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.

Events from this Firm
16 Oct 2018, Other, Calgary, Canada

Dentons and SheEO are coming together for a morning of #radicalgenerosity on October 16, 2018. Meet Vicki Saunders, Founder of SheEO, and learn about how SheEO is changing the landscape for female entrepreneurs.

17 Oct 2018, Webinar, Toronto, Canada

Dentons and SheEO are coming together for an evening of #radicalgenerosity on October 17, 2018. Meet Vicki Saunders, Founder of SheEO, and learn about how SheEO is changing the landscape for female entrepreneurs.

17 Oct 2018, Webinar, Toronto, Canada

With the continued focus on Bill 148’s significant changes to the Employment Standards Act, Dentons’ Toronto Employment and Labour group is pleased to launch a new webinar series focusing on Bill 148.

Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
Bennett Jones LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
Bennett Jones LLP
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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