On the morning of June 12, 2008, Minister of Industry Jim
Prentice tabled Bill C-61, An Act to Amend the Copyright
Act (the Bill). Revisions to the Copyright
Act have been the focus of intensive discussions between
stakeholders for a number of years and were originally
scheduled to be tabled in December 2007, after the Conservative
government declared a desire to improve the protection of
cultural and intellectual property rights in Canada.
The "Made-in-Canada" approach, as it has been
labelled by Mr. Prentice, seeks to ensure that Canada is in
compliance with the World Intellectual Property Organization
Copyright Treaty adopted in 1996, and includes many new
changes, some of which include:
Protection of Digital Rights Management (DRM)
technology. Also known as "Technical Protection
Measures", DRM is designed to be built into digital
music, DVDs, and other media and technology products to
ensure that they are not subject to unauthorized
copying. The proposed amendments include
anti-circumvention provisions, which prohibit the removal or
tampering with DRM technology. Bill C-61 also offers
protection for Rights Management Information (RMI), which is
used to identify the rights holders of original works or to
outline restrictions on use of copyright works. The Bill
would prevent the removal of, or tampering with, RMI.
A $500 cap on statutory damages for individuals
downloading copyrighted files, provided that technological
protection measures or digital locks were not circumvented in
the process. The $500 damage award would be the maximum
statutory amount that could be awarded against individuals
for private use infringements, though infringements for
non-private purposes, such as posting music on peer-to-peer
sites would still result in the current range of statutory
damages of between $500 and $20,000 per work.
A "Notice and Notice" regime for ISPs, whereby
ISPs, after being notified of infringement allegations by a
rights holder, would be obligated to notify the relevant
subscriber of the allegations received. ISPs would also
obliged to retain records that would enable the
identification of the subscriber allegedly engaged in the
infringing activity for a period of six months.
New rights and protections for rights holders include the
"making available" right, which would extend to
performers and producers. In addition, a "moral
right" would allow performers to prevent distortions of
"Private copying of music" provisions would
allow individuals to make one copy of music accessed legally
for each device owned (including computers and MP3 players)
in .wav, .mp3 or other formats. The copy would only be
permitted for personal use, and could not be given away,
sold, performed or otherwise communicated in public.
These provisions would not override terms of a contract
governing the extent to which an individual would be able to
make copies of a song that had been downloaded from the
Internet. In addition, these provisions would not apply
if the reproduction was made onto a medium that is governed
by the private copying provisions currently found at Part
VIII of the Copyright Act, such as CD-Rs.
Education exemptions would make it legal for students at
schools and institutions of higher learning to download
copyright information for the purposes of study and research.
Schools would also be allowed to transmit materials used in
classrooms to students located off-campus to facilitate
learning so long as the material was restricted to
Time-shifting provisions would allow for the making of
one copy of television or radio programs for private
purposes. The time-shifting recording would have to be
obtained from a legal source and could not be given away,
sold, distributed, performed or otherwise communicated in
public. As well, technical protection measures could
not be circumvented to create the recording, and the
recording could not be kept "longer than necessary in
order to listen to or watch the program at a more convenient
The above is just a summary of some of the provisions found
in Bill C-61. While the Bill has finally been introduced after
months of delays, no date for second reading has been
set. Stikeman Elliott will continue to monitor any
developments and will provide further updates where
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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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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