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.

Time-Shifting

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.

www.fasken.com

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 Mondaq.com.

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

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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