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The Copyright Modernization Act: Big Changes to Copyright Law in Canada

A lot happened in the world of Canadian copyright law in the last year. We have already written about the Supreme Court of Canada’s so-called pentalogy of copyright cases, but the legal upheavals did not stop there. The Copyright Modernization Act added a slew of new rights and restrictions to the Copyright Act after nearly a decade of winding its way through Parliament in various forms. This article will cover some of the highlights.

Maksim Kabakou / Shutterstock
Maksim Kabakou / Shutterstock

Some of the most hotly-anticipated additions to the Copyright Act were the new fair dealing provisions under s. 29. Copyright aficionados have long bemoaned Canada’s limited fair dealing exceptions to copyright infringement, which are narrower than the United States’ doctrine of fair use. The list of uses of copyrighted material that may be protected by the fair dealing exception has been expanded to include education, parody and satire. The education exception is accompanied by a host of new provisions for educational institutions (ss. 30.01 – 30.04) and amendments to some existing, related provisions (ss. 29.4 – 29.9) that shield schools from claims of copyright infringement in certain circumstances.

In addition to expanding the fair dealing exception, the Copyright Act has gained new exceptions for private copying activities including time-shifting (the so-called “TiVo exception” under s. 29.23), format-shifting (s. 29.22), and making backup copies (s. 29.24). These exceptions protect people from claims of infringement for the now-commonplace activities of copying materials for later viewing, copying materials from one device to another, and backing materials up. However, for these exceptions to apply, the material being copied must have been acquired legally, the user must not have broken a digital lock, and the user cannot give the copy away. Other restrictions may also apply – for example, the time-shifting exception does not apply to on-demand content.

A new exception for a particular kind of non-private copying has also been introduced. The user-generated content exception (s. 29.21, better-known as the “mash-up exception” or the “YouTube exception”) allows people to take copyrighted content and use it in new works without a license. For this exception to apply, the new work must be used for solely non-commercial purposes, the source of content being used must be mentioned in the new work (along with the author, performer, maker or broadcaster of the content, if listed in the source), the creator of the new work must have reasonable grounds to believe that the content being copied did not itself infringe copyright, and the new work must not have a substantial adverse effect on the original work. The aim of this provision is to enable Internet-savvy Canadians to use existing content to create new content and share it with others (e.g. via social media) without fearing claims of copyright infringement.

The above exceptions are all directed at limiting the cases in which individuals and educational institutions can be found liable for copyright infringement, but there are also new provisions protecting individuals who are found liable for copyright infringement. Previously, copyright owners could obtain statutory damages of $500 to $20,000 per infringement without having to prove that they had suffered actual damage. Now, under s. 38.1(b), copyright owners may only seek statutory damages of $100 to $5000 for all of a person’s non-commercial infringements (not per infringement). Commercial infringements are still subject to the old statutory damages scheme.

Not every addition to the Copyright Act is aimed at shielding consumers from potential liability for infringing copyright. Perhaps the most controversial additions to Canadian copyright law are the new anti-circumvention provisions (ss. 41 – 41.22). A person who circumvents a “technological protection measure” (TPM) that controls access to a work may now be liable as if they had infringed copyright, with the important caveat that no statutory damages may be awarded if the infringement was for an individual’s private purposes (s. 41.1). Persons who provide services or devices that enable other people to circumvent TPMs are similarly liable, although they are not shielded from statutory damages. Knowingly circumventing TPMs for commercial purposes also carries criminal liability of up to $1 million and up to 5 years in prison under s. 42(3.1).

A TPM is any technology, device or component that controls access to a work or prevents certain uses of a work; examples include passwords, encryption (like that found on most DVDs and in some digital media such as music or e-books) and product keys. Although there are many exceptions to the prohibition against circumventing TPMs, including exceptions for law enforcement, encryption researchers, broadcasters, unlocking mobile phones, personal privacy concerns, and persons with perceptual disabilities, there is no general exception covering circumventions for private or personal use. Regulations promulgated under s. 41.21 may add additional exceptions to the anti-circumvention provisions.

These are just some of the most high-profile amendments. The Copyright Modernization Act introduces many other changes to the Copyright Act, including new protections for internet service providers, implementation of international copyright treaties, new rules for ownership of copyright in photographs, the creation of moral rights for performers, new “making available” and distribution rights for rights-holders, and more.

By Jennifer A. Marles and Christopher C. Scott

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