Canada: The "Copyright Modernization Act" Becomes Law

On June 29, 2012, the Copyright Modernization Act received Royal Assent and became law, amending the Copyright Act (the "Act"). These amendments are the result of several attempts at copyright reform since Canada became a signatory in 1997 to the World Intellectual Property Organization ("WIPO") Copyright Treaty and WIPO Performance and Phonograms Treaty (together, the "WIPO Internet Treaties"). The amendments address a wide variety of issues, such as time and format shifting, the expansion of fair dealing, the protection of technological protection measures ("TPMs") such as "digital locks" and rights management information ("RMI") in compliance with the WIPO Internet Treaties, the non-commercial use of copyright works, and the liability of Internet service providers ("ISPs") and search engines for infringements.

Set out below is a brief description of the highlights of the amendments.

Implications for Copyright Owners

New Enablement Right

An amendment to section 27 creates a new cause of action called "enablement", allowing copyright owners to sue those who provide a service primarily for the purposes of enabling acts of copyright infringement, e.g., illegal peer-to-peer file sharing sites.

Prohibition of TPM Circumvention

New sections 41 to 41.27 implement the anti-circumvention provisions in the WIPO Internet Treaties respecting TPMs. Specifically, the Act now provides legal protection for TPMs by prohibiting, except under limited circumstances, the following:

  • the circumvention of TPMs (including "digital locks" such as passwords, encryption software, or access codes),
  • the offering of services to the public if the services are offered primarily for the purpose of circumventing TPMs, and
  • the manufacture, sale or distribution of devices that are primarily designed to circumvent TPMs.

Persons who circumvent TPMs in these ways in order to access or duplicate copyright material, even for personal use, are subject to civil remedies and criminal penalties (subsection 42(3.1)). The following is a list of legitimate "public interest" purposes for which the circumvention of TPMs is not prohibited (see sections 41.11 through 41.18):

  • law enforcement and national security activities,
  • reverse engineering for software compatibility,
  • security testing of systems,
  • encryption research,
  • personal information protection,
  • temporary recordings made by broadcast undertakings,
  • access for persons with perceptual disabilities, and
  • unlocking a wireless device.

New section 41.21 provides for the enactment of regulations to exclude certain TPMs from the application of these provisions where applying the provision "would unduly restrict competition in the aftermarket sector in which the technological measure is used" or to ensure access to other copyrighted materials after considering certain public interest factors.

Prohibition on Removing RMI

RMI, such as digital watermarks, identify copyright owners and key information relating to their works, and enable copyright owners to police the terms and conditions of copyright use and users to verify the authenticity of works. Section 41.22 prohibits the removal of RMI and subjects anyone who does so to civil remedies and criminal penalties.

New "Making Available" and "Distribution" Rights

Sections 15 and 18 now grant copyright owners and performers new "making available" and "distribution" rights in respect of their works and performers' performances, respectively. A copyright owner is granted the exclusive right "to make a work available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public". In addition, where a work is in the form of a tangible object, the copyright owner is granted the exclusive "distribution right" to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the copyright owner. Similarly, in the case of a performer's performance, the Act provides that a performer is granted the exclusive right to make available a sound recording of the applicable performance to the public by telecommunication in a way that permits members of the public to access it where and when they desire. If the performer's performance is fixed in a sound recording that is in the form of a tangible object, the performer also has the exclusive right to sell or otherwise transfer ownership of the sound recording and to authorize the same, if the ownership has never previously been transferred in or outside Canada with the authority of the owner of the performer's performance.

Implications for Artists

New Moral Rights for Performers

Sections 17.1 and 17.2 grant performers moral rights in their performances for a period of 50 years from the time of publication. Previously, under the Act, authors, but not performers, enjoyed such moral rights.

New Rights for Photographers

The Act now grants photographers the same authorship and ownership rights as other creators with the repealing of sections 10 and 13(2). Photographers will become the authors and therefore the first owners of copyright in their photographs, reversing the previous provisions of the Act which deemed the person who commissioned a photograph to be its first copyright owner. While a photographer, absent an agreement to the contrary, will now own the copyright in commissioned photographs, the person who commissions the photographs will be permitted to make private, non-commercial use of the commissioned photographs unless the contract with the photographer specifies otherwise.

Implications for Internet Intermediaries

Limited Liability for ISPs

New section 31.1 now expressly limits the liability for copyright infringement of ISPs when the ISP is acting solely as an intermediary in communication, hosting and caching activities. The ISP may not modify the material, other than for technical reasons, and may not interfere with the lawful use of technology to obtain data on how the material is used. In order for an ISP to ensure that it will not be held liable for copyright infringement, it must meet the requirements of the "notice-and-notice" regime described below. A claimant's only remedy against an ISP which fails to comply with the "notice-and-notice" regime is statutory damages in an amount between CDN$5,000 and CDN$10,000 per infringement as determined in the court's discretion.

