On June 2, 2010, the government of Canada introduced Bill C-32, which aims to modernize Canada’s Copyright Act to better address the challenges and opportunities presented by the digital technologies of the information age. This Bill is the Canadian government’s third attempt at modernizing Canada’s copyright laws. In 2005, the Liberal government introduced Bill C-60, which died when Parliament was dissolved in the fall of that year. In 2008, the Conservative government introduced Bill C-61, which also died when Parliament was prorogued later that year.
More specifically, Bill C-32 proposes to amend the Copyright Act to provide some of the following measures.
Protection against circumvention of Technological Protection Measures. Technological Protection Measures (TPMs), also known as “digital locks,” are software-implemented mechanisms that are intended to limit the unauthorized use, copying or transcoding of digitally distributed content. Examples of TPMs include the encryption systems that cable and satellite companies use to limit access to certain channels to paying subscribers and the encryption systems used to prevent an individual from copying a movie from a DVD to a home computer.
Bill C-32 would amend the Copyright Act to prohibit the circumvention of a TPM, the offering of services provided primarily for the purpose of circumventing a TPM, and the manufacturing, importing or providing of any technology, device or component produced primarily for the purpose of circumventing a TPM.
The Bill contains exceptions to the prohibitions on circumvention to allow for, among other things: making a computer program interoperable with another computer program, carrying out encryption research, assessing and correcting security vulnerabilities of computer systems, enabling persons with perceptual abilities to access materials, and determining whether a TPM allows personal information to be gathered.
Expanded secondary infringement. The existing secondary infringement provisions of the Copyright Act prohibit selling, renting, distributing or importing works that infringe copyright in Canada. Bill C-32 would extend the secondary infringement provisions to specifically include online services. Specifically, the Bill creates a new cause of action against a person who provides, by means of the internet or another digital network, a service that the person knows or should have known is designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs as a result of the use of that service. The new provisions are aimed at illegitimate online file-sharing services, including illegal peer-to-peer file sharing sites. The Bill provides guidance for distinguishing between legitimate and illegitimate service providers through the following non-exhaustive set of factors:
- whether the person expressly or implicitly marketed or promoted the service as one that could be used to enable acts of copyright infringement;
- whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement;
- whether the service has significant uses other than to enable acts of copyright infringement;
- the person’s ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so;
- any benefits the person received as a result of enabling the acts of copyright infringement; and,
- the economic viability of the provision of the service if it were not used to enable acts of copyright infringement.
Clarification of the roles and responsibilities of network service providers. Bill C-32 would amend the Copyright Act to add a general provision that persons who, in providing services related to the operation of the internet or another digital network provide any means for the telecommunication or the reproduction of a work, do not solely by reason of providing those means infringe copyright in that work.
Bill C-32 would also specifically provide that service providers who cache a work or who provide digital memory in which another person stores the work do not by virtue of that act alone infringe copyright in that work.
Nonetheless, the network service providers as well as providers of information location tools would be required to comply with a mandatory "notice-and-notice" regime in response to complaints from rights holders about allegedly infringing activity by end users. Specifically, under this regime, a service provider who receives a notice from an owner of a copyrighted work alleging that one of the service provider's subscribers (identified by an electronic location) is engaged in infringing activity must forward that notice to the identified subscriber. The service provider may charge a fee for doing so. The provider is not required to disclose the identity of the subscriber but must retain records for six months that will allow the identity of the person to whom the electronic location belongs to be determined. If the notice is not sent, the copyright owner’s only remedy against the service provider is statutory damages in an amount that the Court considers just, but not less than $5,000 and not more than $10,000.
Limitation of statutory damages in non-commercial cases. Bill C-32 would institute a cap on statutory damages in the case of non-commercial copyright infringement by individuals. Specifically, the Court would have the discretion to impose statutory damages ranging from a minimum of $100 to a maximum of $5,000 for all works, as opposed to a maximum of $20,000 per work, as currently applies for both commercial and non-commercial cases of infringement by individuals.
Exceptions for certain non-commercial private uses of copyrighted material. The Bill gives consumers the ability, under certain circumstances, to:
- copy content from one medium or device to another (i.e. format shift) — for example, copying the contents of a music CD to an MP3 player;
- record content for later viewing or listening (i.e. time shift) — for example, recording a TV show for later viewing;
- reproduce content for backup purposes;
- create and upload “mash-ups” and other new works using existing works.
Persons carrying out the above activities would not be liable for copyright infringement if they perform these acts for their private use and have not broken a TPM or “digital lock.” to do so. These exceptions are technologically neutral, meaning that the Bill does not restrict the types of devices and formats that can be used.
The Bill also ensures that digital locks on wireless devices will not prevent Canadians from switching between wireless service providers. This will not affect any obligations under an existing contract.
Other exceptions. The Bill would also create new exceptions to permit, in certain circumstances:
- temporary reproduction of a work where the reproduction forms an essential part of a technological process, the reproduction’s only purpose is to facilitate a use that is not an infringement of copyright, and the reproduction exists only for the duration of the technological process;
- reproduction of a work for the purpose of encryption research if it would not be practical to carry out the research without making the copy, the work was lawfully obtained, and the owner of the copyrighted work has been informed;
- reproduction of a work for the sole purpose, with the consent of the owner or administrator of a computer, computer system or computer network, of assessing the vulnerability of the computer, system or network or of correcting any security flaws;
- reproduction of a work by a non-profit organization acting for the benefit of persons with a print disability, in a format specially designed for persons with a print disability, and sending the copy to a non-profit organization in another country for use by persons with print disabilities in that country.
In addition, the Bill would create three new categories of fair-dealing exceptions: education, parody and satire. These would be in addition to the existing fair-dealing exceptions, namely research and private study, criticism and review, and news reporting. Specific guidelines are not given for these new fair-dealing exceptions.
Like its predecessors, Bill C-32 has come under criticism from various stakeholder groups. One of the more controversial elements of the Bill is its TPM regime, which some argue undermines consumer rights such as the proposed private copying exceptions. Others have expressed concern regarding the “notice-and-notice” regime in the Bill and the ability to enforce against online infringement of copyright in a cost-effective manner.
While Bill C-32 represents a fair attempt to address complex technological challenges while balancing the competing interests of various stakeholder groups, the Bill will likely nevertheless require further fine-tuning, and its scrutiny will continue for months to come.
Daniel S. Faya, Toronto
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