home

Media Law Resource Center

Serving the Media Law Community Since 1980

Home

Canada’s Copyright Modernization Act: A Delicate Rebalancing of Interests

By Paul Schabas, Iris Fischer and Christopher DiMatteo*

I.          Introduction

The law has long recognized the public interest in giving creators a property right over their creations.  In 1769, an English judge said, “It is wise in any state, to encourage letters, and the painful researches of learned men.  The easiest and most equal way of doing it, is, by securing to them the property of their own works.”[1]  Like other areas of law, however, copyright law attempts to achieve an intricate balancing of interests.  The Supreme Court of Canada has commented that the Canadian Copyright Act[2] strives to give the creator of a work his or her “just reward”, but at the same time promote “the public interest in the encouragement and dissemination of works of the arts and intellect.”[3]  To this end, copyright law not only “recogniz[es] the creator’s rights” but gives “due weight to their limited nature.”[4]  Giving the interests of either creators or users of works undue weight in the balancing leads to obvious problems.  Tipping the balance too far in favour of users would mean that only the most selfless have an incentive to create; but tipping the balance too far in favour of creators “may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole.”[5]

Prior to the recent amendments, Canada’s copyright legislation was sorely in need of an update.  The Copyright Act was last significantly amended more than fifteen years ago, an eternity in the digital age.[6]  As one parliamentarian said when introducing the bill to amend the Copyright Act:

Each year that Canada goes without modern copyright laws, the need for such modernization becomes more evident as technology evolves and new issues emerge.  The last time the [Copyright] Act was changed, there were no MP3 players.  Video stores were still full of VHS tapes.  No one thought we would be able to take pictures with a cellphone and upload them onto computer screens around the world…The world has changed so much since then that the Copyright Act seems like a law for a different era.[7]

After many aborted attempts to amend Canadian copyright legislation, Bill C-11, the Copyright Modernization Act,[8] received royal assent on June 29, 2012 and was, for the most part, proclaimed in force on November 7, 2012.[9]

This paper highlights some of the most important recent amendments to the Copyright Act and discusses the various competing interests that were weighed when the amendments were being considered.

Parliament enacted a series of user-friendly amendments, including amendments to permit users to do more with protected material, as well as amendments that treat non-commercial infringements of copyright far less harshly than commercial infringements.  This has led some to suggest that, in the “tug-of-war between rights-holders[10] and users”, the users have emerged victorious.[11]

Others are not so sure, however, since Parliament has also enacted strong protections for “digital locks”, which could have the effect of preventing users from doing the very things that the user-friendly amendments permit them to do.  Thus, in balancing the interests of users and rights-holders, Parliament may be giving with one hand but taking with the other.[12]  The only certainty is that, when reforming something as complex as copyright legislation – which strives to find an acceptable balance between scores of competing and contradicting interests – you can’t please all of the people all of the time.

II.        Fair dealing

“Fair dealing” is “[o]ne of the tools employed” by the Copyright Act “to achieve the proper balance between protection and access…which allows users to engage in some activities that might otherwise amount to copyright infringement.”[13]  There is a two-step test that the user must satisfy to establish that the use at issue constitutes fair dealing.  First, it must fall under one of the allowable categories of uses in the legislation.[14]  Second, it must be “fair”, having regard to a list of factors articulated by the courts, such as the purpose of the dealing and the effect of the dealing on the market for the work.[15]

The recent amendments expand the scope of fair dealing by adding three additional categories of “fair dealing” uses.  Formerly, the Copyright Act provided that fair dealing for the purpose of research, private study, criticism, review, and news reporting does not infringe copyright. The recent amendments added “education, parody or satire” to the list.[16]

Many creators were opposed to extension of the fair dealing provisions.  One representative of an artists’ trade union pointed out that people have always “produced parody and satire without being sued”, and so extending the “fair dealing” provisions to include parody and satire was unnecessary and risked over-extending the scope of “fair dealing.”[17]  The “education” extension to the “fair dealing” provision was particularly criticized as an “expropriation of [creators’] rights.”[18]  One book publisher argued that the “single most important thing” to do to improve the bill would be to omit “education” from the fair dealing provisions, as he worried that the provision would give educational and other institutions carte blanche to use copyrighted works without compensating publishers.[19]  The Chair of the Writers’ Union of Canada warned that the “education” extension to “fair dealing” will lead to “a perfect storm of unauthorized copying in schools.”[20]  Another publishing representative insisted that the amendment would “make us lose money and reduce our capacity to develop new materials.”[21]

Some defenders of the amendment pointed out that merely qualifying as a fair dealing purpose (i.e., “education” or “parody” or “satire”) is necessary, but not sufficient, to meet the test for fair dealing: the dealing itself must also be “fair” having regard to the factors in the jurisprudence.[22]  However, opponents felt the existing jurisprudence was already insufficiently protective of their interests because, in determining what is “fair”, the “effect of the dealing on the market of the copyright owner” is merely one factor among many, and is not decisive.[23]  To remedy this problem, the Canadian Federation of Musicians proposed an amendment that would require that the dealing must “not have an adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work.”[24]  This was rejected.

People on both sides of the debate also had concerns about the vagueness of the language in the new provisions.  The Conservative government was criticized for introducing new terms into the legislation (“education, parody, or satire”) whose definition will not be clear until expensive litigation results in judicial interpretation: “[i]n the meantime, uncertainty will persist and users, especially teachers, as well as copyright holders, will wonder about permitted uses.”[25]  Some worried that deep-pocketed creators who want to “restrict consumer access” to works might use litigation to narrow the definition of “education” “in ways that would be prejudicial to the average person who wants to use the material.”[26]

Other stakeholders were predictably in favour of the expansion of fair dealing, as Canada’s laws on this are now relatively generous. [27]  For instance, “consumer groups, students, libraries, schools and museums expressed general approval” of the change.[28]  In addition, around the same time that these amendments were passed, the Supreme Court of Canada released two copyright decisions which “emphasized the importance of fair dealing as users’ rights.”[29]  In the case of fair dealing, at least, the balance therefore appears to tip in favour of users, as the legislation now offers “considerable flexibility that allows Canadians to make greater use of works without prior permission or fear of liability.”[30]

However, users shouldn’t celebrate just yet.  As discussed below, their “fair dealing” victory might very well be Pyrrhic, given the significant batch of amendments dealing with digital locks.[31]

III.       Other user-friendly amendments

Several of the other amendments to the Copyright Act also favour users by letting them do more with protected works without being liable for copyright infringement.

Bill C-11 creates the so-called “YouTube exception” for “non-commercial user generated content.”[32]  Consider the person who makes a slideshow of images and videos from her latest family vacation, with a popular song (“the existing work”) playing in the background, and posts the finished product on YouTube.  Under these new amendments, the person has not infringed copyright in the existing work if: the finished product is used for non-commercial purposes; the source of the existing work is mentioned if it is reasonable to do so; the person had reasonable grounds to believe that the existing work was not itself infringing copyright; and the finished product does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work.[33]

The Conservative government’s stated motivation for the YouTube exception is to protect innocent users whose activities are innocuous, but who were breaking the law unknowingly: “Until this bill is passed, these activities [such as “digital-mash ups”] are technically illegal.  Consumers who do ordinary activities that are commonly accepted…are now in a grey area with respect to their copyright responsibilities.”[34]  The YouTube exception was praised by some as helping to “nurture the next generation of artists…who will help tell and shape Canada’s story without risk of lawsuit…[since they are] free to experiment, re-mix and mash-up content” provided they meet the “reasonable conditions” in the legislation.[35] Indeed, this reflects the view that having fewer copyright protections actually increases creative output, since users are able to use existing works as a jumping off point.[36]

However, the “YouTube” exception was met with opposition from some creators who felt that it would “encourage a culture of entitlement” and “weaken [their] moral rights, which protect their reputation.”[37]  There was also concern that the statutory language of “non-commercial use” was “vague”, which could “lead to the devaluation of musical copyrights.”[38]  The Canadian Federation of Musicians recommended that the YouTube exception be abandoned, noting that while it is reasonable to allow “families to post videos of their kids dancing to pop music without breaking the law”, the language was so imprecise as to “remove the ability of creators to license or have any say in what happens to their work.”[39]

A series of additional amendments protect consumers from liability for other “ordinary activities that are commonly accepted”, but which were technically illegal under the former Copyright Act.[40]  For instance, subject to certain requirements, the amendments permit “reproduction for private purposes” or “format-shifting”, such as transferring a song from a CD to an MP3 player.[41] The amendments also explicitly permit reproduction of copyrighted materials for later listening or viewing (in other words, “time-shifting” a program on a PVR), subject to requirements very similar to those imposed by the “reproduction for private purposes” provision.[42]  Finally, the amendments permit individuals to make backup copies of copyrighted works, provided that, among other things, the individual does not give any of the reproductions away to others.[43]  Some rights-holders criticized these amendments as “catastrophic for music creators.”[44]  However, these liberalizations to permit format-shifting, time-shifting, and the creation of backup copies are all subject to the condition that the creation of the reproduction not circumvent a “technological protection measure.”  As such, they may not be so user-friendly.

IV.       Technological protection measures (“TPMs”)

Some of the most controversial amendments to the Copyright Act are the provisions relating to “digital locks” or technological protection measures. A TPM is defined as “any effective technology, device or component that, in the ordinary course of its operation”, either “controls access to a work” or “restricts the doing” of certain acts with respect to the work, such as reproduction.[45]  TPMs are often found in “DVDs, software…electronic books” and other digital media, and restrict the uses consumers can make of the material.[46]  For instance, TPMs are used in online movie rentals to prevent users from copying the movie file and to restrict the amount of time users have access to the file to the rental period.[47]

There is a broad prohibition against circumventing TPMs; offering services to the public primarily for the purpose of circumventing TPMs; and manufacturing, importing, distributing, offering for sale or rental, or providing devices designed or produced primarily for the purpose of circumventing TPMs.[48]  But the real teeth of the TPM provisions come from the legislation treating the violation of the provisions as a breach of copyright: “The owner of the copyright in a work…in respect of which [the TPM provisions are violated] is…entitled to all remedies – by way of injunction, damages, accounts, delivery up and otherwise – that are or may be conferred by law for the infringement of copyright against” the person who breached the TPM provision.[49]  However, only actual damages (as opposed to the statutory damages provided for in the Copyright Act[50]) are available “from an individual who contravened [the TPM] only for his or her own private purposes.”[51]  Furthermore, every person who “knowingly and for commercial purposes” contravenes the prohibitions regarding TPMs is guilty of an offence and is liable to a fine of up to $1,000,000 or to imprisonment for up to 5 years, or both.[52]

There are narrow exceptions to the TPM provisions.  Subject to certain conditions, there is no liability for circumventing TPMs in order to:

