On November 7, 2012, the Governor General in Council proclaimed many of the provisions of the Copyright Modernization Act into force, triggering substantial changes to the Canadian copyright regime.
Provisions Now In Force
The following is a brief overview of the significant provisions that have been proclaimed into force.
Photographs Commissioned by Others:
Photographers are now the first owner of copyright, like all other authors, unless the author is an employee.
Performers’ Moral Rights:
Performers’ moral rights to their performances are expanded. Now, a performer will enjoy the moral rights in his or her performance for so long as the performer has the copyright in such performance.
It is now an infringement of copyright for a person to provide an Internet-based service primarily for the purpose of enabling acts of copyright infringement.
The fair dealing exception is expanded to include education, parody and satire.
Non-Commercial User-Generated Content (UGC):
It is not an infringement of copyright for an individual to use, in a non-commercial context, a publicly-available work for the purpose of creating a new work. This exception is subject to various conditions: (1) the source (and, if given in the source, the name of the author, performer, maker or broadcaster) of the existing work must be mentioned where it is reasonable to do so; (2) the individual must have had reasonable grounds to believe that the existing work was not infringing copyright; and (3) the use of, or the authorization to disseminate, the new work must not have a substantial adverse effect – which effect is notably not limited to financial impact – on the exploitation or potential exploitation of the existing work.
Format-Shifting / “Private Purposes” Exemptions:
It is not an infringement of copyright for an individual to reproduce a work or any substantial part of a work, provided that: (1) the copy of the work from which the reproduction is made is not an infringing copy, (2) the individual legally obtained the copy of the work from which the copy is made, and (3) the reproduction is used only for the individual’s private purposes.
Individuals are now permitted to fix an audio signal or to record a program for later listening or viewing, provided that the signal or program is received legally, only one recording is made, the recording is used for private purposes and is not distributed, and the recording is only kept for so long as is reasonably necessary in order to listen to or view the program at a more convenient time.
It is also now legal for an individual who owns (or has a licence to use) a protected work to reproduce the source copy of such work, provided the individual does so solely for backup purposes (in the event the source copy is lost, damaged or otherwise rendered unusable), the source copy is not an infringing copy, and the person does not give the reproduction away.
The above three “private purposes” exemptions notably do not apply to works protected by technological protection measures or “TPMs.” An individual is now prohibited from circumventing a TPM, even where the work that is subject to the TPM has been legally acquired.
Damages for Reverse Engineering Technological Protection Measures:
Where an individual contravenes a TPM for commercial purposes, there may be criminal consequences, with penalties of a fine not exceeding $1,000,000 or imprisonment for a term not exceeding five years, or both, if convicted on indictment, and a fine not exceeding $25,000 or imprisonment for a term not exceeding six months, or both, upon summary conviction, with some statutory exceptions.
The new provisions provide that a copyright owner may recover between $500 and $20,000 for each work in the event of infringements for commercial purposes, and between $100 and $5,000 for all works in the event of infringements for non-commercial purposes.
Provisions Not Yet In Force
Likely awaiting the promulgation of regulations is the notice & notice provisions of the Act, and treaty implementation provisions.
The notice-and-notice regime, set out in section 47 of the Copyright Modernization Act, provides that an owner of the copyright in a work or other subject-matter may send a notice of claimed infringement to an online service provider whose subscriber has uploaded the allegedly infringing content, and the online service provider will be required to notify the subscriber of the notice of claimed infringement. This regime is notably different from the notice-and-takedown mechanism, which is currently required under the United States Digital Millennium Copyright Act, and which requires an online service provider whose subscriber has uploaded allegedly infringing content to take down such content upon receipt of a notice of claimed infringement.
The entirety of the Copyright Modernization Act may be consulted on the Parliament of Canada’s website.