Canada: Canadian Government Proposes Amendments To Copyright Act

On the morning of June 12, 2008, Minister of Industry Jim Prentice tabled Bill C-61, An Act to Amend the Copyright Act (the Bill). Revisions to the Copyright Act have been the focus of intensive discussions between stakeholders for a number of years and were originally scheduled to be tabled in December 2007, after the Conservative government declared a desire to improve the protection of cultural and intellectual property rights in Canada. While Bill C-61 has finally been introduced after months of delays, no date for second reading has been set and there is no guarantee that the Bill will become law prior to the next election.

The "Made-in-Canada" approach, as it has been labelled by Mr. Prentice, seeks to ensure that Canada is in compliance with the World Intellectual Property Organization Copyright Treaty adopted in 1996, and includes many new changes, some of which include:

  • Protection of Digital Rights Management (DRM) technology. Also known as "Technical Protection Measures", DRM is designed to be built into digital music, DVDs, and other media and technology products to ensure that they are not subject to unauthorized copying. The proposed amendments include anti-circumvention provisions, which prohibit the removal or tampering with DRM technology. Bill C-61 also offers protection for Rights Management Information (RMI), which is used to identify the rights holders of original works or to outline restrictions on use of copyright works. The Bill would prevent the removal of, or tampering with, RMI.

  • A fine of $500 for individuals caught downloading copyright files, provided that technological protection measures or digital locks were not circumvented in the process. The $500 fine would be the maximum statutory amount that could be awarded against individuals for private use infringements, though infringements for non-private purposes, such as posting music on peer-to-peer sites would still result in the current range of statutory damages of between $500 and $20,000 per work.

  • A "Notice and Notice" regime for ISPs, whereby ISPs, after being notified of infringement allegations by a rights holder, would be obligated to notify the relevant subscriber of the allegations received. ISPs would also obliged to retain records that would enable the identification of the subscriber allegedly engaged in the infringing activity for a period of six months.

  • New rights and protections for rights holders include the "making available" right, which would extend to performers and producers. In addition, a "moral right" would allow performers to prevent distortions of their performances.

  • "Private copying of music" provisions would allow individuals to make one copy of music accessed legally for each device owned (including computers and MP3 players) in .wav, .mp3 or other formats. The copy would only be permitted for personal use, and could not be given away, sold, performed or otherwise communicated in public. These provisions would not override terms of a contract governing the extent to which an individual would be able to make copies of a song that had been downloaded from the Internet. In addition, these provisions would not apply if the reproduction was 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 would make it legal for students at schools and institutions of higher learning to download copyright information for the purposes of study and research. Schools would also be allowed to transmit materials used in classrooms to students located off-campus to facilitate learning so long as the material was restricted to students.

  • Time-shifting provisions would allow for the making of one copy of television or radio programs for private purposes. The time-shifting recording would have to be obtained from a legal source and could not be given away, sold, distributed, performed or otherwise communicated in public. As well, technical protection measures could not be circumvented to create the recording, and the recording could not be kept "longer than necessary in order to listen to or watch the program at a more convenient time".

The above is just a summary of some of the provisions found in Bill C-61. As mentioned above, there is no guarantee that the Bill will ever become law. Stikeman Elliott will continue to monitor any developments and will provide further updates where appropriate.

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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