Proposed Changes to bring Canada’s Copyright Law into the 21st Century

July, 2008

On June 12, 2008, the federal government gave Bill C-61, an act to amend the Copyright Act, its first reading.  The Bill represents the second time a federal government has proposed to update Canada’s copyright laws to reflect the norms of two treaties adopted by the World Intellectual Property Organization in 1996.

The proposed changes, which will be addressed below, attempt to clarify copyright law rights in Canada for decision-making bodies, rights holders, and users of copyrighted information.  While there have been statements made on behalf of rights holders and consumers about the suitability of the proposed changes, all interested parties will have a chance to address the provisions of the Bill, when it comes before the House of Commons Standing Committee on Industry, Science and Technology, when Parliament resumes this fall.  In light of the difficulties the Copyright Board of Canada and various levels of courts have been having in the application of the outdated Copyright Act to the realties of new technologies and digital information, changes to the Copyright Act are sorely needed.   

Below, I have attempted to highlight the more significant proposed changes in the Bill.

Private Copying of Music

Individuals will be permitted to copy digital music onto other devices, i.e. from a computer to a MP3 player, provided that certain conditions are met, for example, the digital music was not obtained illegally, an anti-copying protection was not circumvented in order to make the copy, and the copy is only used for private purposes.  However, where a consumer obtains digital music over the internet pursuant to a contract, then the terms of the contract will prevail over the terms in the Copyright Act.

Time-Shifting

Individuals may record a television show or radio program provided that certain conditions are met, for example, the program was received legally, the individual keeps the recording no longer than necessary in order to listen to or watch the program at a more convenient time, and the individual does not give the recording away.

Format Shifting

Individuals would be permitted to copy a work that is a photograph, book, newspaper, periodical, or videocassette, onto another medium or device provided certain conditions are met, for example, the copy of the work was not obtained contrary to the Copyright Act, the individual legally obtained the work and owns the medium or device onto which it will be reproduced, and the individual did not circumvent any technological measure in order to make the copy.  However, where a consumer obtains the work over the internet pursuant to a contract, then the terms of the contract will prevail over the terms in the Copyright Act.  Individuals will not be permitted to copy from any other mediums not listed, i.e. DVDs.  Where the individual intends to give away, rent, or sell the original work, the individual must first destroy any reproductions of it.

Technological Protection Measures (“Digital Locks”)

Individuals will be prohibited from circumventing technological protection measures (“TPM”), except pursuant to certain exceptions.  Generally, a TPM can take the form of an access control, i.e. a username and password, or a copy control, where a digital lock prevents an individual from, for example, copying the work to another medium.

The Bill prohibits: (1) circumvention of TPMs; (2) the offering of services to the public or providing services if : (i) primarily for the purposes of circumventing TPMs; (ii) the uses of those services are not commercially significant other than when provided to circumvent TPMs; or (iii) the person markets those services as being for the purpose of circumventing TPMs; and (3) the manufacture, importation, provision, of any technology or device if: (i) the device is primarily for the purposes of circumventing TPMs; (ii) the uses of those devices are not commercially significant other than when used to circumvent TPMs; or (iii) the person markets the technology or device as being for the purpose of circumventing TPMs.

Some exceptions to these prohibitions are:

  • activities related to the protection of national security;
  • making computer programs interoperable;
  • encryption research;
  • correcting any security flaws in a copyrighted work, i.e. software program;
  • making a copyrighted work perceptible to a person with perceptual disabilities;

Internet Service Providers – Liability Exemption

Internet service providers do not infringe copyright for the sole reason that the internet service provider provided the means for the telecommunication or reproduction of a copyrighted work.

However, where a third party alleges that a client of an internet service provider is infringing its copyright, the internet service provider will be required to send notice of the allegation on to such client.  This is called the “notice and notice” regime.  The internet service provider will also be required to retain records for 6 months which will allow the alleged infringer to be identified.

Educational and Research Uses of Copyrighted Information

The Bill would allow an educational institution to broadcast a lesson containing copyrighted works over the internet to students enrolled in the course.  Where an educational institution has a reprographic license for certain works, it may make digital reproductions of such works.  An educational institution may also use copyrighted works from the internet for educational and training purposes by way of copying, broadcasting over the internet, and performing for the public.  However, such use is only permitted where the educational institution mentions the source of the work and other information as available.  Further, an educational institution is not permitted to deal with copyrighted information on the internet if the educational institution circumvented a TPM to acquire the copyrighted information or the internet site prohibits the use of its copyrighted information.

Photographs

A person, who commissions a photograph, portrait, or engraving, would not be the first owner of the copyright in such work, but rather the owner would be the artist who created the work.  The person who commissioned the work would have the right to use the work for personal and non-commercial purposes, unless the parties agreed otherwise.

Under the present Copyright Act, the person, who commissions the photograph, portrait, or engraving, is also the owner of the copyright.

Statutory Damages

Where a plaintiff elects to recover statutory damages from a defendant for all of the defendant’s copyright infringements done for private purposes, then the maximum penalty is $500, so long as the defendant did not circumvent any TPM in the course of the copyright infringements.

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Ryan K. Smith is a lawyer and trade-mark agent at Feltmate Delibato Heagle LLP. He specializes in corporate and commercial law with expertise in intellectual property matters including trade-marks, copyrights, privacy, information technology, and confidential information.  You can reach Ryan at rsmith@fdhlawyers.com and (905) 287-2215.