Canada: Intellectual Property Weekly Abstracts Alert - Week of October 10, 2011

Last Updated: October 17 2011
Most Read Contributor in Canada, September 2016

Edited by Chantal Saunders and Beverley Moore


After Bill C-32, the Copyright Modernization Act, died on the order table following the last election, the Government of Canada re-introduced on September 29, 2011 the Copyright Modernization Act as Bill C-11 with the exact same text as previously proposed under Bill C-32. However, with a firm majority, the Conservative government is now expected to pass the amendments to the Copyright Act before the end of 2011, which would represent the first major changes to the Copyright Act since 1997.

A summary of the most significant changes to the Copyright Act as proposed by Bill C-11 can be found below (as reproduced from the July 2010 edition of the BLG Intellectual Property Bulletin entitled "Bill C-32: Proposed Amendments to the Copyright Act" [available here]:


One of the cornerstones of the proposed amendments to the Copyright Act is the introduction of provisions that prohibit the circumvention (i.e. unauthorized descrambling, decryption, avoidance, bypassing, removal, deactivation and impairment) of technological protection measures (TPM), i.e. "digital locks", which are often used on movies, music, books, etc. This prohibition on the circumvention of TPMs is a general and overriding provision that trumps many of the other rights provided for under the proposed amendments. The prohibition on circumventing TPMs also encompasses offering services and providing any device designed primarily for the purpose of circumventing a TPM.

Under the proposed amendments, where there is a breach of the anti-circumvention of TPM provisions, the owner of copyright is entitled to all remedies available in situations of infringement, except in limited circumstances such as statutory damages where the contravention was only for private purposes. In addition, the circumvention of a TPM would trigger criminal sanctions for individuals who are found guilty of infringement in commercial contexts. In the case of a conviction on the basis of indictment, an individual would be liable to pay a fine not exceeding $1,000,000, imprisonment for a term not exceeding 5 years, or both. In cases of summary conviction, an individual would be liable to pay a fine not exceeding $25,000, imprisonment for a term not exceeding six months, or both.

The proposed amendments provide limited exceptions from liability in respect to the circumvention of a TPM, such as investigations related to law enforcement and national security, and acts related to the interoperability of computer programs, encryption research, security of computer systems, making a work perceptible to persons with perceptual disabilities, broadcast undertakings, and for gaining access to a telecommunication service by means of the radio apparatus (i.e. "unlocking" cell phones). Interestingly, there is also an exception for cases where a TPM is not accompanied by a notice indicating that its use will permit a third-party to collect and communicate personal information relating to the user. Even where such a notice exists, an exception exists for cases where the user is not provided with the option to prevent the collection and communication of personal information. Under this exception, the user is permitted to circumvent the TPM to verify and prevent a TPM from collecting and communicating such personal information.

The proposed amendments also add a similar prohibition on the unauthorized removal or alteration of any rights management information in electronic form that is used in relation to a work where such acts will facilitate or conceal an infringement.


The proposed amendments to the Copyright Act would provide performers and sound recording makers with expanded rights, including the sole right to authorize the making available and communication of sound recordings to the public over the Internet. These amendments would have the impact of prohibiting individuals from sharing digital music online. The Copyright Act would also be amended to expand the scope of moral rights of performers in respect of the above rights while extending the term of copyright protection for performers in a sound recording to 50 years from the first publication of the sound recording or 99 years from the musical performance, whichever is earlier. For sound recording makers, the term of copyright protection in a sound recording would extend to 50 years from the first fixation or first publication of the sound recording. Copyright in a communication signal would subsist for 50 years from when the communication signal is broadcast.


The proposed amendments would make it an infringement of copyright for any person to provide a service that is designed primarily for the purpose of enabling acts of copyright infringement over the Internet, e.g. peer-to-peer (P2P) distribution. In this regard, factors have been provided to the courts to help make a determination as to whether such an infringement has occurred. These include: (1) whether the service was expressly promoted as one that could enable acts of copyright infringement; (2) whether the person had knowledge that the service was used to enable a significant number of acts of infringement; (3) whether the services have significant non-infringing uses; (4) whether the service has any mechanisms to limits acts of infringement; (5) the benefits the person received as a result of enabling acts of infringement; and (6) the economic viability of the service without being able to enable acts of copyright infringement.


The proposed amendments would introduce a "notice and notice" system that allows copyright owners to send a notice of claimed infringement in a specified format to an Internet services provider (ISP). Once a notice of claimed infringement is received, the ISP is then required to forward that notice the alleged infringer. The ISP is also required to retain records as to the identity of the alleged infringer for a period of six months, or one year in the event that court proceedings are commenced in respect of the alleged infringement. Should an ISP fail to comply under this "notice and notice" system, the copyright owner is entitled to claim statutory damages against the ISP of between $5,000 to $10,000.