  • make a computer program “interoperable” (i.e., able to communicate with other computer programs);[53]
  • conduct encryption research;[54]
  • verify whether the TPM permits the collection or communication of personal information, and if so, to prevent it;[55]
  • assess the vulnerability of a computer, computer system, or network, provided that the person who circumvents the TPM has the permission of the owner or administrator;[56] or
  • make the protected work perceptible to a person with a disability.[57]

Canadian TPM provisions are now “amongst the most restrictive in the world.”[58] Some perceive the TPM provisions as being the result of undue American corporate influence in Canadian policy-making.[59]  The critics’ primary problem with the TPM provisions is that they arguably negate the user-friendly advances made by Bill C-11.  A rights-holder could simply create a TPM to prevent users from, for example, engaging in format-shifting or creating backup copies, and if the user circumvented the TPM, he or she has in effect infringed copyright in the work.  Even breaking a digital lock for a purpose protected by the Copyright Act, i.e. “fair dealing”, would still constitute copyright infringement.[60] In other words, the “rights” that the amendments to the Copyright Act grant to users are subject to the whims of copyright-holders:

We have a right as consumers to access a product…The government will give us all the rights that we should have, but when we go to exercise them, it will say, talk to Sony Corporation and Sony will decide whether we have that right or not…[Users’] rights exist unless a corporation decides that one does not have that right.  By putting in the absolute protection for technological protection measures, they are saying that people have that right, but when they try to access it, they are breaking the law.[61]

The critics’ fear is that “[c]riticism, research, education, creativity and innovation may suffer” as a result of TPMs precluding “users, consumers, follow-on creators, and future innovators…from exercising their rights”. [62]

The Conservative government, however, defends TPMs as necessary to facilitate digital commerce.  One proponent of TPMs argued that the phrase “digital lock” is a “total misnomer”; instead, TPMs should be regarded as “enablers of [new] distribution models” and an “essential element of a thriving digital media marketplace.”[63]  As one parliamentarian noted, it would be impossible for an online service like iTunes to rent movies without TPMs, which permit access to the movie file for only the duration of the rental period: digital locks are “how companies are going to make money and how creators get money for the objects they create.”[64]  It is important to note, however, that the parliamentary opponents of TPMs were not opposed to all TPMs as such, but rather felt that TPMs were given undue protection in the amendments.[65]

Bill C-60 – a failed attempt to reform copyright law in Canada in 2005 – also contained a provision prohibiting the circumvention of TPMs, but only where “the breaking of the lock was in order to infringe copyright.”[66]  In other words, users would be permitted to circumvent TPMs for non-infringing purposes.  The current TPM provisions do not contain “limiting language regarding the purpose of the infringement” and thus cast a “wider net” than did Bill C-60.[67]  Several stakeholders argued that the TPM provisions should be changed to prohibit circumventing TPMs only “for an infringing purpose”,[68] and amendments to this effect were proposed in the parliamentary committee considering Bill C-11, but did not pass.[69]  In addition to arguing that TPMs were necessary to promote a vibrant digital economy, the Conservative government noted that “[t]he market will determine whether or not TPMs are supported”: consumers who do not like TPMs could simply refrain from purchasing TPM-protected works, and if the market for TPM-protected works plummeted as a result, so be it.[70]  The government also argued that permitting the circumvention of TPMs for non-infringing purposes would “enable the piracy…[that] this bill seeks to put an end to.”[71]  Finally, the government noted that the TPM provisions contain a built-in release valve, in that there is statutory power to create further exceptions to the TPM provisions by way of regulation.[72]  It is unfair, the government said, to assume that it would refuse to exercise its regulatory power “and allow consumers to be shafted.”[73]

However, while the TPM provisions at first appear to be strict and “anti-user”, liability for personal users may be quite limited, given that only actual damages are available in cases of non-commercial circumvention of TPMs,[74]  and the criminal sanction is not applicable to breaking digital locks for non-commercial purposes.[75]  As a result, private individuals “are unlikely to face legal action if they circumvent a digital lock.”[76]

V.        Notice-and-notice regime

Another user-friendly amendment creates a “notice-and-notice” regime for cases of alleged online copyright infringement.  Parliament considered the question of what a person who “provid[es] services related to the operation of the internet”[77] (ISP) should do upon receiving a complaint from a rights-holder alleging that one of the ISP’s clients is infringing the rights-holder’s copyright.  The American solution to this problem is the “notice-and-takedown” regime: when an ISP receives notice that one of its clients is infringing copyright, the ISP is required to take down the allegedly infringing material—in other words, to block access to it without any judicial determination regarding the alleged infringement.[78]

The Canadian government, however, rejected the “notice-and-takedown” regime and formalized into law the unique “notice-and-notice” procedure that some Canadian ISPs were already following.[79]  This procedure addresses the situation where the rights-holder believes somebody is infringing their work online, but cannot identify the infringer.  At the time of writing, the “notice-and-notice” provisions are not yet in force.[80]  However, they provide that a rights-holder may send notice of infringement to an ISP in a prescribed form[81]  (the first “notice”).  The ISP must then forward the notice electronically to the user who is being complained of “as soon as feasible”[82]  (the second “notice”).  The ISP is also required to “retain records that will allow the identity” of the user complained of “to be determined” for six months after the ISP received the initial notice, or, if the complainant commences an action against the user, for one year.[83]  A complainant has a remedy in statutory damages of between $5,000 and $10,000 against an ISP that fails to give notice in accordance with this provision.[84]  As explained below in Section 6, Parliament has also enacted a separate “safe harbour” for ISPs to protect them from liability for copyright infringement by their customers.

