Canada: Amendments To The Copyright Act

Last Updated: July 1 2008
Article by Gerald Kerr-Wilson

The Conservative Government introduced important new amendments to Canada's Copyright Act on June 12 which are designed to update the law to reflect the development of digital technologies, in particular the internet. The amendments proposed in Bill C-61, An Act to Amend the Copyright Act, if passed, would put Canada in a position to ratify two treaties that were negotiated at the World Intellectual Property Organization (WIPO) in 1996.

The bill proposes amendments which will:

  • Provide protection for the "digital locks" or technological protection measures that record companies, movie studios, software companies and other content distributors use to protect the creative works they produce and sell;

  • Establish new exclusive rights for performers and record companies, including the right to make sound recordings available on the internet.

  • Create new "personal use" exceptions that will allow individuals to record television programs, make digital copies of music, and move content from one format to another without infringing copyright;

  • Limit the amount of damages that can be awarded against an individual who infringes copyright for private use to $500 per claim;

  • Clarify the role of Internet Services Providers (ISPs) with respect to copyright infringement by exempting ISPs from copyright liability, but requiring them to forward notices of alleged copyright infringement to subscribers and to retain the records necessary to determine the subscribers' identity; and

  • Provide new exceptions for the educational use of material accessed from the internet.

This is the second bill introduced by a Canadian government in the last three years intended to update the Copyright Act to deal with the impact of the internet and other digital technologies on copyright protected material. The Liberal minority government of Paul Martin introduced similar legislation in June 2005, but the legislation died when the Government fell in November 2005 after losing a confidence motion in the House of Commons.

Bill C-61 will be referred to the House of Commons Standing Committee on Industry, Science and Technology when Parliament resumes in the Fall. Given thenumber of stakeholders who will want to appear before the Committee to give their views on the legislation, it is possible that the minority Conservative Government may not survive long enough to see the copyright reform legislation passed into law.

The following is a summary of the changes to the Copyright Act proposed in Bill C-61.

Technological Protection Measures (or "Digital Locks")

Of all the changes to the Copyright Act proposed in Bill C-61 to benefit rights holders, probably the most significant are the new provisions relating to the circumvention of technological protection measures (TPMs), or "digital locks", that rights owners use to prevent the unauthorized use of their works and other subject matter. TPMs fall into two general classes – "access control" and "copy control". Examples of access-control TPMs include the password protection of a website to restrict access to authorized users, and the encryption systems that cable and satellite companies use to restrict access to channels to those individuals who have subscribed to the channels and paid the appropriate fees. An example of a copy-control TPM is the encryption used to prevent an individual from copying a movie from a DVD to a home computer.

Bill C-61 would amend the Copyright Act to prohibit the circumvention of both access control TPMs and copy-control TPMs. The Bill would also amend the Act to prohibit the offer of services that are provided primarily for the purpose of circumventing a TPM. It would also prohibit the manufacture, importation or provision of any technology, device or component produced primarily for the circumvention of a TPM.

There are statutory exceptions to the prohibition against the circumvention of TPMs in circumstances where the circumvention is for the purpose of:

  • making a computer program interoperable with another computer program;

  • for the purpose of encryption research;

  • for the purpose of testing and correcting computer system security; and

  • for the purpose of making content perceptible to a person with perceptual disabilities.

The Bill would give the Governor-in-Council the authority to make regulations to prescribe additional exceptions to the prohibitions against circumventing TPMs.

New "Making Available" Right

The 1996 WIPO Internet treaties require member countries to provide rights holders with an exclusive right to cover the making available to the public of their copyright protected subject matter in such a way that members of the public may access these works from a place and at a time individually chosen by them. This right would cover posting works on the internet so that others can download the works, or sharing copyright protected material using peer-to-peer file sharing applications.

Bill C-61 does not make any changes to the exclusive rights granted to authors and composers pursuant to section 3 of the Copyright Act, to grant an explicit "making available right". The Act already grants to authors an exclusive right to communicate works to the public by telecommunication. In proceedings dealing with ringtones and online music download services, the Copyright Board of Canada has held that this existing communication by telecommunication right already covers making works available for downloading by individuals. The Federal Court of Appeal upheld the Copyright Board's decision on ringtones and that decision by the Federal Court of Appeal is now the subject of an application to the Supreme Court of Canada for leave to appeal.

Unlike authors, record companies and performers do not currently have an exclusive communication right. Instead, they have a right to equitable remuneration with respect to the communication and public performance of sound recordings. Bill C-61 would amend the Copyright Act to create a new "making available" right for both sound recording makers and performers which is separate from the existing right to equitable remuneration

Moral Rights for Performers

Bill C-61 would extend to performers moral rights in their performances. These rights would include the right to the integrity of the performance and the right, when it is reasonable in the circumstances, to be associated with the performance as its performer and the right to remain anonymous.