Introduction of the "Notice-and-Notice" Regime

New sections 41.25 and 41.26 entitle a copyright owner to send a notice of claimed infringement, in prescribed form, to an ISP. The ISP is then obliged to forward the notice electronically "without delay" to the person allegedly infringing the copyright. The ISP must retain records on its network, for a prescribed period, which allow the identity and electronic location of the alleged infringer to be determined. However, the ISP is only obliged to reveal the identity of the alleged infringer pursuant to a court order. This requirement is different from a "notice and takedown" regime, such as that in the United States, which requires the ISP to immediately block access to the material on receipt of notice from the copyright owner with no court order.

Limited Liability for Search Engines

If a search engine, referred to as a "provider of an information location tool", is found to have infringed copyright, by either making a reproduction of the work or by communicating that reproduction to the public by telecommunication, the only remedy available to a copyright owner against the search engine is an injunction prohibiting further use of the copyrighted material by the search engine, provided that the search engine meets certain prescribed criteria designed to ensure that it is a legitimate business (see new section 41.27).

Implications for Users

New Exceptions for Consumers

The Act now provides consumers with the following additional exceptions to copyright infringement:

  • Format Shifting: subject to certain limitations, a consumer may reproduce legitimately acquired copyrighted works, such as music from CDs, for personal purposes on a digital medium or device, such as an MP3 player (see new section 29.22). For the purposes of the Act, a digital "medium or device" includes digital memory in which a work may be stored for the purpose of allowing the telecommunication of the work through the Internet. Reproductions are only permitted if no TPMs are circumvented, the reproduction is used for private non-commercial purposes and it is not given away.
  • Time Shifting: a consumer may fix a communication signal or record a program or performance for later listening or viewing as long as the program is received legally, no TPMs are circumvented, only one recording is made and held for a reasonable period of time, and the recording is held for private purposes only and not given away (see new section 29.23).
  • Backup Copying: a consumer, business or institution may create backup copies of legally acquired content for personal use in order to protect against damage or loss (see new section 29.24).

New Categories of Fair Dealing

The existing categories of "fair dealing" in the Act are expanded to include fair dealing for the purposes of education, parody, and satire under section 29.

Exception for Non-Commercial User-Generated Content

Dubbed by some as the "YouTube clause", new section 29.21 permits an individual to use a legitimately acquired existing copyrighted work as source material in the creation of a new work ("mash-ups", for example) in certain prescribed circumstances. This new work may be used or disseminated as long as:

  • the use of the work is solely for non-commercial purposes,
  • if reasonable in the circumstances, the source material is mentioned,
  • the individual had reasonable grounds to believe the source material was not infringing copyright, and
  • the use of the new work does not have a substantial adverse effect on the exploitation of the existing source material.

Reduced Penalties for Non-Commercial Copyright Violations

Penalties for copyright infringements that are for non-commercial purposes have been reduced under section 38.1. Previously, copyright owners could sue for statutory damages for copyright infringement, whether commercial or non-commercial, of CDN$500 to CDN$20,000 for each act of infringement. The statutory damages for non-commercial infringement have now been reduced significantly to a one-time payment of between CDN$100 and CDN$5,000 for all infringements that take place prior to commencement of legal action. No change has been made to the current statutory damages payable under the Act in the case of commercial infringements.

Implications for Educational Institutions

In addition to the new fair dealing exception for education mentioned above, the current references to specific technologies, such as flip charts and overhead projectors have been removed, from provisions of the Act relating to educational use of copyrighted works, in order to allow for new digital technologies (see section 29.4). A number of other changes relating to the educational use of copyright works have been introduced, including infringement exceptions for the following:

  • publicly available material on the Internet that has been legitimately posted for free use by copyright owners for educational purposes (see section 30.04),
  • the digital delivery of course materials, such as digital course "packs", subject to fair compensation to copyright owners (see sections 30.02 and 30.03),
  • the use of copyright material in online learning (see section 30.01), and
  • the ability of libraries to send digital interlibrary loans (see paragraph 30.1(1)(c)).

Additional Amendments

In addition to the above, the amendments also address the following matters, among others:

  • the creation of a new exception for broadcasters to permit them to copy music for their own operations (see section 30.9),
  • measures to enable activities of technology companies relating to reverse engineering for software interoperability and security testing and encryption research (see sections 30.61, 3.62, and 30.63), and
  • the establishment of a periodic "sunset" review of the Act every five years (see section 92).

The content of this article does not constitute legal advice and should not be relied on in that way. Specific 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.