In the debate surrounding these provisions, some argued that a “notice-and-takedown” procedure was necessary to protect rights-holders, particularly smaller rights-holders who do not have deep pockets to enforce copyright. One representative of the independent music sector argued that the “notice-and-notice” provision places “an unreasonable burden on the copyright holders” by forcing them “to go to court every time there is an infringement notice.”[85]  As a result, smaller rights-holders who do not have the resources to commence expensive litigation to combat infringement are disadvantaged, and the infringer, “knowing there is very little chance that the copyright owner” will come after him or her, “will continue to infringe with impunity.”[86]  Critics were also worried about “BitTorrent” websites – file-sharing websites which post large quantities of material, including potentially copyrighted material, online.  They argued that, without a “notice-and-takedown” regime, these websites would have little incentive to change their business models.[87]  Others argued that the notice-and-takedown regime is more effective in combatting time-sensitive infringements where the claimant does not have the luxury of undertaking lengthy litigation.[88]

Of course, a “notice-and-takedown” regime is problematic in that a rights-holder is, in effect, judge and jury in its own case: it decides when a user is infringing its copyright, and the ISP is required to comply with the rights-holder’s determination by taking down the impugned material or risk being liable for the breach itself[89].  In other words, a lawyer’s letter in statutorily prescribed form alleging copyright infringement has essentially the same effect as an injunction.[90]  It is likely that ISPs would “remove content without warning or evidence of actual infringement, which can potentially lead to a stifling of free expression.”[91]  The government was alive to this criticism and rejected the “notice-and-takedown” approach because it insufficiently protected users’ rights.[92]  Predictably, ISPs and users were generally in favour of the notice-and-notice regime, as opposed to the more restrictive notice-and-takedown regime.[93]

VI.       Safe harbours for ISPs but liability for “enabling” infringement

ISPs now enjoy the benefit of “safe harbour” provisions to protect them from liability for their customers’ infringements of copyright.  While these amendments protect ISPs and not users, they are generally consistent with Parliament’s intention to liberalize the Copyright Act.  The legislation provides that “[a] person who, in providing services related to the operation of the Internet…provides any means for the telecommunication or the reproduction of a work…through the Internet…does not, solely by reason of providing those means, infringe copyright in that work or other subject-matter.”[94]  ISPs are also not liable for copyright infringement by reason only that they cached a work in order to make the telecommunication more efficient.[95]  Similarly, “hosts” are protected from liability for their users’ copyright infringement: a person does not infringe copyright in a work solely by virtue of providing “digital memory in which another person stores the work” for the “purpose of allowing the telecommunication of a work…through the Internet.”[96]

The purpose of these provisions is to “protect the good guys” whose “services are sometimes used to transmit infringing content, but it’s not their primary purpose.”[97]  The amendments were praised as contributing to “the growth of the online economy” and facilitating technological innovation such as cloud computing.[98]  Some creators, however, criticized the ISP-friendly amendments as being too generous, and suggested that ISPs should be liable to rights-owners for infringements that they facilitate because ISPs have “enormous resources that could be used to combat piracy, educate consumers and compensate the music industry for losses sustained”, and because ISPs have profited enormously from “the circulation of content provided by rights owners.”[99]

Other recent amendments were enacted to go after the “bad guys.”  Bill C-11 created a new kind of liability for enabling copyright infringement over the Internet.  It provides that “[i]t is an infringement of copyright for a person, by means of the Internet…to provide a service primarily for the purpose of enabling acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet…as a result of the use of that service.”[100]  In determining whether a person provides a service “primarily for the purpose of enabling acts of copyright infringement”, the court will consider: whether the person explicitly or implicitly marketed the service as one that could be used to infringe copyright; whether the person had knowledge that the service was used to enable “a significant number” of infringements; whether the service has “significant” non-infringing uses; whether the person was able to limit acts of infringement when providing the service and any steps taken to do so; any benefits received by the person as a result of enabling the infringement; and the economic viability of the service if not used to enable acts of infringement.[101]

The provision imposing liability for enabling copyright infringement is stricter than originally drafted, which was to only target services designed to enable copyright infringement.[102]  Some argued that this wording was too narrow because it focussed on the subjective intent of the person who created the service, without regard to whether the service was actually used to infringe copyright.  As a result, there was a fear that providers of these services might successfully argue, “Sure, 99% of the people who go to my website are downloading illegal content, and sure, I’ve made millions of dollars from all the infringement, but…[that] was never what I primarily designed my website to do.  It just so happens to be what it’s used for nowadays.”[103]  The legislative committee studying Bill C-11 agreed, and the language “primarily for the purpose of enabling” copyright infringement was substituted.[104]

VII.     Statutory damages

The provisions relating to statutory damages were significantly amended in a user-friendly manner by Bill C-11.

Formerly, the Copyright Act provided that the rights-holder could elect, at any time before final judgement in a case was rendered, to receive statutory damages instead of actual damages, if an infringement was found. If an election was made for statutory damages, the court could impose statutory damages of up to $20,000 per work that was infringed.[105]

The amendments now impose a bifurcated regime of statutory damages which distinguish commercial from non-commercial infringements.[106]  Some things are the same – the default situation is still a claim for actual damages, and a rights-holder has the option of electing statutory damages over actual damages at any time before final judgment. Where statutory damages are elected for “infringements…for commercial purposes”, the damages available are the same as previously: the court may order up to $20,000 in damages per work that is infringed.[107]  However, where the “infringements are for non-commercial purposes”, the court may order between $100 and $5,000 in damages “with respect to all infringements involved in the proceedings for all works.”[108]  In other words, statutory damages in a proceeding for non-commercial infringement are now limited to $5,000, no matter how many works were infringed.  Furthermore, in exercising its discretion to award statutory damages for non-commercial infringements, the court is to consider “the need for an award [of damages] to be proportionate to the infringements, in consideration of the hardship the award may cause to the defendant, whether the infringement was for private purposes or not, and the impact of the infringements on the plaintiff.”[109]

These amendments were also controversial.  The Conservative government’s policy is clearly to treat non-commercial, or “personal use”, infringement less harshly than commercial copyright infringement,[110] and the amendment was applauded by some consumers’ groups as giving “consumers some measure of comfort that they will not face unreasonable and unrealistic demands from copyright-based business models of suing consumers who do not profit from infringement.”[111]

However, questions were raised as to whether the non-commercial statutory damages are adequate.  One creator interest group argued that the $5,000 cap on damages for non-commercial infringement is an inadequate deterrent.[112] The argument was also made that it is nonsensical to distinguish commercial from non-commercial infringement because non-commercial infringement can be just as harmful to creators as commercial infringement: “I can take a CD, make 100 copies of it, and give it to everyone I know for Christmas.  I’m not making money off it, but that’s potentially 100 copies of the CD the artists aren’t going to sell.”[113]  Other stakeholders pointed out that small businesses with limited resources are unlikely to pursue costly litigation to enforce their rights where the maximum they could recover is $5,000: the game won’t be worth the candle.[114]  While the policy behind this amendment is to prevent exorbitant awards of damages against private individuals, some pointed out that the government was trying to solve a problem that did not exist: there was no indication that Canadian courts were awarding egregious amounts of damages.[115]  Finally, some stakeholders were concerned that “non-commercial” is an undesirably vague term which would lead to “confusion and…costly and unnecessary litigation.”[116]

On the other hand, some argued that the amendments did not go far enough to protect consumers.  The $5,000 cap on damages for non-commercial infringement applies if the rights-holder elects to receive statutory, as opposed to actual, damages “at any time before final judgement is rendered.”  The concern among some consumer groups was that rights-holders could still abuse the system by “suing consumers as a business model”: the rights-holder could demand much more than $5,000 in actual damages to induce the consumer (who likely cannot afford to defend himself or herself in court) to pay the amount as a settlement, “even if the likelihood of the rights-holder proving actual damages in this amount [in a court proceeding] would be practically zero.”[117]  If settlement on this basis was not achieved, a rights-holder could, at the last minute, elect to receive statutory damages instead, obviating the need to prove actual damages at trial.  To prevent such a strategy, an amendment was proposed to require the rights-holder to choose whether to pursue actual or statutory damages from the beginning of the proceeding, but it was not adopted.[118]

VIII.    Conclusion

Copyright law is fundamentally a “tug-of-war” between creators and users, and copyright legislation strives to strike the right balance between the two.[119]  Achieving the optimum balance can be difficult.  Parliament has enacted pro-user amendments to liberalize the Copyright Act in various ways: it expanded “fair dealing”; enabled consumers to engage in a variety of activities with respect to protected works, such as format-shifting or time-shifting, without infringing copyright; codified the “notice-and-notice” regime; and treated non-commercial infringement less harshly than commercial infringement for the purpose of statutory damages.  However, the true impact of these amendments may be limited given that Parliament also enacted robust protections for digital locks, which could have the effect of frustrating consumers’ ability to use protected material for non-infringing purposes.  As such, perhaps the wisest provision in the Copyright Act is its final one—which requires a parliamentary committee to review the legislation every five years.[120]


* Paul Schabas and Iris Fischer are lawyers, and Christopher DiMatteo was at the time of writing a summer law student, in the Media Law Group at Blake, Cassels & Graydon LLP, Toronto, Canada.

[1] Millar v. Taylor (1769), 98 ER 201 at 218, 4 Burr 2303, per Willes J.

[2] Copyright Act, RSC 1985, c C-42 [“Copyright Act”].

[3] Théberge v. Galerie d’Art du Petit Champlain Inc., 2002 SCC 34 at para 30, [2002] 2 SCR 336 [Théberge].

[4] Théberge at para 30.

[5] Théberge at para 32.

[6] Library of Parliament, “Legislative Summary, Bill C-11: An Act to amend the Copyright Act”, Publication No. 41-1-C11-E, at p. 6-7 [“Library of Parliament Legislative Summary.”]

[7] House of Commons Debates, 41st Parl, 1st Sess, No 31 (18 October 2011) at 1030 (Christian Paradis, Conservative Party of Canada).

[8] Copyright Modernization Act, SC 2012, c 20 [“Copyright Modernization Act”].

[9] Alexandra Stockwell, “Most of Copyright Modernization Act provisions now in force”, Canadian Technology & IP Law, online: http://www.canadiantechnologyiplaw.com/2012/11/articles/intellectual-property/most-of-copyright-modernization-act-provisions-now-in-force/ [Stockwell, “Copyright Modernization Act”].  The provisions implementing the new “notice-and-notice” regime for alleged online copyright infringement have yet to be proclaimed in force – see footnote 80, below.

[10] In this paper, “creators” and “rights-holders” will be used interchangeably to denote those who have rights over a given work.

[11] Sandra Rubin, “The Copyright Battle Lines are Redrawn” (May 2013) 14:7 Lexpert 40 at 42 [Rubin, “The Copyright Battle Lines are Redrawn”].

[12] Rubin, “The Copyright Battle Lines are Redrawn” at 45.

[13] Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36 at para 11, [2012] 2 SCR 326 [SOCAN].

[14] SOCAN at para 13.

[15] SOCAN at para 13.

[16] Copyright Act, ss. 29, 29.1, 29.2, as amended by the Copyright Modernization Act.  At the time of writing, no judicial decisions have yet considered the new fair dealing provisions.

[17] House of Commons, Legislative Committee on Bill C-11, Evidence, 41st Parl,1st Sess (“House of Commons, Legislative Committee on Bill C-11”) (29 February 2012) at 1715 (Sylvie Lussier, President, Société des auteurs de radio, television et cinema).

[18] House of Commons Debates, 41st Parl, 1st Sess, No 34 (21 October 2011) at 1255 (Massimo Pacetti, Liberal Party of Canada).

[19] House of Commons, Legislative Committee on Bill C-11 (28 February 2012) at 1045 (Jean Bouchard, Vice-President and General Manager, Groupe Modulo, Association nationale des éditeurs de livres).

[20] House of Commons, Legislative Committee on Bill C-11 (5 March 2012) at 1720 (Greg Hollingshead, Chair, Writers’ Union of Canada).

[21] House of Commons, Legislative Committee on Bill C-11 (28 February 2012) at 1110 (Aline Côte, President, Les Éditions Berger, Association nationale des éditeurs de livres).

[22] House of Commons, Legislative Committee on Bill C-11 (28 February 2012) at 1120 (Cynthia Andrew, Policy Analyst, Ontario Public School Boards Association, Canadian School Boards Association).

[23] House of Commons, Legislative Committee on Bill C-11 (28 February 2012) at 1045 (Jean Bouchard, Vice-President and General Manager, Groupe Modulo, Association nationale des éditeurs de livres).

[24] House of Commons, Legislative Committee on Bill C-11 (28 February 2012) at 1135 (Pierre Dionne Labelle).

[25] House of Commons Debates, 41st Parl, 1st Sess, No 31 (18 October 2011) at 1205 (Pierre Labelle, New Democratic Party of Canada).

[26] House of Commons Debates, 41st Parl, 1st Sess, No 123 (14 May 2012) at 1225 (Elizabeth May, Green Party of Canada).

[27] Michael Geist, “What the New Copyright Law Means for You”, online: http://michaelgeist.ca/content/view/6695/135 [Michael Geist, “New Copyright Law”].

[28] Library of Parliament Legislative Summary at p. 23.

[29] Michael Geist, “New Copyright Law”; SOCAN; Alberta v. Canadian Copyright Licensing Agency, 2012 SCC 37, [2012] 2 SCR 345.  For instance, in SOCAN, a collective society representing musicians argued that its members were entitled to royalties in respect of the 30-second free previews of songs offered by online music stores like iTunes.  The Supreme Court of Canada disagreed, holding that consumers used the previews for the purpose of “research”, a fair dealing purpose, and that the use was “fair.”

[30] Michael Geist, “New Copyright Law.”

[31] Library of Parliament Legislative Summary at p. 23.

[32] Copyright Act, s. 29.21.  See Lisa Macklem, “This Note’s for You – Or is It? Copyright, Music and the Internet”, (2012-2013) 4:2 Journal of International Media and Entertainment Law 249 [Lisa Macklem, “This Note’s for You”] at 253-255 for a discussion of user generated content in the form of re-mixes, “fan-videos” and “sampling” – Macklem defines the latter as taking a portion of an existing song or recorded performance and integrating it into a newly recorded performance. While Macklem discusses sampling in particular in a commercial context, one could see how this could be done for a non-commercial, personal purpose.

[33] Section 29.21 also makes clear that copyright subsists in the new work, thereby recognizing originality in user generated content – Macklem, “This Note’s for You”, at 264.

[34] House of Commons Debates, 41st Parl, 1st Sess, No 141 (15 June 2012) at 1005 (Christian Paradis, Conservative Party of Canada).

[35] House of Commons, Legislative Committee on Bill C-11 (1 March 2012) at 1100 (Jacob Glick, Canada Policy Counsel, Google Inc.).

[36] This view is discussed in Lisa Macklem, “This Note’s for You” at 250.

[37] House of Commons, Legislative Committee on Bill C-11 (29 February 2012) at 1545 (Janice Seline, Executive Director, Canadian Artists Representative Copyright Collective Inc.).  A creator’s moral rights are his or her “right to the integrity of the work and…the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous”: Copyright Act, s. 14.1(1).  For instance, the Canadian artist K’nann asserted his moral rights over his hit song Wavin’ Flag by requiring Mitt Romney’s presidential campaign to stop using it, because he “did not want to be associated in any way with that campaign”: House of Commons, Legislative Committee on Bill C-11 (29 February 2012) at 1540 (Janice Seline, Executive Director, Canadian Artists Representative Copyright Collective Inc.).

[38] House of Commons, Legislative Committee on Bill C-11 (29 February 2012) at 1535 (Robert D’Eith, Secretary, Board of Directors, Canadian Independent Music Association).

[39] House of Commons, Legislative Committee on Bill C-11 (28 February 2012) at 905 (Brian Skolnik, CEO, Canadian Federation of Musicians).

[40] House of Commons Debates, 41st Parl, 1st Sess, No 141 (15 June 2012) at 1005 (Christian Paradis, Conservative Party of Canada).

[41] An individual who makes such a reproduction has not infringed copyright provided that the original is not itself an infringement; the individual legally obtained the original and did not borrow or rent it; the individual did not circumvent a technological protection measure to make the copy (see Section 4, below); and the person does not give the reproduction away and uses it only for his or her private purposes: Copyright Act, s. 29.22(1).

[42] Copyright Act, s. 29.23(1).

[43] Copyright Act, s. 29.24(1).  This provision was briefly considered in Re Copyright Act, section 66.51, [2013] CBD No 2, 108 CPR (4th) 63 (Canada Copyright Board) at para 9.

[44] House of Commons, Legislative Committee on Bill C-11 (1 March 2012) at 1055 (Mario Chenart, President of the Board, Société professionnelle des auteurs et des compositeurs du Quebec, Coalition des ayants droit musicaux sur Internet).

[45] Copyright Act, s. 41.

[46] Michael Geist, “New Copyright Law.”

[47] House of Commons, Legislative Committee on Bill C-11 (27 February 2012) at 1550 (James Gannon, Lawyer, McCarthy Tétrault LLP).

[48] Copyright Act, s. 41.1(1).

[49] Copyright Act, s. 41.1(2), 41.1(4).

[50] See Section 7, “Statutory damages”, below.

[51] Copyright Act, s. 41.1(3).

[52] Copyright Act, s. 42(3.1).

[53] Copyright Act, s. 41.12.

[54] Copyright Act, s. 41.13.

[55] Copyright Act, s. 41.14.

[56] Copyright Act, s. 41.15.

[57] Copyright Act, s. 41.16. However, the executive branch of government has the power to make regulations to create further exceptions to the prohibition on circumventing TPMs, having regard to: whether the TPM adversely affects the authorized uses a person may make of the work; whether the work is commercially available; whether the TPM adversely affects criticism, review, news reporting, commentary, parody, satire, teaching, scholarship, or research that could be done in respect of the work; whether being permitted to circumvent the TPM could adversely affect the market for the work; whether the work is commercially available “in a medium and in a quality that is appropriate for non-profit archival, preservation or educational uses”; and “any other relevant factor”: Copyright Act, ss. 41.21(1) and 41.21(2)(a).

[58] Michael Geist, “New Copyright Law.”

[59] House of Commons Debates, 41st Parl, 1st Sess, No 141 (15 June 2012) at 1050 (David McGuinty, Liberal Party of Canada).

[60] House of Commons, Legislative Committee on Bill C-11 (29 February 2012) at 1550 (John Lawford, Counsel, Canadian Consumer Initiative).

[61] House of Commons Debates, 41st Parl, 1st Sess, No 141 (15 June 2012) at 1040 (Charlie Angus, New Democratic Party of Canada).

[62] Library of Parliament summary, p. 25.

[63] House of Commons, Legislative Committee on Bill C-11 (27 February 2012) at 1550 (James Gannon, Lawyer, McCarthy Tétrault LLP).

[64] House of Commons Debates, 41st Parl, 1st Sess, No 141 (15 June 2012) at 1310 (Scott Armstrong, Conservative Party of Canada).

[65] House of Commons Debates, 41st Parl, 1st Sess, No 141 (15 June 2012) at 1040 (Charlie Angus, New Democratic Party of Canada).

[66] Library of Parliament Legislative Summary at p. 24-25.

[67] Library of Parliament Legislative Summary at p. 24.

[68] Library of Parliament Legislative Summary at p. 25; House of Commons, Legislative Committee on Bill C-11 (29 February 2012) at 1555 (John Lawford, Counsel, Canadian Consumer Initiative).

[69] Amendments were proposed by Charlie Angus and Andrew Cash of the New Democratic Party: see House of Commons, Legislative Committee on Bill C-11 (13 March 2012) at 1000-1020 (Charlie Angus, New Democratic Party) and 1020-1025 (Andrew Cash, New Democratic Party).

[70] House of Commons, Legislative Committee on Bill C-11 (13 March 2012) at 1005 (Dean Del Mastro, Conservative Party of Canada).

[71] House of Commons, Legislative Committee on Bill C-11 (13 March 2012) at 1005 (Dean Del Mastro, Conservative Party of Canada).

[72] House of Commons, Legislative Committee on Bill C-11 (29 February 2012) at 1645 (Paul Calandra, Conservative Party of Canada).

[73] House of Commons, Legislative Committee on Bill C-11 (29 February 2012) at 1645 (Paul Calandra, Conservative Party of Canada).

[74] Copyright Act, s. 41.1(3); Rubin, “The Copyright Battle Lines are Redrawn” at 45.

[75] Copyright Act, s. 42(3.1).

[76] Michael Geist, “New Copyright Law.”

[77] Copyright Act, s. 41.25(1). This provision has yet to be proclaimed in force.

[78] Library of Parliament Legislative Summary at p. 27.  Under US law, online service providers enjoy the benefit of a “safe harbour” provision to protect them from liability for their customers’ infringement of copyright, provided that they comply with the “notice and takedown” procedure: Digital Millennium Copyright Act, 17 USC § 512(c); Bob Tarantino, “Online Infringement: Canadian ‘Notice and Notice’ vs. US ‘Notice and Takedown’”, Entertainment & Media Law Signal, online: http://www.entertainmentmedialawsignal.com/online-infringement-canadian-notice-and-notice-vs-us-notice-and-takedown/.

[79] House of Commons Debates, 41st Parl, 1st Sess, No 31 (18 October 2011) at 1050 (Hon James Moore, Conservative Party of Canada).

[80] The proclamation of the “notice-and-notice” provisions is delayed to allow the government to engage in a “consultation process and…establish…regulations that will be needed to implement the regime”: Stockwell, “Copyright Modernization Act.”

[81] Copyright Act, s. 41.25.  This provision has yet to be proclaimed in force.

[82] Copyright Act, s. 41.26(1)(a).  This provision has yet to be proclaimed in force.

[83] Copyright Act, s. 41.26(1)(b).  This provision has yet to be proclaimed in force.

[84] Copyright Act, s. 41.26(3).  The executive branch of government has the authority to make regulations to vary this amount of statutory damages, and to prescribe fees that ISPs may charge to rights-holders for complying with their notice obligations: Copyright Act, s. 41.26(2), (4). These provisions have yet to be proclaimed in force.

[85] House of Commons, Legislative Committee on Bill C-11 (29 February 2012) at 1535 (Robert D’Eith, Secretary, Board of Directors, Canadian Independent Music Association).

[86] House of Commons, Legislative Committee on Bill C-11 (29 February 2012) at 1535 (Robert D’Eith, Secretary, Board of Directors, Canadian Independent Music Association).

[87] House of Commons, Legislative Committee on Bill C-11 (29 February 2012) at 1625 (Robert D’Eith, Secretary, Board of Directors, Canadian Independent Music Association).

[88] Library of Parliament Legislative Summary at p. 27.

[89] See footnote 78, above.

[90] House of Commons, Legislative Committee on Bill C-11 (1 March 2012) at 1135 (Jacob Glick, Canada Policy Counsel, Google Inc.).

[91] Library of Parliament Legislative Summary at p. 27.

[92] House of Commons Debates, 41st Parl, 1st Sess, No 31 (18 October 2011) at 1050 (Hon James Moore, Conservative Party of Canada).

[93] Library of Parliament Legislative Summary at p. 27.

[94] Copyright Act, s. 31.1(1).

[95] Copyright Act, s. 31.1(2).

[96] Copyright Act, s. 31.1(4).

[97] House of Commons, Legislative Committee on Bill C-11 (27 February 2012) at 1555 (James Gannon, Lawyer, McCarthy Tétrault LLP).

[98] House of Commons, Legislative Committee on Bill C-11 (1 March 2012) at 1105 (Jacob Glick, Canada Policy Counsel, Google Inc.).

[99] House of Commons, Legislative Committee on Bill C-11 (1 March 2012) at 1050 (Solange Drouin, Vice-President and Executive Director, Public Affairs, Association québécoise de l’industrie du disque, du spectacle et de la vidéo, Coalition des ayants droit musicaux sur Internet).

[100] Copyright Act, s. 27(2.3).

[101] Copyright Act, s. 27(2.4).

[102] House of Commons Debates, 41st Parl, 1st Sess, No 141 (15 June 2012) at 1010 (Christian Paradis, Conservative party of Canada).

[103] House of Commons, Legislative Committee on Bill C-11 (27 February 2012) at 1555 (James Gannon, Lawyer, McCarthy Tétrault LLP).

[104] House of Commons Debates, 41st Parl, 1st Sess, No 141 (15 June 2012) at 1010 (Christian Paradis, Conservative Party of Canada).

[105] Copyright Act, s. 38.1(1), version in force prior to November 7, 2012.

[106] Copyright Act, s. 38.1(1).

[107] Copyright Act, s. 38.1(1)(a).

[108] Copyright Act, s. 38.1(1)(b).

[109] Copyright Act, s. 38.1(5).

[110] Rubin, “The Copyright Battle Lines are Redrawn” at 45.

[111] House of Commons, Legislative Committee on Bill C-11 (29 February 2012) at 1555 (John Lawford, Counsel, Canadian Consumer Initiative).

[112] House of Commons, Legislative Committee on Bill C-11 (28 February 2012) at 905 (Brian Skolnik, CEO, Canadian Federation of Musicians).

[113] House of Commons, Legislative Committee on Bill C-11 (28 February 2012) at 905 (Brian Skolnik, CEO, Canadian Federation of Musicians).

[114] See, for example, House of Commons, Legislative Committee on Bill C-11 (29 February 2012) at 1535 (Robert D’Eith, Secretary, Board of Directors, Canadian Independent Music Association).

[115] House of Commons, Legislative Committee on Bill C-11 (28 February 2012) at 0905 (Brian Skolnik, CEO, Canadian Federation of Musicians).

[116] House of Commons, Legislative Committee on Bill C-11 (6 March 2012) at 0905 (Catherine Saxberg, Executive Director, Canadian Music Publishers Association).

[117] House of Commons, Legislative Committee on Bill C-11 (29 February 2012) at 1555 (John Lawford, Counsel, Canadian Consumer Initiative).

[118] House of Commons, Legislative Committee on Bill C-11 (29 February 2012) at 1555 (John Lawford, Counsel, Canadian Consumer Initiative).

[119] Rubin, “The Copyright Battle Lines are Redrawn” at 42.

[120] Copyright Act, s. 92.

 
Joomla Templates: by JoomlaShack