Over 10 years after the World Intellectual Property Organisation (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty came into force - and following three failed attempts by Canadian governments to amend the Copyright Act in order to comply with these treaties - the Canadian government has finally passed the Copyright Modernisation Act. The act, which includes provisions required to ratify the WIPO treaties, as well as other amendments to the Copyright Act, received a 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 the following:

  • Copyright in photographs - previously 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 had been commissioned, the commissioning party was deemed to be the first copyright owner. That section of the act has now been repealed and the general law regarding copyright ownership applies. However, it is subject to an exception to infringement for the commissioning party 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. In addition, the amendment provides moral rights for performers, as well as adding detailed provisions regarding requirements for subsistence and remuneration in respect of copyright in 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 exception for research and private study purposes. Exceptions are also 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. The act further 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 typically require that there have been no further 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 the reproduction of a work over the Internet or another network. The provisions make it clear that it is not an infringement of copyright simply to act as an intermediary providing the means for operation of the Internet, including caching and unknowingly hosting infringing content. However, the so-called 'network services exceptions' are subject to an added provision that expressly states that it is an infringement for a person to provide a service "primarily for the purpose of enabling acts of copyright infringement". 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 automatically be read and executed by the service provider. In respect of a provider of digital memory accessible through 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 C$500 to C$20,000 per work infringed. It amends those provisions so that the existing level of statutory damages applies to infringements for commercial purposes only and provides statutory damages of C$100 to C$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 measure 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, another aspect of the act is worth noting. Specifically, the act calls for a review five years after the date on which it 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 further information on this topic please contact Brian P Isaac at Smart & Biggar/Fetherstonhaugh by telephone (+1 416 593 5514), fax (+1 416 591 1690) or email ([email protected]).