Bottom Line: Bill C-11 ("Copyright Modernization Act") finally received Royal Assent on June 29, 2012, although there is not as yet an in-force date. With the new amendments to the Copyright Act, copyright owners will have added protection in some ways and diminished protection in others. For example, there is new latitude for others to use your logos in parody and satire and for your copyrighted material to be included in user-generated content (non-commercial). There are also new prohibitions on enabling infringement as well as new requirements for Internet service providers to address alleged infringement. We outline some of the details below.
PARODY AND SATIRE NEW FAIR DEALING EXCEPTIONS TO INFRINGEMENT
Under the current law, if someone produces a satirical work using your logo, you can sue them for copyright infringement. That option will become severely limited under the amended Copyright Act, because of new parody and satire fair dealing exceptions to infringement. Under the new law, creating a satire or parody using logos owned by other parties may no longer be considered copyright infringement, if the dealing is "fair". These exceptions will likely provide new inspiration for creative directors and new angst for logo owners.
NEW USER GENERATED CONTENT EXCEPTION TO INFRINGEMENT
The new user-generated content exception to copyright infringement has received a lot of attention. This allows one - subject to certain conditions - to create and publish "mash-up" videos and other user-generated content without infringing the copyright in the works used. Note! This does not mean that you can go ahead and encourage consumers to post user-generated content on your website without the threat of a copyright infringement lawsuit. The new exception does NOT apply where the user-generated content is used for a commercial purpose. The take-away? Advertisers still need to worry about vetting any user-submitted content for copyright infringement.
"NOTICE AND NOTICE" REQUIREMENT V. THE US "NOTICE AND TAKE DOWN"
In contrast to the "notice and take down" system under US copyright law, Canada's "notice and notice" approach only requires service providers to pass on any notice alleging copyright infringement to the person identified as responsible for posting the content. If they don't, they may be subject to statutory damages of between $5,000-$10,000.
NO ENABLING INFRINGEMENT!
The new law prohibits online services that are primarily for the purpose of enabling copyright infringement. Now, copyright owners can sue the operators of sites like illegal peer-to-peer file sharing and "pirate" sites.
DIGITAL LOCKS AND RIGHTS MANAGEMENT INFORMATION
The amendments also make it an infringement to circumvent technological protection measures like digital locks, and prohibit one from removing or altering rights management information like digital watermarks that are used to identify copyrighted works. This provides copyright owners with additional tools to help protect and police their works.
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.
