The majority of the provisions of Canada's
Copyright Modernization Act (the "CMA")
entered into force today, November 7. Let's take a
look at three issues related to "data
governance": Technological Protection Measures (TPMs),
ISP liability, and private copying.
TPMs, or "digital locks", are technologies, devices or
components that provide protection or copyright materials
through either access control or copy control. Three types of
protection for TPMs are introduced under the CMA, prohibiting:
circumvention of access‐control TPMs;
offering circumvention services to the public; and
manufacturing, importing, distributing, selling, renting or
providing devices, technologies or components whose primary purpose
"Digital locks" enable copyright holders to dictate
how their material may be used. Under the CMA amendments,
however, these locks may ultimately disallow activities that
the Copyright Act deems to be non‐infringing. This
could occur, for example, where a person circumvents a TPM to
access a work for a purpose that falls under "fair
dealing", or to change the format of a TPM-protected song
purchased on a CD to an MP3 to be played on another device. Both of
these examples (fair dealing, transfer of format) are
non‐infringing uses because specific exceptions apply to
them. They would nonetheless be prohibited where the work is
protected by an access‐control TPM.
There are certain limited instances where circumventing an
access‐control TPM will not infringe copyright, including
circumvention for the purposes of software interoperability,
encryption research, network security, and for unlocking a wireless
device (jailbreaking a cellphone). The government may enact
regulations adding to the above list of exceptions.
Liability and Responsibility of Internet Service Providers
The Supreme Court of Canada has held that ISPs do
not participate in the copyright infringement of their users
(see SOCAN v. CAIP, 2004 SCC 45 ) . If they merely
provide "passive connections" for content, and if acting
solely as intermediaries for their users and subscribers, ISPs are
generally not liable for infringing content.
The amendments effectively codify this approach to ISP
liability. They grant exceptions for "providing services
related to the operation of the Internet or another digital
network", for caching and other similar incidental acts, and
for hosting. This will restrict liability, for example, in
the area of cloud computing. Some exceptions are also provided for
search engines or "information location tools".
Notwithstanding the limits on liability of ISPs and online
service providers, however, ISPs and others who knowingly enable
copyright infringement can be held civilly or criminally liable for
Moreover, a "notice and notice" regime will apply:
where a copyright holder provides notice to an ISP of potential
infringement by an ISP's subscriber, the ISP will
be required to forward notice "without delay" to
that user, and to maintain records of the user's activity for
six months (or one year if proceedings are commenced). This
largely codifies current industry practice, however the government
has delayed entry into force of the legislated"notice and
notice" regime until it has conducted further consultations
with stakeholders, and enacted related Regulations.
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about your specific circumstances.
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