As we noted in our post on July 3, the Copyright Modernization Act had received royal assent, but would not come into force until an Order-in-Council was issued. This has now happened: on November 7, 2012, most of the new provisions of, and amendments to, the Canadian Copyright Act came into force as a result of the publication in the Canada Gazette of Order SI/2012-85. The Order also specified that certain provisions, which relate to the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty, will come into force when those treaties are ratified by Canada.
A notable exclusion from the Order is the "Notice-and-Notice" regime (the future sections 41.25, 41.26 and 41.27(3) of the Copyright Act), which will only come into force after a consultation process and the establishment of regulations that will be needed to implement the regime. The Canadian "Notice-and-Notice" regime, which differs from the "Notice-and-Take-Down" rules in the United States, will oblige Internet Service Providers (ISPs), after being notified of infringement allegations by a rights holder, to notify the relevant subscriber of the allegations received. ISPs will also be required to retain records that would enable the identification of the subscriber allegedly engaged in the infringing activity for a period of six months (or one year, if infringement proceedings are commenced in respect of the claimed infringement within six months of the initial notice from the rights holder). Once the regulations are ready, the date when the "Notice-and-Notice" provisions come into force will be published in a separate Order-in-Council.
The new provisions that are now in force include the
- Protection of Digital Rights Management (DRM).
Also known as "technical protection measures" or, more
commonly as "digital locks", DRM is built into digital
music, DVDs, and other media and technology products to ensure that
they are not subject to unauthorized copying. The amendments
include anti-circumvention provisions that prohibit the removal or
tampering with DRM. The new provisions also prevent the removal of,
or tampering with, Rights Management Information, which is used to
identify the rights holders of an original work or to outline
restrictions on use of the copyrighted work.
- Reproduction for private purposes.
Provisions have been added to the Copyright Act to allow
individual Canadians to make copies of music and other copyrighted
material if the original copy is not an infringing copy, the
individual legally obtained the original copy other than by
borrowing it or renting it, and the individual owns or is
authorized to use the medium or device onto which the copy is
reproduced (such as a computer, iPod or MP3 player) and as long as
a digital lock is not picked in making the copy. The reproduction
may only be used for private purposes and cannot be given away,
sold or rented without first destroying all reproductions of the
original copy. In addition, these provisions do not apply if the
reproduction is made onto a medium that is governed by the private
copying provisions currently found at Part VIII of the
Copyright Act, such as CD-Rs.
- Education exemptions. Provisions have
been added to the Copyright Act tomake it legal for
students at schools and higher learning institutions to download
copyrighted information for the purpose of study and research. The
provisions permit schools to transmit materials used in classrooms
to students located off-campus to facilitate learning, as long as
the material is restricted to students. In addition, teachers
and students are allowed to use copyrighted material in lessons
conducted over the Internet. This applies both to teachers and
students in a physical classroom and those who may be viewing
recordings of the lessons over the Internet at a later time.
Teachers can also digitally deliver course content to students,
subject to fair compensation to copyright owners.
- Time-shifting provisions have been added which
finally legitimize the decades long practice of viewers making one
recording of communication signals or programs for private
purposes. The time-shifting recording must be obtained from a legal
source and used only for private purposes. As well, technical
protection measures could not be circumvented to make the
recording, and the recording cannot be kept "longer than is
reasonably necessary in order to listen to or view the program at a
more convenient time".
- Statutory damages for non-commercial infringement have
been lowered from the previous maximum of $20,000.00 for
infringement of each protected work, to a new maximum of $5,000.00
in respect of all infringements involved in the proceedings for all
works or other subject-matter. Moreover, if a plaintiff
elects statutory damages for non-commercial infringements, it will
be barred from collecting statutory damages from that defendant for
any other non-commercial infringements occurring before the
proceeding began, and no other copyright owner may elect statutory
damages against that defendant for non-commercial infringements
that were done before the initiation of the proceedings in which
statutory damages were elected.
- Expanded fair dealing exceptions. Fair
dealing, which permits use of a copyrighted work without permission
of the copyright owner, has been expanded to include uses for the
purposes of education, parody or satire in addition to prior fair
use exemptions such as use for research or private study.
While procedurally, a defendant is required to prove that his
or her dealing with a work has been fair, the Supreme Court of
Canada has noted (most recently inAlberta (Minister of Education) v.
Canadian Copyright Licensing Agency, which we wrote about
here) that a fair dealing exception is a user's right, and
should not be interpreted restrictively.
- A new non-commercial "mash-up" exemption, exempting from copyright infringement the use of pre-existing works to create new non-commercial works, defined as "user-generated content". This exemption is only available if the use of the copyrighted work is done solely for non-commercial purposes and does not have a substantial adverse effect (financial or otherwise) on the exploitation of the existing work (including that the new work isn't a substitute for the existing one), and provided that the individual making the new work reasonably believes that the source material is not itself infringing copyright and that there is a mention (if it is reasonable in the circumstances) of the sources of the works incorporated in the new work.
- Also effective November 7, 2012, engravers, photographers and portraitists will be the default owners of copyright in the engravings, photographs and portraits they create on commission, unless there is an agreement to the contrary. This is the result of the repeal of section 13(2) of the Copyright Act, which provided that a person who commissions an engraving, photograph or portrait is the first owner of copyright of those types of works.
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.