Canada: The Copyright Modernization Act: Canada’s New Rights And Rules - November 2012

Last Updated: November 20 2012
Article by Robert D. McDonald and Margot E. Patterson


Following years of attention and debate over issues such as "digital locks", "users' rights" and whether and how Canada is keeping up with other countries in protecting copyright, Canada's Copyright Modernization Act (the "CMA") entered into force on November 7, 2012.

Rapid advances in the use of digital media to access, use, share, and copy works led to increased pressure to overhaul Canada's copyright legislation, which had not been significantly revised since the last general amendments in 1997. Over the years, the government conducted various stakeholder consultations and put forward four separate bills, all with the intention of better aligning Canada's legislation with the international standards set forth in two 1996 World Intellectual Property Organization (WIPO) treaties, and with the evolving digital environment.

The CMA is an attempt to balance the policy concerns of increasing innovation and competition against creators' needs to protect their works. How best to achieve this balance has always been one of copyright's most fundamental issues.

In this article, we explore a number of the key amendments and their potential impact on creators and users of music, audiovisual, print, artistic, and other works.


The preamble to the Copyright Modernization Act states that the amendments are intended to:

a) 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;

b) clarify Internet service providers' liability and make the enabling of online copyright infringement itself an infringement of copyright;

c) permit businesses, educators and libraries to make greater use of copyright material in digital form;

d) allow educators and students to make greater use of copyright material;

e) permit certain uses of copyright material by consumers;

f) give photographers the same rights as other creators;

g) ensure that it remains technologically neutral; and

h) mandate its review by Parliament every five years.

Those affected by these amendments include authors, performers, recording companies, film studios and gaming companies, internet service providers, consumers, and any business that relies on the Internet and digital content to operate and to reach its partners and customers.

General Amendments Technological Protection Measures (TPMs)

TPMs, or "digital locks", are technologies, devices or components that provide protection for copyright materials through either access control or copy control.

Three types of protection for TPMs are introduced, prohibiting:

  • circumvention of accesscontrol TPMs;
  • offering circumvention services to the public; and,
  • manufacturing, importing, distributing, selling, renting or providing devices, technologies or components whose primary purpose is circumvention.

"Digital locks" enable copyright holders to dictate how their material may be used. Under the amendments, however, these locks may ultimately disallow activities that the Copyright Act deems to be noninfringing. 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 noninfringing uses because specific exceptions apply to them. They would nonetheless be prohibited where the work is protected by an accesscontrol TPM.

There are certain limited instances where circumventing an accesscontrol TPM will not infringe copyright, including circumvention for the purposes of software interoperability, encryption research, network security, and for unlocking a wireless device. The government may enact regulations adding to the above list of exceptions.

Internet Service Providers (ISPs)

Current Canadian case law has held that ISPs are generally not liable for copyright infringement provided that they are merely acting as intermediaries between their users and subscribers.

The Copyright Modernization Act confirms this approach stating that an ISP does not infringe copyright simply by providing the means for telecommunication and reproduction. This exception applies to any situation where an ISP is acting solely as an intermediary in communication, hosting and caching activities.

However, an ISP may still be civilly or criminally liable if it knowingly enables copyright infringement. Also it must comply with the new "notice and notice" regime introduced by the CMA in order to ensure that it cannot be liable for infringement. Under the "notice and notice" regime, a copyright holder may send the ISP a written notice claiming infringement, and upon receipt, the ISP must forward that notice "without delay" to the alleged infringer. The ISP must then retain records for a prescribed period which would allow for the identity and location of the alleged infringer to be determined. There are similar limitations of liability introduced in respect of search engines as "provider[s] of an information location tool."

The implementation of the "notice and notice" regime will be delayed, as those sections of the CMA will come into force following further industry and stakeholder consultation.

Expanded "Fair Dealing"

Fair dealing has been interpreted by the Supreme Court of Canada as being "an integral part of the Copyright Act ... In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively." Activities that would normally constitute copyright infringement are saved if the use (i) is "fair", as determined under a judicial sixstep test, and (ii) falls within certain purposes, including research and private study, criticism and review and news reporting.

In a recent highprofile decision, SOCAN v. Bell Canada, the Supreme Court of Canada confirmed that the 30second previews provided by iTunes and other online music services to allow customers to "try before they buy" are an acceptable form of fair dealing for the purpose of research. That finding was based on the fact that the consumers were using previews "to help them research and identify musical works for online purchase", and for no other purpose.

Under the Copyright Modernization Act provisions, satire, parody and education are now also added as accepted "fair dealing" purposes. This can be expected to legitimize many widespread creative, entertainment and social commentary activities. Many latenight television comedy shows, morning radio shows, and print and online publishers rely on parodies and satires of creative works to develop their own material. Canadian courts will likely look to the American jurisprudence in interpreting the meaning of satire and parody, as U.S. copyright law has long included these uses in its parallel concept of "fair use".

