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A Big Year for Copyright in Canada

It is shaping up to be an exciting year for copyright law in Canada. On December 6 and 7, 2011, the Supreme Court of Canada heard appeals in five decisions arising from the Copyright Board of Canada. Having the Court grant leave to hear so many appeals in the area of copyright law at one time is unprecedented.

The appeals deal with a diverse range of issues, including fair dealing (examining whether previews of musical works by consumers prior to purchasing a musical work for downloading is fair dealing, and considering the scope of the fair dealing exception allowing educational institutions to make copies as required for a test or examination where a work is not commercially available in a medium that is appropriate for the purpose), telecommunication to the public (whether downloading a musical work contained within a video game is a communication to the public of that musical work, and whether a download of a musical work is a communication to the public of that musical work), and the rights of performers and makers of sound recordings to equitable remuneration for the public performance of sound recordings incorporated into cinematographic works (which turns on a technical interpretation of the definition of sound recording in the Copyright Act). Decisions in these appeals could be released as early as mid-2012.

Depending on the outcome of these appeals, these cases have the potential to significantly clarify Canadian copyright law. In addition to anticipated developments in the case law arising from these appeals, it is widely anticipated that Bill C-11, the government’s most recent attempt to modernize the Copyright Act, will pass under the majority Conservative government. Bill C-11 aims to bring Canada’s copyright legislation into the digital era, and would add a number of new provisions to the Copyright Act, including broad fair dealing exceptions for the purposes of education, parody and satire, and more narrow fair dealing exceptions the sharing of user-generated content, for making private copies of materials for personal use, and for making recordings of a broadcast for later viewing. Bill C-11 would also add provisions that prohibit circumvention of technological protection measures (so-called “digital locks”), and these provisions have attracted a great deal of criticism from commentators.

Stay tuned for further developments.


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