The proposed amendment would amend the current statutory damages provisions to make distinctions between commercial and non-commercial infringements and provide copyright owners with the ability to elect statutory damages of: (1) $500 to $20,000 if all of the infringements are for commercial purposes; and (2) $100 to $5,000 if all of the infringements are for non-commercial purposes.

Under the proposed amendments, and in the case of non-commercial infringements, the election of statutory damages bars the copyright owner, and any other copyright owner, from later recovering such statutory damages in respect of any of the defendant's other non-commercial infringing activities that were done before the infringement proceedings commenced.

In the case of commercial infringements, the proposed amendments would provide that a lack of knowledge of the infringement by the infringer would allow the court to lower the award of statutory damages against the defendant to between $200 and $500 if: (1) there is more than one work in a single medium; and (2) awarding even the minimum amount would result in a total award that is grossly out of proportion to the infringement.

In addition, and under the proposed amendments, where a collective society is acting against a defendant and the infringement is non-commercial, the courts would also need to consider the proportionality of the award of statutory damages to the infringements, the hardship to the defendant, whether the infringement was for private or public purposes, and the impact of the infringements on the plaintiff.

These proposed amendments would decrease the scope of statutory damages available to copyright owners against infringers as compared to under the current regime, which provides that a copyright owner can elect for statutory damages of between $500 to $20,000 per work infringed. The proposed amendments would limit such statutory damages in the case of non-commercial infringements from between $100 to $5,000 for all infringements in a single proceeding for all works.


The proposed amendments would introduce several new exceptions to infringement:

Expansion of the "Fair Dealing" Exception

The proposed amendments would expand the scope of the fair dealing exception to the infringement of copyright by adding education, parody, and satire to the existing exceptions for research, criticism, review or news reporting, and private study.

Non-Commercial User-Generated Content – "Mash-ups"

The proposed amendments would create a new exception to the infringement of copyright for non-commercial user-generated content by permitting individuals to use an existing copyright protected works in the creation of a new work, if: (1) done solely for non-commercial purposes; (2) the source of the existing work is mentioned if reasonable to do so; (3) the individual has reasonable grounds to believe that the existing work is non-infringing; and (4) the use or dissemination of the new work does not have a substantial adverse effect on an existing or potential market for the existing work. This new exception would exempt from infringement the creation, use, and dissemination of "mash-ups", i.e. a work created by combining or remixing two or more distinct works. While different types of mash-ups exist, they are most commonly found in the form of videos available on websites such as YouTube.

Reproduction for Private Purposes – "Format Shifting"

The proposed amendments would create a new exception to the infringement of copyright for an individual to reproduce a work if: (1) the copy of the work is not an infringing copy; (2) the individual legally obtained the work, other than by borrowing or renting it, and owns the medium or device on which it is reproduced; (3) the individual does not circumvent a TPM; (4) the individual does not give away the reproduction; and (5) the reproduction is used only for private purposes. However, the exception does not apply to reproductions of musical works onto an "audio recording medium", such as a CD. In addition, the exception does not apply if the reproductions are not later destroyed. While this new exception provides for "format shifting", there are a number of uses that do not fall under the exception and are infringements of copyright, e.g. borrowing a CD and transferring the content from the CD to an iPod.

Reproduction for Later Listening or Viewing – "Time Shifting"

The proposed amendments would create a new exception to the infringement of copyright for an individual to record using any recording device a broadcast television, radio or Internet program for the purpose of listening or viewing that program later if: (1) the individual receives the program legally; (2) the individual does not circumvent a TPM; (3) the individual makes no more than one recording of the program; (4) the individual keeps the recording for no longer than is reasonably necessary to listen or view the program; (5) the individual does not give away the recording; and (6) the recording is only used for private purposes. These provisions create an exception for "time shifting" broadcast TV, radio, and Internet programs but does not include on-demand services where the user can receive the work, performance, and sound recording at a time of their choosing.

Backup Copies

The proposed amendments would create a new exception to the infringement of copyright for an individual who owns or has a license to use a "source copy" of a work to reproduce that source copy if: (1) the person does so solely for back-up purposes where the source copy is lost, damaged, or unusable; (2) the source copy is not an infringing copy; (3) the individual does not circumvent a TPM; and (4) the individual does not give away any of the reproductions. Where a backup is made in such cases, the backup copy becomes the source copy and the user is required to destroy all reproductions made.

