Canada: Copyright To Be The Focus Of Attention In Fall 2011

As a result of upcoming legislative reform and five appeals to be heard by the Supreme Court of Canada, copyright will be in the spotlight in Canada until the end of 2011.

Bill C-11: An Act to Amend the Copyright Act. On September 29, 2011, the Government of Canada introduced Bill C-11, also titled the Copyright Modernization Act.

Bill C-11 is the fourth attempt in recent years to update the Copyright Act. Previous attempts, the most recent being Bill C-32 in 2010, could not be passed before the dissolution of Parliament as a result of the calling of an election. However, the Government's majority in the current Parliament should ensure that the Bill passes into law before the end of 2011.

According to the Bill's summary, the goals of Bill C-11 are the following:

  1. update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards;
  2. clarify Internet service providers' liability and make the enabling of online copyright infringement itself an infringement of copyright;
  3. permit businesses, educators and libraries to make greater use of copyright material in digital form;
  4. allow educators and students to make greater use of copyright material;
  5. permit certain uses of copyright material by consumers;
  6. give photographers the same rights as other creators;
  7. ensure that it remains technologically neutral; and
  8. mandate its review by Parliament every five years.

One of the key and more controversial aspects of Bill C-11 is a scheme for dealing with technological protection measures used by rights holders to secure and control their digital content. An example of such technological protection measures is regional locks on DVDs. Bill C-11 would prohibit both the circumvention of such protection measures and the provision of circumvention services to others.

With respect to Internet service providers (ISPs), Bill C-11 adopts essentially a contributory infringement scheme and a notice-and-notice system with the intention to assist rights holders in addressing online infringement. To avoid liability, ISPs would be obliged to forward written notices of infringement they receive from a copyright holder to the alleged infringer and to retain records relating to the identity of the alleged infringer.

Bill C-11 also provides some clarity to exceptions for infringement by expanding "fair dealing" categories to include parody, satire and education in addition to the existing categories of research, review, news reporting, criticism and private study.

There are also provisions that deal with making copies for private purposes (e.g., time-shifting, making back-up copies and non-commercial use in user-generated content). Provisions dealing with statutory damages have also been amended to reduce the statutory damages for infringement for non-commercial purposes.

A complete discussion of Bill C-32, a predecessor that is virtually identical to Bill C-11, can be found in the Autumn 2010 issue of IP Perspectives.

The status and the full text of Bill C-11 are available at

Upcoming Supreme Court of Canada cases. Meanwhile, in an unprecedented development, five copyright appeals are scheduled to be heard in the Supreme Court of Canada in December 2011.

Two of these appeals, namely SOCAN v. Bell Canada, et al. (#33800) and Province of Alberta as represented by the Minister of Education, et al. v. Canadian Copyright Licensing Agency Operating as "Access Copyright"(#33888), relate to the "fair dealing" exception to copyright infringement. The Copyright Act currently provides that any "fair dealing" with a work for purposes of private study or research, or for criticism, review or news reporting is not infringement.

The Supreme Court will decide whether 30-second "previews" of music clips fall within the "research" category of fair dealing and whether photocopying of excerpts from textbooks for use in a classroom constitutes fair dealing. As noted above, the existing categories of fair dealing include research and private study but additional categories, including education, will be introduced under Bill C-11.

Two of the Supreme Court appeals relate to the definition of "copyright" under paragraph 3(1)(f) of the current Copyright Act, which is not to be amended by Bill C-11. Paragraph 3(1)(f) of the Copyright Act provides:

3. (1) For the purposes of this Act, "copyright", in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right


(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication

In Entertainment Software Association et al. v. SOCAN (#33921), the Supreme Court will consider whether a download of a video game that includes copyrighted music is a communication of that music "to the public by telecommunication." Similarly, the Supreme Court will also consider in Rogers Communications Inc. et al. v. SOCAN (#33922) whether paragraph 3(1)(f) covers ISPs providing consumers access to websites where consumers can download or stream copyrighted music.

In the final copyright appeal to be heard in 2011, namely Re: Sound v. Motion Picture Theatre Associations of Canada, et al. (#34210), the Supreme Court will consider whether copyright holders should be compensated when their copyrighted music work is communicated to the public as part of a movie shown in theatres or as part of a television program.

As a result of legislative reform and an unprecedented quintet of copyright appeals to be heard by the Supreme Court of Canada, significant changes to copyright law in Canada will likely be in place very soon.

The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.

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