After much anticipation, the federal government released Bill C-61, An Act to Amend the Copyright Act. The Bill would amend the Copyright Act in order to implement the World Intellectual Property Organization Copyright Treaty (WCT) and Performances and Phonograms Treaty (WPPT), create exceptions for certain uses of copyright material for private purposes, create exceptions for Internet service providers (ISPs) and permit certain uses for educational and research purposes of Internet and other digital technologies.
Implementation of WCT and WPPT
(a) Making Available
The Bill contains a making available right that applies to sound recordings. There is no express enactment of a making available right for works such as music, computer programs, books and films. In briefing documents accompanying the , the government stated that this right already exists in Canadian law for works.
(b) Protection of Technological Protection Measures (TPMs)
The Bill contains legal protection against the circumvention of technological measures. It includes both provisions against circumvention of access control TPMs and against trafficking in access control and copy control TPMs. It contains generally accepted exceptions to the prohibitions on circumvention to allow for reverse engineering, security testing and encryption research, creating interoperable computer programs, enabling persons with perceptual disabilities to access materials, and enabling consumers to protect their personal information.
The Bill creates remedies for the circumvention of access control TPMs including injunctive relief, damages and statutory damages of up to $20,000. However, statutory damages are available only if the purpose of the circumvention is to enable infringement.
(c) Distribution and Performers' Rights
The Bill contains a number of other provisions designed to implement the WPPT and WCT:
- a distribution right to allow owners of works to control
the distribution of tangible copies of copyright works, which
provides control over the first sale of a medium such as a CD
- an extension of the term of protection for producers and
performers of sound recordings to 50 years after the
publication of the recording;
- a reproduction right for performers to authorize the
direct and indirect reproduction of their performances by,
for example, broadcasters, consumers and record producers;
- a moral rights provision for performers.
Exceptions for Private Uses of Copyright Material and Remedies for Violations
The Bill contains a number of exceptions for private-non-commercial use:
(a) Private Use of Music Exception
(b) Time-Shifting Exception
The Bill will permit individuals to make a single recording of a television or radio program, including on-demand programs, cable and satellite programs, and programs aired simultaneously on the Internet and TV or radio. No further copies can be made, and time-shifted copies cannot be sold, distributed or performed in public. The Bill would also prohibit individuals from creating libraries of digital copies for subsequent viewing. Individuals could keep the recording no longer than necessary in order to listen to or watch the program at a more convenient time.
(c) Format-Shifting Exception
The new provisions respecting format-shifting allow users to make one copy of content they own for each device (e.g., a copy of a videocassette onto a DVD for use in a home device). The copies must be made for private purposes and cannot be given or sold to someone else. If the user sells or gives away the original, they must destroy all copies that they have made. The provision is restricted to content in certain formats, specifically books, periodicals, newspapers, photographs and videocassettes.
(d) Statutory Damages Amendments
The Bill would substantially reduce the potential liability of individuals who infringe copyright for private, non-commercial purposes to a maximum fine of $500 for all infringements involved in the suit, regardless of the number of copies made, the number of different works copied or the number of owners who pursue claims against the individual. Commercial infringers could still be liable for up to $20,000 in damages for each work infringed (e.g., posting music using the Internet or peer-to-peer [P2P] technology).
In all cases, the court would retain the power to award damages including punitive damages to ensure an appropriate deterrent against future infringement.
Internet Service Providers
The Bill contains exceptions for search engines such as Google and Yahoo and for ISPs where they act as a mere conduit, provide caching or provide hosting services. The immunities also apply in most cases, even if the ISPs have knowledge of infringing activities.
The Bill does not adopt a notice and take down regime as exists in the United States and Australia, but rather prescribes a notice and notice system to address dealing with online infringement. That is, the ISPs would have to pass on notices from the content holder to the subscriber. Upon receipt of a notice, ISPs must also retain for prescribed periods information required to identify infringers. The failure to comply with the notice and notice regime results in a fine in the range of $5,000 to $10,000.
Access for Research and Education
The Bill contains several provisions to address concerns from educators and research about reasonable access by:
- allowing schools to use publicly available material that
has been legitimately posted on the Internet by rights
holders to sites that are not protected by TPMs, or which do
not contain a clearly visible notice that prohibits the
- allowing schools to transmit materials used in classroom
study to students located off-campus so that they can
interact with the teacher during the lesson or view it at a
time chosen by them, provided that the institution takes
reasonable measures to restrict access to students
- allowing schools that already have licences to make
photocopies of works to make digital copies of those works to
send to students, subject to payment; and
- enhancing the ability of researchers to gain quicker
access to material stored in distance libraries via the
McCarthy Tétrault Notes:
According to the government, the reforms in Bill C-61 represent a balance between the rights of copyright owners and the needs of users to access copyright works. From the content holders' perspective, the adoption of the WIPO treaties, the protection of TPMs and the legal remedies for unauthorized copying are welcome changes. As well, the amendments should help ISPs to clarify their liability in cases of infringement. The Bill is also very favourable for individual users of copyright materials.
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