On June 12, 2008, the Conservative federal government tabled
Bill C-61 to amend the Copyright Act, describing it as
a "made in Canada" solution to bring it in line with
advances in telecommunications technology and current
The bill is complex and covers many different issues, but in
the following summary we focus on some of the changes that most
directly affect businesses, including content providers:
Internet service providers (ISPs) would be obligated to
adhere to a statutory "notice and notice" system.
An ISP would have to immediately forward a copyright
owner's notice of infringement to the alleged
infringer and retain records on the identity of the alleged
infringer. An ISP that fails to do so could be liable to the
copyright holder for statutory damages ranging from $5,000 to
Educational institutions would be permitted to use and
reproduce material from the Internet for teaching purposes
only. However, if the Internet site restricts the use of the
material, either through a specific notice or digital lock,
the institution may not use the material. A simple copyright
notice on the material would not suffice as a prohibition
against using the material.
Copyright owners would be able to sue for statutory
damages up to a maximum of $500 for all an
infringer's illegal downloads for private use or up
to $20,000 per work if the infringer made the work publicly
available, possibly through actions such as uploading a
copyright-protected video or picture to peer-to-peer sites,
YouTube or social networking sites such as Facebook.
The amendments introduce the offence of disabling digital
locks (such as Digital Rights Management technology), as
"circumventing a technological measure." Copyright
infringers who disable a digital lock may face damages of up
to $20,000 if this infringement is for personal use or a
possible prison sentence and fine of up to $1 million for
doing this "knowingly and for commercial purposes."
The amendments do, however, include several exemptions from
the offence of disabling a digital lock: for security
testing; for encryption research; to overcome
interoperability between different computer programs; to
enable those who are disabled to access material; and to
protect personal information.
Individuals would be permitted to copy legally obtained
music to each device they own (such as an MP3 player or
personal computer). Individuals may also make a single copy
of legally obtained music, photographs, books, newspapers,
periodicals and videocassettes (but notably not DVDs) to
devices they own (known as "format shifting"). In
each case, these permissions would be subject to any
contractual or licence obligations that may govern the use
and reproduction of downloaded material. Moreover, the
proposed legislation does not permit a person to disable a
digital lock to make such copies.
Recording television or audio broadcasts would generally
not be considered copyright infringement; however, the
recording must not be kept longer than necessary to watch the
broadcast later, and must not contravene any contract terms
of any video-on-demand services that may limit the right to
record such broadcasts.
Bill C-61 is undergoing only a first reading, and there is a
strong possibility it may not come into force given the current
political situation. Nonetheless, even if the amendments do not
come into force, they may in fact signify a substantive shift
in Canada's policy on copyright law. Any developments
on this topic should be monitored closely over the next several
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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