2012 was a very important year for Canadian copyright law. By a
wide margin, the two most significant developments of the year were
the passing and coming-into-force of the Copyright Modernization
Act, and the release of the Supreme Court of Canada's decisions
in five copyright appeals, known as the "copyright
Copyright Modernization Act
On June 29, 2012, Bill C-11 (the
Copyright Modernization Act) received royal assent, ending
years of tumultuous debate in Canada as to how our copyright laws
should be updated to deal with advancing technologies and
international treaty obligations.
Most of the amendments were proclaimed into force on Nov. 7,
Key areas of reform include:
The circumvention of technological protection measures used by
rights holders to secure and control their digital content is now
prohibited, whether by dealing in circumvention technologies
themselves or by providing circumvention services to others.
It is now an infringement for anyone to provide a service over
the Internet 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 actual or constructive knowledge of such
The permitted fair dealing purposes have been expanded beyond
research, private study, criticism, review and news reporting to
now include education, parody and satire. Dealings with works for
these new purposes must still be "fair" in all the
Educational institutions have also been provided with specific
new rights and exemptions relating to their use of digital
technologies for educational or training purposes.
Non-commercial Use Exceptions
The right to reproduce works for private purposes has been
expanded, including for time-shifting and back-up purposes, all
subject to certain limitations.
Individuals are also now permitted to incorporate works into
their user-generated content for non-commercial purposes (again,
subject to certain limitations). This is sometimes referred to as
the "YouTube" exception to infringement.
Notice and Notice Provisions
Internet service providers (ISPs) and Internet search engines
will have limited liability for copyright infringements committed
by their subscribers when they comply with a prescribed
"notice and notice" regime. These provisions have yet to
be proclaimed into force as regulations associated with the new
regime are being finalized.
THE SUPREME COURT OF CANADA'S COPYRIGHT PENTALOGY
In December 2011, the Supreme Court of Canada heard appeals in
five cases originating before the Copyright Board. It released its
decisions in all five appeals on July 12, 2012.
Delivery of musical works via the internet constitutes a
communication of those works "to the public,"
notwithstanding that streaming services are point-to-point
transmissions between providers and consumers. Content
intentionally made available to anyone who wants to access it is
communicated "to the public," even if users access the
work at different times and places.
Providing permanent copies of works to consumers through online
downloading services is not a "communication" of the work
by telecommunication. The word "communicate" in this
context connotes an act akin to a public performance or broadcast.
In contrast, a download transmits a permanent copy of a work to a
consumer akin to the physical delivery of a physical product.
The Court unanimously confirmed that providing short previews of
musical works to consumers to aid their purchasing decisions
constitutes fair dealing for the purpose of "research,"
absent evidence that such previews negatively impact music sales.
The Court confirmed that the term "research" should be
given a generous interpretation in the context of the defence of
Photocopies made by teachers, on their own initiative, to
distribute to students as part of class instruction, can qualify as
fair dealing for research or "private study" under the
Copyright Act. Instructing teachers share a "symbiotic
purpose" with the student/user who is engaged in research or
A sound recording that is part of a soundtrack cannot be the
subject of a tariff under Section 19 of the Copyright Act when the
recording accompanies a cinematographic work.
It will be interesting to observe, in 2013 and beyond, whether
and how the Supreme Court of Canada's reasoning in these five
appeals will be applied in future cases in light of the
comprehensive amendments to the Copyright Act more recently
proclaimed into law.
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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