On Friday, March 25, 2011, the Conservative government lost a
non-confidence motion bringing the current session of Parliament to
an end and setting the stage for a Spring election, called for May
The government's fall signals the demise of a number of
bills, including Canada's copyright reform bill, Bill C-32.
Notwithstanding the extensive consultations on Bill C-32, and
passing first reading, long-awaited amendments to Canada's
copyright legislation are again delayed indefinitely. This will be
the third time that efforts at copyright reform have failed in the
past five years.
The last substantive amendments to the Copyright Act
were in 1997. The way Canadians use copyrighted material has
changed significantly since then. Balancing the rights of copyright
owners and users in a rapidly changing digital world is difficult,
however given Canada's stated desire to adhere to the WIPO
Copyright Treaty, there has long been a need to address digital
locks and the ability to transfer works between media, the rights
and obligations of Internet service providers (ISPs) and the bounds
of fair dealing for educational institutions in our copyright
legislation. It will remain to be seen if copyright reform will be
a priority after the election.
While Bill C-32 is consigned to the recycling bin, the debate in
the courts continues as to whether ISPs engage in the kind of
broadcasting activity that would require payments under tariffs set
by the Copyright Board, or oversight of the Canadian
Radio-television and Telecommunications Commission (CRTC).
On March 24, 2011 the Supreme Court of Canada indicated that it
would hear an appeal that will determine whether ISPs are engaged
in broadcasting when music is downloaded from an Internet server.
The appeal stems from a decision of the Copyright Board, which
found that downloads of music files from an Internet server to an
individual computer amounted to the communication of that file to
the public by telecommunications and thus were the proper subject
for a tariff setting out the royalties that would be payable for
such a communication. Notably, transfer of the file to a single
user constituted "communication to the public". This
decision was upheld by the Federal Court of Appeal. Such a decision
is added to a line of prior decisions in which point to point
communications, such as emails, were not considered communications
to the public.
The Supreme Court has not fixed a date for the hearing. This is
expected to be a closely watched decision, particularly as more
individuals access music, television and film through their
computers and not traditional radio and television
Like copyright reform, any law reform in a number of other
important fields will also, for the time being, occur before the
courts and tribunals and not through legislative action of
Other legislation of interest to the IP and technology sector
which also died upon the dissolution of Parliament includes:
The result of the five-year review of national private sector
privacy legislation, C-29, An Act to amend the Personal Information
Protection and Electronic Documents Act (Safeguarding
Canadians' Personal Information Act)
Efforts to modernizing police powers in an information age
addressing interception of private communications and related
warrants and orders, C-50, An Act to amend the Criminal Code
(Improving Access to Investigative Tools for Serious Crimes
Modernization of certain offences in the Criminal Code and the
Competition Act to take into account new communications
technol¬ogies, to equip law enforcement agencies with new
investigative tools that are adapted to computer crimes and to
facilitate collaboration with foreign law enforcement agencies,
C-51, An Act to amend the Criminal Code, the Competition Act and
the Mutual Legal Assistance in Criminal Matters Act
(Investigative Powers for the 21st Century Act)
Legislation requiring telecommunications service providers to
put in place certain capabilities that facilitate lawful
interception of information transmitted by telecommunications and
to provide basic information about their subscribers to policy,
intelligence services and to the Commissioner of Competition, C-52,
An Act regulating telecommunications facilities to support
investigations (Investigating and Preventing Criminal
Electronic Communications Act).
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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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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