Canada: Copyright Year In Review, 2011

Introduction

Last year was a busy time for Canadian copyright law. The Copyright Modernization Act was reintroduced by Parliament; the Supreme Court of Canada heard arguments in five copyright appeals; several notable decisions were released by our lower courts; and Canada signed on to a new trade agreement to deal with piracy and counterfeiting.

Bill C-11 (Copyright Modernization Act)

On September 29, 2011, Parliament (now under the control of a Conservative majority) introduced Bill C-11, the proposed Copyright Modernization Act. Bill C-11 is effectively identical to prior Bill C-32, which died on the order paper when a federal election was called in March 2011. Highlights of proposed Bill C-11 include:

  • Prohibitions against the circumvention of technological protection measures (also known as "digital locks") and the offering of devices or services that effect such circumvention.
  • Limitation of liability for Internet service providers (ISPs) and search engines for infringements by their subscribers, by imposing upon the ISPs and search engines a "notice and notice" scheme for responding to infringement complaints. The scheme would require ISPs and search engines, upon receipt of an infringement complaint, to forward it to the allegedly infringing subscriber and to keep records as to the subscriber's identity for a period of time.
  • Prohibitions against providing services over the Internet that are designed to enable acts of copyright infringement.
  • The expansion of fair dealing purposes to include education, parody and satire.
  • Various non-commercial use exceptions that would authorize reproductions in limited circumstances for private purposes, for time-shifting (a copy created to be heard or viewed at a later time), to create back-up copies and to create user-generated content.

Bill C-11 was introduced for second reading in October 2011 and is expected to pass, in some form, sometime in 2012.

The Supreme Court of Canada's Copyright Pentology

On December 6 and 7, 2011, the Supreme Court of Canada heard appeals in five cases originating before the Copyright Board. The Court is expected to release its decisions in these cases in 2012. The following is a brief summary of the issues raised in each case.

(1) Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada

(2) Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada

Consent of the copyright owner is needed to communicate a work "to the public" by telecommunication. In Rogers Communications, the Copyright Board held that when a music file is downloaded from an Internet server to an individual computer it constitutes a communication of the work "to the public" by telecommunication, and thus requires payment of a copyright tariff. The Federal Court of Appeal agreed. The Appellants (Rogers and other ISPs) argue that such downloads amount to private communications and not communications to the public.

Related issues are raised in Entertainment Software, although in the context of downloading video games that contain musical works.

(3) Society of Composers, Authors and Music Publishers of Canada v. Bell Canada et. al.

At issue in this case is whether short "previews" of musical works offered for free to consumers on various commercial Internet sites amount to fair dealing for the purpose of "research," and thus do not require payment of a copyright tariff. This case will help determine the extent to which "research" can be commercial in nature yet protected by fair dealing. Both the Board and the Federal Court of Appeal concluded that such previews amount to fair dealing for the purpose of research.

(4) Alberta (Minister of Education) v. Access Copyright

The Supreme Court of Canada will consider whether educators should be required to pay copyright tariffs to reproduce works for students, who do not request that such copies be made, for classroom research, private study, review or criticism. Ministers of Education argue that such conduct falls under the concept of fair dealing or other exceptions under the Copyright Act.

(5) Re: Sound v. Motion Picture Theatre Associations of Canada

Finally, the Supreme Court of Canada will decide whether equitable remuneration is required to be paid when a published sound recording forms part of the soundtrack that accompanies a motion picture or television program. The Board and the Federal Court of Appeal held that remuneration is not required because a "sound recording" is defined under the Copyright Act to exclude motion picture soundtracks.

Other Notable Cases and Issues

Crookes v. Newton, 2011 SCC 47

The Supreme Court of Canada affirmed that merely providing a hyperlink to a second website does not by itself constitute a publication of the content of the second website. Although this case was decided in the context of a defamation claim, it may impact how future courts in Canada approach the issue of hyperlinking in a copyright context.

Cogeco Cable Inc. v. Bell Canada, 2011 FCA 64 (leave to appeal to SCC granted)

A majority of the Federal Court of Appeal held that the Canadian Radio-television Telecommunications Commission has jurisdiction to implement a "value for signal" regime under the Broadcasting Act to permit private local television stations to negotiate with cable television service providers for compensation to retransmit their signals.

Voltage Pictures LLC v. Jane Doe and John Doe, 2011 FC 1024

The Federal Court granted a motion to compel ISPs to disclose customer names and particulars so that they may be added as defendants to the copyright infringement action.

Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196

An Internet real estate search tool called "Zoocasa" was found to have violated the unilateral "Terms of Use" contained on a Century 21 website and also to have infringed certain copyrights by copying a substantial portion of real estate listings on the Century 21 site. The trial judge's decision contains an interesting analysis of both contract law and copyright law in the Internet context.

Anti-Counterfeiting Trade Agreement (ACTA)

On October 1, 2011, Canada joined the growing list of countries to have signed the ACTA, the purpose of which is to establish a more efficient international framework to combat copyright and trade-mark counterfeiting and pirating. The Federal government has stated that current Bill C-11 informed and guided its approach to entering this trade agreement.

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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