Canada: Bill C-32 The Copyright Modernization Act: What Have We Heard So Far?

Last Updated: March 23 2011
Article by Sundeep Chauhan

On June 2, 2010 the Federal Government tabled Bill C-32: the Copyright Modernization Act in Parliament (Bill C-32). Bill C-32 represents a comprehensive set of amendments to the Copyright Act (the "Act"). The aims of Bill C-32 are twofold. One, to modernize the Act (which has not seen significant amendments since 1997), and two, to facilitate the ratification of two of Canada's longstanding international treaty commitments i.) The World Intellectual Property Organization (WIPO) Copyright Treaty, and ii.) the WIPO Performances and Phonograms Treaty. While both user and creator groups agree that reform is necessary, the Parliamentary Committee Hearings have demonstrated that neither side is happy with Bill C-32 as drafted. While the proposed amendments in Bill C-32 are numerous and complex, I have identified some of the most debated provisions and arguments and organized them under two headings: i.) New Rights, and ii.) Limitations on Rights.

Summary of NEW RIGHTS

  • Technological Protection Measures (TPMs): Bill C-32 creates legal protection for the various technical means employed to protect works against potential copyright infringements e.g. the copy protection used on DVDs.
  • Enabling Circumvention & Infringement: Prohibits, except under limited circumstances, the circumvention of TPMs and the offering of services that are primarily aimed at circumventing TPMs and enabling infringement.
  • Making Available Right: Confirms that copyright holders have the exclusive right to authorize (or prohibit) their works from being made available on the Internet.
  • Moral Rights for Performers: Grants moral rights (which allow a creator to protect the integrity of their work) to artists in their performances for a period of 50 years from the time of publication.
  • Ownership of Photographs: Grants photographers the same authorship and ownership rights as other creators i.e. they are now the owners of copyright in their photographs.

Summary of LIMITATIONS ON RIGHTS

  • Internet Service Providers (ISPs) or Search Engines: Limits ISPs' or search engines' liability for copyright infringement where they merely provide the means to access the Internet or another digital network.
  • Hosting Services: It is not copyright infringement to provide online digital storage which another person may use to store an infringing copy of a work.
  • User-Generated Content: Permits non-commercial "remixes" of copyrighted content such as music or "mash-ups" of different works into one work.
  • Format Shifting: Under certain circumstances, Bill C-32 allows "format shifting" (e.g. transferring music from a purchased CD to an iPod) and "time shifting" (e.g. recording television programs for later viewing) when done solely for private use.
  • Software: Permits the duplication of software for back-up, security, encryption research, and interoperability (the ability of a system to work with another system) purposes.
  • Fair Dealing: Expands the scope of the "fair dealing" provisions (which allow the use of copyrighted material without the permission of the copyright owner) in the Act to also include education, parody and satire.
  • Temporary Reproductions for Technological Processes: Permits the making of copies of protected works temporarily where it is an essential part of a technological process (e.g. caching).
  • Educational Institutions, Libraries, Museums and Archives: Permits a wide range of new activities in order to allow for these institutions to use new digital technologies and grants new infringement exceptions (e.g. reproductions to facilitate distance learning and back-up copies).
  • Broadcasters: Grant Broadcasters exemptions for making temporary copies of sound recordings on their digital networks for purposes of radio play.
  • Statutory Damages: Creates separate statutory damages regimes for "commercial" and "noncommercial" copyright infringement, with the later category being subject to greatly reduced damage amounts.

NEW RIGHTS

Technological Protection Measures (TPMs)

Under Bill C-32, TPMs (e.g. copy protection on works such as a DVD, iTunes track, eBook, or software) would receive protection from hacking by treating instances of TPM circumvention as copyright infringement. User groups are dissatisfied with the provision as it applies even when the product is legally acquired. Educational institutions, have proposed that Bill C-32 be amended to permit the breaking of digital locks for any purpose that does not infringe copyright, and to permit the provision, marketing or importation of devices and services to enable digital locks to be broken for a non-infringing purpose. However, creator groups argue that TPMs are essential for new and innovative business models to emerge. For example, the 99 cent iTunes movie rental (which destroys itself after a set period of time due to a TPM) could become a replacement to the $15 iTunes movie purchase (which remains on the users hard drive and can be transferred to and played back via various devices such as an AppleTV) if a person could simply circumvent the TPM that protects the rental and convert it into a permanent copy. Notably, the Bill states that an individual who circumvents a TPM could not be ordered to pay statutory damages, rather, the copyright holder would have to prove their damages. The Bill contains a number of exceptions for circumventing a TPM such as unlocking a cell phone, for the purposes of law enforcement and national security, encryption research, and access for persons with perceptual disabilities among others. The Governor in Council can also expand the list of exceptions through regulation.

Enabling Circumvention & Infringement

Bill C-32 prohibits the distribution and marketing of devices, such as software designed to copy video games, that can be used as TPM-circumvention tools. Under Bill C-32, it is also considered copyright infringement to set up services to enable infringement (e.g. online torrent tracker sites which one can access to then download copyright protected materials). While the enabling provisions are welcomed by creators, they recommend clarifying Bill C- 32's language to ensure that services that are not just designed, but in reality operate, to enable infringement are also captured by the provision. Similarly, they argue that amendments are required to ensure rights holders obtain the full range of legal remedies against enablers, notably statutory damages.

Making Available Right

Bill C-32 allows for a "making available right" which means that performers and record labels have the exclusive right to make their sound recordings available to the public over the internet (e.g. iTunes) and to sell or transfer ownership in physical recording for the first time.

Moral Rights for Performers

Bill C-32 grants performers moral rights (i.e. the right to protect the integrity of their works) and to have the works attributed (or not attributed) to them as they choose (e.g. by name, pseudonym, or anonymously).

Ownership of Photographs

Bill C-32 makes the photographer the owner of copyright in their commissioned works which would bring the ownership of copyright in line with other creators such as authors and performers. Under the current Act, the first owner of copyright in a photograph is the person who commissions the photograph unless there is a contract to the contrary.

LIMITATIONS ON RIGHTS

Internet Service Providers (ISPs) and Search Engines

Bill C-32 would confirm that ISPs (e.g. Rogers) or information location tools such as search engines do not infringe copyright when they act strictly as communications intermediaries for the infringement activities of their customers i.e. merely provide the means to access the Internet or another digital network. Bill C-32 would also formalize the already used "notice and notice" regime of ISPs contacting and informing a suspected copyright infringer of copyright owners' desire to enforce their rights. The ISP or search engine's obligation would be to store the subscriber's IP information for six months or one year if a court action is initiated by the copyright holder. Notice and notice is under attack by creators who favour a more time-sensitive "notice and take down" system to stop infringement i.e. when the ISP is contacted by the copyright owner it immediately takes down or blocks access to the content. A notice and notice regime is seen by creators as an especially weak deterrent when combined with the lower limits - or elimination in many cases - of statutory damages against an alleged infringer under Bill C-32.

Hosting Services

Bill C-32 provides that it is not copyright infringement to host i.e. provide "digital memory", which another person then might use to store an infringing copy of a work, unless notified by a court of the infringement. Examples of this type of service would be online storage services such as Hotfile or Megaupload which freely - and for a premium - provide large amounts of online storage space. The Hosting Services provision is under attack by creators given the prevalence of these digital storage lockers as sources of unauthorized copyrighted content. Also problematic is that under Bill C-32 statutory damages are not available against persons who have been found liable for enabling infringement.

User-Generated Content

Known as the "YouTube" clause, Bill C-32 would permit individuals to create and upload "remixes" or "mash-ups" i.e. works that use existing copyrighted content, when done for non-commercial purposes, providing that the new work has no substantial adverse impact on the original work, is from a legal source and the source is identified. This provision has raised concerns among creator groups as it i.) legitimizes previously infringing activities, ii.) eliminates existing sources of revenue via negotiated agreements or collective licensing, and iii.) allows sites like YouTube to leverage copyright-protected work for commercial gain with no obligation to compensate the creators of the original content. Notably, amongst all the countries who have ratified the WIPO treaties, Canada would be the only one with such a provision. Also of note, the provision for user-generated content is not limited to the online dissemination of digital content.

Format Shifting

If the source content is legally acquired in that it is not borrowed or rented, Bill C-32 would create exceptions to infringement for "format shifting" (e.g. transferring music from a purchased CD to an iPod) and "time shifting" (e.g. recording television programs for later viewing) when done solely for private use. These exceptions do not apply, however, in situations where the creator has chosen to protect the work by a TPM. Notably, reproductions made will not give rise to any additional remuneration to creators despite their exclusive right of reproduction set out in the Act. Such remuneration is for example, currently collected via tariffs by collective societies i.e. organizations representing large groups of rightsholders. Additional remuneration to creators may, however, occur if reproductions are made onto media like CD-R's and minidiscs which are already subject to a blank media levy.

Software

Bill C-32 would permit the copying of software, i.e. computer programs, for interoperability (the ability of the software to work with or use another system), encryption, research, and correcting security problems.

Fair Dealing

Bill C-32 expands the scope of the "fair dealing" provisions in the Act (which allow the use of copyrighted material without the permission of the copyright owner) from news reporting, criticism, research and private study to include education, parody and satire. The inclusion of "education" in the list of fair dealing exceptions has raised concerns for creators as uses which once generated revenue streams for creators, i.e. unit sales of educational books and audiovisual works and reproduction license fees collected via copyright royalty tariffs, would be greatly reduced.

Temporary Reproductions for Technological Processes

Bill C-32 would permit the making of copies of protected works temporarily when done as an essential part of a technological process, i.e. cached temporary versions will not be considered infringements. This provision would apply, for example to, internet search engines who use caching to speed up the delivery of their services.

Educational Institutions

Bill C-32 permits a wide range of new activities by educational institutions. The proposal would permit these institutions, subject to certain limitations, to reproduce a protected work or to do any other acts necessary to display it, to engage in activities that would normally be an infringement of copyright in order to facilitate distance learning over the internet, and to make and communicate digital reproductions of a work where a license for traditional reprographic reproduction already exists. These types of provisions are subject to criticism by creators groups for decreasing existing sources of reproduction and performance revenues exercised either through direct licenses entered into between the institutions and creators or the payment of applicable copyright royalty tariffs by the institutions. Educational institutions while generally supportive of the language in the Bill would also like amendments e.g. that the requirement that the institution destroy any recording of an online lesson within 30 days after the students receive their evaluations be removed so that the materials may be reused in future course offerings, and the elimination of statutory damages where copyright is infringed unintentionally.

Libraries, Museums and Archives

Bill C-32 would permit libraries, museums and archives to make copies of works in their permanent collections in an alternate format where the original format is obsolete or the technology required to use the original is unavailable or becoming unavailable (e.g. libraries may also distribute materials electronically subject to measures where the recipient prints only one copy, does not communicate the copy further and ensures that it is destroyed within five days. Similar to the educational exceptions discussed above, these provisions are subject to criticism by creators groups for decreasing existing reproduction and performance revenues. Educational institutions have proposed amendments which would permit the recipient of an inter-library loan to retain a copy in digital format indefinitely.

Broadcasters

Bill C-32 would grant broadcasters, i.e. radio stations, a 30- day exemption for making copies of sound recordings. This provision is subject to criticism by creators groups for ignoring the exclusive right of the creator to make and authorize the making of such copies. Creator groups are also concerned that this exemption will result in the elimination of the reproduction revenues currently collected from radio stations. Broadcasters argue that they should pay once for playing music on the air (where they yield revenue) and not for technical digital copies.

Statutory Damages

Under Bill C-32, the statutory damages available to a copyright holder are broken down into two categories: "commercial" and "non-commercial" copyright infringement. The current range in the Act of up to $20,000 in statutory damages would continue to apply in a "commercial" context whereas in a "non-commercial" context (e.g. an individual who downloaded music from a peer-to-peer file-sharing service) damages would be capped at between $100-$5,000 for all infringements in a single proceeding, regardless of the number of works infringed. These provisions are subject to criticism from creators as i.) the courts previously had the discretion to reduce damages in cases of "non-commercial" infringement, and ii.) the high cost of litigation could now outweigh the potential remedies available.

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 Mondaq.com.

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

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (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 www.mondaq.com

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 Mondaq.com’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.

Disclaimer

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.

Registration

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 by clicking here .

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 unsubscribe@mondaq.com 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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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 webmaster@mondaq.com.

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 EditorialAdvisor@mondaq.com.

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 enquiries@mondaq.com.

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