bill C‐32 has the potential to change Canada's copyright landscape significantly. If history repeats itself, further broad copyright reform may not occur again for a number of years. This presents a unique opportunity to ensure that this bill – should it survive – delivers positive change for stakeholders which will stand the test of time.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions