Canada’s Intellectual Property Firm

Over 10 years after the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty came into force, and after three failed attempts by Canadian governments to amend the Copyright Act in order to comply with the treaties, the Government of Canada has finally passed the Copyright Modernization Act ("the Act"). The Act, which includes provisions required to ratify the WIPO treaties as well as other amendments to the Copyright Act, received third reading in the Senate and Royal Assent on June 29, 2012.

The Act includes numerous amendments to the Copyright Act, the first substantial amendments in over 10 years. Key provisions include:

  • Copyright in photographs. Prior to the amendments there were special provisions dealing with ownership and the term of copyright in photographs. For instance, with respect to "an engraving, photograph or portrait" that was commissioned, the commissioning person was deemed to be the first owner of copyright. That section has now been repealed and the general law regarding ownership of copyright in works applies, albeit subject to an exception to infringement for the commissioning person using the photograph for non-commercial purposes.

  • Performers and sound recorders rights. Performers are granted copyright in their performances, providing them with the sole right to make recordings of their performances available to the public. The amendment also provides moral rights for performers as well as adding detailed provisions regarding requirements for subsistence and remuneration in respect of copyright in performers' performances and sound recordings.

  • Exceptions to infringement. The Act adds or clarifies various exceptions to infringement. For instance, the general fair dealing exception is broadened by adding fair dealing for the purposes of education, and parody or satire, to the prior exceptions for research and private study purposes. Further, exceptions are added for "non-commercial user generated content," reproduction for private purposes, time-shifting, back-up copies, and clarification of and additions to the various exceptions from infringement relating to educational institutions, libraries, archives and perceptual disabilities. Further, the Act clarifies and adds to the exceptions relating to technological issues such as interoperability research and security. The exceptions generally make it clear that all permitted uses are subject to ownership of a legal copy and generally require that there has been no circumvention of technological protection measures.

  • Internet service provider safe harbour. Essentially codifying judicial interpretation of an existing general communication safe harbour clause, the Act adds specific exceptions to infringement resulting from the mere provision of means for telecommunication or reproduction of a work over the internet or other network. The new provisions make it clear that it is not an infringement of copyright to simply act as an intermediary providing the means for operation of the internet, including the acts of caching and unknowingly hosting infringing content. However, the so-called “network services” exceptions are subject to an added provision expressly stating that it is infringement for a person to provide a service "primarily for the purpose of enabling acts of copyright infringement." Further, the limitations on liability are subject to the service provider ensuring that any directions relating to caching specified in a digital work are followed if they are industry standard notices that may be automatically read and executed by the service provider. In respect of a provider of digital memory accessible from the internet, the limitations do not apply if the service provider has knowledge of a court decision that a person storing the work infringes copyright. Filling out the internet service provider's safe harbour provisions, the Act also provides for a notice and notice system whereby service providers must pass on notices of alleged infringement and retain information relating to the alleged infringer.

  • Statutory damages. The Copyright Act includes provisions providing statutory damages from $500 to $20,000 per work infringed. The Act amends those provisions such that the existing level of statutory damages only applies to infringements for commercial purposes. The Act provides statutory damages of $100 to $5,000 for "all infringements involved in the proceedings" where the infringement is non-commercial.

  • Technological protective measures. The Act adds strong protection for technological protective measures and rights management information. Civil and criminal provisions are added to allow copyright owners to prevent circumvention of technological protective measures and removal of rights management information included to prevent and track infringing uses of works.

The amendments provide a system for addressing digital piracy, with the apparent emphasis on technological protective measures and providing the ability to pursue service providers offering a service primarily directed to enabling copyright infringement. While one can query whether a one-size-fits-all "notice and notice" system will be effective in light of the strong anti-circumvention provisions and other exceptions to the exceptions from infringement, one other aspect of the Act is worth noting. Specifically, the Act calls for a review five years after the date on which the Act comes into force, indicating an intention by the government to continue monitoring the situation and trying to ensure a robust copyright system in Canada.

For more information, please contact Elliott S. Simcoe or Christian Bolduc.

The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.