Transfer of Works to Another Medium or Device

Bill C-61 would amend the Act to permit individuals to make copies of photographs, books, newspapers, magazines and videocassettes onto another medium or device, such as a recordable CD or DVD, as long as the following conditions are met:

  • the copy of the subject-matter being reproduced is not an infringing copy;

  • the individual legally obtained the material otherwise than by borrowing or renting it and owns the medium or device on which it is being reproduced;

  • the individual did not circumvent a technological protection measure, or "digital lock", in order to make the reproduction;

  • the individual makes no more than one copy of the material for each device the individual owns;

  • the individual does not give the reproduction away; and

  • the reproduction is used only for private purposes.

If the individual has legally downloaded the material from the internet, then any contract provisions which govern the making of copies would prevail over the provisions of the Act. If the individual gives away, rents or sells the original copy of the material from which the reproductions are made, the individual must destroy all reproductions made from that original copy.

Copies of Musical Works

Bill C-61 would create a similar "transfer of format" exception for musical works and sound recordings of musical works with similar conditions. Part VIII of the Copyright Act already provides a "private copying exception" for making copies of musical works and sound recordings. However the Federal Court of Appeal has ruled that the definition of "audio recording medium" in Part VIII of the Act does not include devices such as iPods and MP3 players. The provisions of Bill C-61 would make it clear that it is not an infringement of copyright to make copies of musical works and sound recordings that they have legally obtained onto these devices in circumstances in which Part VIII of the Act does not apply.


The Copyright Act currently does not permit individuals to legally record television programs on a VCR or personal video recorder (PVR) to view at a later time, even though the practice is widespread among Canadians. Bill C-61 would create a "time-shifting" exception to permit individuals to make copies of television or radio programs for viewing or listening at a more convenient time subject to the following conditions:

  • the individual receives the program legally;

  • the individual did not circumvent a technological protection measure, or "digital lock", in order to record the program;

  • the individual makes no more than one recording of the program;

  • the individual keeps the recording no longer than is necessary to listen to or watch the program at a more convenient time (i.e. the exception does not allow individuals to create a persistent library of time-shifted programs);

  • the individual does not give the recording away; and

  • the recording is used only for private purposes.

The "time-shifting" exception does not apply to programs that are communicated over the internet, unless they are broadcast simultaneously on radio or television.

Educational Uses of Copyright-Protected Material

Bill C-61 would amend the Copyright Act to include new provisions governing the use of material for educational uses, including material accessed from the internet. Teachers would be able to use copyright material in lessons conducted over the internet and these lessons could be recorded for viewing at a later time. If an educational institution has an existing licence from a collective society permitting the institution to reproduce works in the collective society's repertoire, then the institution would be permitted to make digital reproductions of those works.

The Bill would also permit teachers to use material found on the internet for educational purposes and to make copies of the material. The teacher must mention the source of the material including the name of the author in the case of a work, the name of a performer in the case of a performer's performance, the same of the record company in the case of the sound recording, and the name of the broadcaster in the case of a communication signal. The right to use material available on the internet does not apply if the material, or the internet site where it is posted, is protected by a technological protection measure, or there is a clearly posted notice on the internet site where the material is posted prohibiting the use of the material.

Internet Service Providers Exemption from Liability

Bill C-61 would confirm that Internet Service Providers (ISPs) are not liable for copyright infringement for providing any means for the telecommunication or reproduction of material through the internet. Organizations that host content posted by third parties would also be exempt from copyright liability.

ISPs would be required to comply with a mandatory "notice and notice" regime in response to complaints from rights holders about allegedly infringing activity by end users. An ISP that received a notice from a rights holder alleging that one of the ISP's subscribers is engaged in infringing activity would have to forward that notice to the subscriber who is the subject of the complaint. The ISP would not be required to disclose the identity of the subscriber to the complainant, but would have to retain for 6 months the data necessary to determine the identity of the subscriber.

Statutory Damages

The Bill would limit the statutory damages that could be awarded to a plaintiff to a total of $500 where the defendant's infringements were done for "private purposes". If a plaintiff has elected statutory damages in such a case, then no other plaintiff may elect statutory damages in respect of the defendant's infringements that were done for private purposes before the commencement of the original proceedings in which the election of statutory damages was made.

These limits to statutory damages do not apply if the defendant circumvented a technological protection measure in order to infringe copyright.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions