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
- 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
- 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'
- 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
- for the purpose of encryption research;
- for the purpose of testing and correcting computer system
- 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
- 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;
- 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
- 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
- the individual does not give the recording away;
- 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.
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.