On September 29, 2011, the federal government introduced Bill
C-11, An Act to Amend the Copyright Act, also known as the
Copyright Modernization Act. The current bill is said to be
identical to the prior Bill C-32, which was tabled in June 2010
after extensive consultation with the public and various
stakeholders. Bill C-32 progressed to second reading, but died on
the order paper when a federal election was called in March
The existing Copyright Act has not been substantially
amended since 1997. A number of amending bills have been tabled
since then, but each has died before being passed into law.
The current proposed legislation is wide sweeping, but in
general terms, key areas of reform include:
The proposed legislation would prohibit the circumvention of
technological protection measures used by rights-holders to secure
and control their digital content. The bill would also prohibit
providing such circumvention services to others and dealing in
technology designed to circumvent technological protection
Notice and notice provisions and service over the
The bill limits the liability of Internet service providers
(ISPs) and Internet search engines for copyright infringement of
their subscribers and implements a "notice and notice"
scheme. Copyright owners discovering infringement would be entitled
to send a notice of claimed infringement to an ISP who would
in turn be obliged to forward it to the alleged infringer
identified in the notice. The ISP would also be required to retain
records relating to the identity of the alleged infringer for a
period of time. The copyright owner would be required to obtain a
court order for the release of the identity information from the
The proposed legislation also makes it an infringement for
anyone to provide a service over the Internet or another digital
network that they know or should know is designed to enable acts of
copyright infringement. A number of factors are outlined to
determine whether there is infringement, including how the service
was promoted, the provider's knowledge that the service was
used to enable acts of infringement, the benefit received, and
whether the service would be economically viable without
enabling acts of infringement.
The proposed legislation expands the existing fair-dealing
exception categories to include fair dealing for the purpose
of education, parody or satire.
In addition, the bill provides a number of rights and
exemptions relating to educational institutions and the use of
digital technologies for educational or training purposes.
Non-commercial use exceptions
The proposed legislation would permit reproduction for
private purposes. Specifically, individuals would be permitted to
make copies of a work for private purposes provided the original
work is a legally owned copy, technological protection measures are
not circumvented, the copy is not given away and certain other
Time-shifting (making a copy for the purpose of viewing or
listening at a later time) is also permitted, but subject
to limitations including that the recording is used only for
private purposes and is not kept longer than reasonably
Making backup copies is permitted, but subject to certain
limitations including that technological protection measures are
The bill permits individuals to
use existing works in the creation of user-generated
content provided, broadly speaking, that it is solely for
non-commercial purposes, the source of the original work
is mentioned, the original work is non-infringing, and there
is no resulting substantial adverse effect on the exploitation of
the original work.
The bill also limits damages in the case of infringement for
The government has expressed its intention to fast-track this
legislation. Given that the Conservative government currently
enjoys a majority, the bill may very well pass quickly and with few
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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