Interoperability of Computer Programs

The proposed amendments would create a new exception to the infringement of copyright in a computer program for a person who owns a copy, or a license to reproduce the copy, to reproduce the copy for the sole purpose of obtaining information that would allow the person to make the program interoperable.

Encryption Research

The proposed amendments would create a new exception to the infringement of copyright for a person to reproduce a work for the purpose of encryption research if: (1) it would not be practical to carry out the research without making the copy; (2) the person lawfully obtained the work; and (3) the person has informed the owner of copyright in the work.


The proposed amendments would create a new exception to the infringement of copyright for a person to reproduce a work for the sole purpose of assessing the vulnerability of a computer, system or network or of correcting security flaws, provided consent of the owner or administrator of the same is obtained.

Temporary Reproductions for Technological Processes

The proposed amendments would create a new exception to the infringement of copyright for making a reproduction of a work if: (1) the reproduction forms an essential part of the technological process; (2) the reproduction's only purpose is to facilitate a use that is not an infringement of copyright; and (3) the reproduction only exists for the duration of the technological process.

Network Services – Limitation of Liability for ISPs

The proposed amendments would create a new exception to the infringement of copyright for ISPs when they are acting solely as intermediaries in providing services related to the operation of the Internet and other digital networks, including communicating, hosting and caching activities, provided that the ISP does not modify the content in the process.

Persons with Perceptual Disabilities

The proposed amendments would expand the scope of the exception provision applicable to persons with perceptual disabilities by permitting non-profit organizations acting for the benefit of persons with a print disability to, subject to certain exceptions, make specially designed copies of a work and to send that work to non-profit organizations in other countries where that work will not be available, provided that the author of the work is Canadian.


The proposed amendments would expand the limited exception to infringement provisions applicable for educational institutions.

Works Not Commercially Available

The proposed amendments would create an expanded exception to the infringement of copyright provisions for education institutions to, for the purposes of education or training on its premises, reproduce a work provided that the work is not otherwise commercially available.

Distance Education

The proposed amendments would create a new exception to the infringement of copyright for an education institution to, subject to certain conditions: (1) disseminate over the Internet a "lesson" (i.e. all or part of a lesson, test, or examination") to students enrolled in a course provided by the educational institution; (2) for a student who has received such a lesson over the Internet to reproduce such a lesson in order to listen or view it at another time, provided that the copy is destroyed 30-days after the student receives their final grades and provided no TPM is circumvented in the process.

Digital Reproduction

The proposed amendments would also create a new exception to the infringement of copyright for an education institution that has a reprographic reproduction (i.e. photocopying) license with a collective society to, subject to certain conditions, make a digital reproduction of the paper form and to communicate that digital reproduction over the Internet, provided: (1) that the appropriate royalties are paid for the distribution of the digital work; (2) the education institution takes measures to prevent further communication of the digital work; and (3) the education institution takes measures to prevent students from printing more than one copy or the digital work and further communicating the digital work. The proposed amendments include detailed provisions governing the application of this exception.

Works Available Online

The proposed amendments would create a new exception to the infringement of copyright for an education institution who, for educational or training purposes, reproduces, communicates or performs in public a work that is available through the Internet, provided that: (1) such acts are made in respect of services offered to students; (2) the source of the work is cited by the educational institution; (3) the work is not protected by a TPM and the Internet site does not feature a notice prohibiting such acts; and (4) the work was made available online without the consent of the author.


The proposed amendments would also expand on the limited exception to infringement provisions applicable to libraries, archives, and museums (LAMs). In particular, the proposed amendments would create an exception to the infringement of copyright for LAMs in respect of photocopies made for patrons on the basis of research or private study. The amendments would require that the LAM limit the reproduction to a single work and require that the LAM inform the patron that the copy is only to be used for research or private study and that any other use may require authorization from the copyright owner.

While LAMs would be permitted under the proposed amendments to make digital copies for a requesting patron who made the request from another LAM, the providing LAM is required to take measures to prevent the printing of more than one copy, communicating the digital copy to another person, and using the digital copy for more than 5 business days from the request.


The proposed amendments would repeal the provision under the current regime, which provides that it is the person who commissions an engraving, photograph or portrait who is the first owner of copyright. The existing provision would be replaced with the general provision that provides that the author of a work is the first owner of copyright. The effect of this provision would bring engravings, photographs and portraits in line with other works under the Copyright Act.

About BLG

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
Check to state you have read and
agree to our Terms and Conditions

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.

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 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.


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.