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Third time’s a charm? Canadian Copyright Act reform bill tabled on June 2, 2010 — by Mala Joshi and Paul Tackaberry

On June 2, 2010, Industry Minister Tony Clement and Heritage Minister James Moore introduced the Copyright Modernization Act (otherwise known as Bill C-32) for its first reading before the House of Commons. Bill C-32 has been billed as an attempt to modernize the outdated Canadian Copyright Act (“Act”) following years of failed attempts.

The proposed amendments at a glance

Key highlights of the proposed amendments to the Act are as follows:

  • Digital lock provisions would make removing a technological lock in order to transfer legally acquired copyright material, such as CDs or DVDs, onto multiple digital devices a civil offense. There is some concern that the very use of a digital lock effectively trumps all other rights.
  • Format shifting (or the copying of content from one device to another, such as a CD to a computer or an MP3 player) would be legalized.
  • Internet Service Providers (ISPs) and search engines would be immune from the copyright violations of their users.
  • Implementation of a “notice-and-notice” system where copyright holders may inform ISPs of possible piracy by their customers. In turn, the ISP would have to notify the customer that he or she was violating the law and then the ISP could release the violator’s personal information to the copyright holder with a court order.
  • Statutory damages would be reduced from the maximum current punishment of C$20,000 for a single offense to between C$100 and C$5,000 for non-commercial use.
  • Time shifting (such as recording television programs for later viewing) would be permitted, but not for the purposes of building up a library.
  • Inclusion of a “You Tube exception” that would grant Canadians the right to create remixed user generated content for non-commercial purposes under certain circumstances.
  • New exceptions to fair dealing that will allow copyright violations for the purposes of parody, satire and education under certain circumstances.

Background leading up to the current reforms

The Act1 has been in force since 1924, enacted and developed at a time when airmail service was in its infancy. Despite the intervening advent of television, photocopiers, fax machines, and personal computers, the Act was only partially amended in 1989 and at a few times thereafter. None of the reforms ever resulted in the rewriting of the Act; instead, the amendments were grafted onto the structure of the 1924 Act.

Despite the fact that Canada signed the World Intellectual Property Organization (“WIPO”) Copyright Treaty and the WIPO Performances and Phonograms Treaty (collectively “WIPO Internet Treaties”) in 1997, Canadian copyright laws are seriously outdated, particularly in view of the dizzying pace of technological advances in the current digital era. The WIPO Internet Treaties required Canada to, among other things, create several new rights for copyright holders, including prohibitions against the circumvention of “technological protection measures” (TPMs) used by copyright holders, also known as “digital rights management” (DRM).

Despite several attempts over the intervening years, Canada has been unable to implement the WIPO Internet Treaties by amending its copyright laws. Tabled in 2005, Bill C-60 would have implemented all the rights and protections provided for in the WIPO Internet Treaties. Before the bill was passed, an election was called and the bill died on the table. In 2008, the Government introduced Bill C-61, which was similar to Bill C-60 in that it would have also implemented the rights and protections in the WIPO Internet Treaties. It also shared the same fate as Bill C-60 as it died as a victim of another Canadian election call.

In the summer of 2009, the Government initiated the Copyright Consultations, which involved a series of cross-Canada Town Halls and Round Tables where stakeholders were invited to comment in person and online on Canadian copyright law reform. Following Parliamentary delays, the Government finally tabled Bill C-32 on June 2.

Canada has also been under great pressure from the United States to ratify the 1997 WIPO treaties and crack down on the piracy of copyrighted music, movies and other digital media. Commentary on Bill C-32 contains some speculation that in spite of a desire for a balanced and flexible fair-dealing approach, the proposed reforms mainly reflect the influence of U.S. pressure toward rights-based digital lock provisions.

What to expect next

As Bill C-32 is only at the first reading stage, the implementation of the proposed amendments is a long way off.  No date for the second reading has been set to debate the principle of the bill; however there has been some speculation that the Government is considering sending the bill to a legislative committee over the summer of 2010. For a number of reasons, it is difficult to predict whether Bill C-32 will become law, or whether it will suffer the same fate as its recent predecessors. Parliament is preparing to recess for the summer break and the present Canadian Government is a minority government which could be launched into an election at any time.

This article is for information purposes only and does not constitute legal or professional advice.

R.S.C. 1985, c. C-42