On 29 June, 2012, Bill C-11 "An Act to Amend the Copyright
Act" (also known as the Copyright Modernization Act) received
Royal Assent. The passage of this Bill into law ends many years of
tumultuous debate in Canada on how our copyright legislation should
be updated to deal with advancing technologies, the balancing of
rights as between creators and users and certain of our
country's international treaty obligations.
The Canadian Copyright Act has not been amended substantially
since 1997. A number of prior proposed amending bills had been
tabled since 1997, but each had died before being passed into
The amendments that have now received Royal Assent are
wide-ranging. Key areas of reform include:
The Copyright Act will now prohibit the circumvention of
technological protection measures used by rights-holders to secure
and control their digital content, whether by dealing in
circumvention technologies themselves or by providing circumvention
services to others.
Notice and Notice Provisions and Service over the Internet
ISPs and Internet search-engines will now only have limited
liability for copyright infringements committed by their
subscribers, when the ISPs and search-engines comply with a
"notice and notice" scheme set out in the new
legislation. Upon discovering infringements of their rights,
copyright owners are entitled to send a notice of claimed
infringement to an ISP or search-engine, who will in turn be
obliged to forward it to the alleged infringer identified in the
notice. The ISP or search-engine will also be required to retain
records relating to the alleged infringer's identity for a
period of time. The copyright owner will be required to obtain a
court order before obtaining such identity information from the ISP
The Copyright Act will now also make 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 permitted fair dealing purposes have now also been expanded
under the Copyright Act to include education, parody or satire.
Dealings with works for these purposes must still be
"fair" in all the circumstances.
The Copyright Act will also provide a number of new rights
and exemptions relating to educational institutions and the use of
digital technologies for educational or training purposes.
Non-commercial Use Exceptions
The right to reproduce works for private purposes has been
expanded. Specifically, individuals will now be permitted to make
copies of a work for private purposes, provided that the original
work being copied is a legally-owned copy, technological protection
measures are not circumvented to create the copy, the copy is not
given away and certain other conditions are also met.
Time shifting (making a copy for the purpose of viewing or
listening at a later time) is also now expressly
permitted, subject again to limitations, including that the
recording is used only for private purposes and is not kept
longer than reasonably necessary.
Making backup copies of a work will also be permitted, subject
to certain limitations including that technological protection
measures are not circumvented.
Individuals are also given the right to
use existing copyright works in the creation of new
user-generated content, provided broadly speaking that this is done
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 exploitation of
the original work.
The new Copyright Act also limits the amount of damages that a
copyright owner may recover against an infringer in the case of
infringement occurring for non-commercial purposes.
The reforms accomplished by Bill C-11 do not take immediate
effect. They will come into force on a day or days to be fixed by
order of the Governor in Council.
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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Given that many Canadian Internet web sites do receive U.S. visitors and many also utilize a DMCA safe-harbour provision, understanding the scope of protection that the safe harbour provides can be important to Canadians.
ICANN (the entity that essentially controls the worldwide domain name system) is in the final stages of processing approximately 1,900 applications for new gTLDs (generic Top Level Domains – like ".com") many of which are expected to come online in 2013.
In this case, Apotex claimed damages pursuant to s. 8 of the NOC Regulations, and Pfizer alleged that Apotex should not be entitled to damages, due to the principles of ex turpi causa relating to its alleged infringement of the relevant patent.