UserGenerated Content

Users are permitted to create their own content by combining or using existing copyright material. The colloquially known "YouTube Clause" allows users to create a "mashup" of clips as a new work, or add music to a personal video, without infringing copyright. This exception is subject to certain conditions: noncommercial purpose; mention of the source (where reasonable); the individual's belief that the source material was noninfringing; and the absence of any "substantial adverse impact" on the copyright holder's exploitation of his or her work.

Despite these conditions, some copyright owners are concerned that the amendment will compromise their rights online. Among other things, they fear that the meaning and scope of some of the conditions remain unclear: what is a "new work" or a "substantial adverse impact"?

Copying for Private Purposes

The Copyright Modernization Act introduces several exceptions which make certain types of copying for private purposes lawful. Notably, the CMA provides that it is not an infringement of copyright to reproduce a work into another format (format shifting), to reproduce a work for later listening or viewing (time shifting), or to reproduce a work for backup purposes. This is a significant change from Canada's previous legislation which prohibited such reproduction despite widespread usage among the consuming public.

However, these exceptions are only available if certain conditions are met: the source material must not itself be infringing, it must have been legally obtained (and not rented or borrowed), and a Technological Protection Measure (TPM) must not have been circumvented. Further, the copy must not be given away, sold or rented. An interesting limitation on the time shifting exception is that the individual may only keep the recording "no longer than is reasonably necessary in order to listen to or view the program at a more convenient time."

Statutory Damages

The Copyright Modernization Act significantly revises the penalties for noncommercial copyright infringement. Under the prior legislation, copyright owners could elect to sue for statutory damages for copyright infringement. Those legislated statutory damages were set at between $500 and $20,000 for each act of infringement, regardless of whether the infringement was commercial or noncommercial.

The new CMA reduces statutory damages to a range of between $100 and $5,000 where the copyright infringement relates to an individual who has infringed copyright for private use.

Further, these statutory damages are a one time payment for all infringements. Statutory damages for infringement for commercial purposes remain at between $500 and $20,000 for each work infringed.

Impacts on Key Stakeholders Performers and Sound Recording Makers

1. Making Works Available Online

Under the Copyright Modernization Act, performers and record labels have an exclusive "making available right", to allow them to control the release of their performances and sound recordings online.

Practically speaking, this means that artists can better control sharing of their works over peertopeer networks, and can prevent a retailer from releasing material online in advance of an official release date, among other things. To enforce the "making available" right, a copyright collective must file a tariff (a licence proposal) with the Copyright Board of Canada for certification.

The Supreme Court of Canada recently determined that - as in the United States - downloads do not infringe the right to communicate a work to the public. However, the new "making available right" was not part of that case. Now that the right is in effect, the individual transmission of works to consumers will infringe copyright and be compensable.

2. Moral Rights

Authors and composers have long held "moral rights" in their work. These rights are extended to performers, for performances occurring after the related amendments come into force.

Moral rights include the right to the integrity of the work (the performance), including the right not to have the work associated with a service or product where that would prejudice the performer's reputation. Moral rights also include the right to be associated with the performance by name or to remain anonymous; this right applies "if it is reasonable in the circumstances". Moral rights may not be assigned, but may be waived in whole or in part. Moreover, an assignment of copyright in a performance does not by itself constitute a waiver of any moral rights.

Waivers of performers' moral rights introduce some new requirements for those dealing with copyrighted works. Standard agreements relating to performers' rights now require revision to ensure that the performer's waiver is addressed. Perhaps more challenging will be obtaining waivers where large groups of musicians perform, since the waiver is individual to the performer.

3. Term of Protection

The term of copyright protection for sound recordings for performers and sound recording makers is extended to 50 years after publication of the musical performance. Previously, the clock started ticking on these rights upon fixation of the recording, even before it had been published. Performers' moral rights now extend to 50 years after publication, or 50 years after the end of the calendar year in which the performance occurred.


The practical impact of the Bill C11 amendments remains to be explored in commercial interactions among creators and users, and before the courts. Many of the new provisions are controversial. However, they do address a number of previous inconsistencies in Canadian copyright law, and take muchneeded steps forward to align the law with international standards and the rapidly changing digital age.

About Fraser Milner Casgrain LLP (FMC)

FMC is one of Canada's leading business and litigation law firms with more than 500 lawyers in six full-service offices located in the country's key business centres. We focus on providing outstanding service and value to our clients, and we strive to excel as a workplace of choice for our people. Regardless of where you choose to do business in Canada, our strong team of professionals possess knowledge and expertise on regional, national and cross-border matters. FMC's well-earned reputation for consistently delivering the highest quality legal services and counsel to our clients is complemented by an ongoing commitment to diversity and inclusion to broaden our insight and perspective on our clients' needs. Visit:

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.

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
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 you may opt out by clicking here

    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.

    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.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    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.

    By clicking Register you state you have read and agree to our Terms and Conditions