As we noted in our post on July 3, the Copyright Modernization Act  had received royal assent, but would not come into force until an Order-in-Council was issued. This has now happened: on November 7, 2012, most of the new provisions of, and amendments to, the Canadian Copyright Act came into force as a result of the publication in the Canada Gazette of Order SI/2012-85. The Order also specified that certain provisions, which relate to the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty, will come into force when those treaties are ratified by Canada.

A notable exclusion from the Order is the “Notice-and-Notice” regime (the future sections 41.25, 41.26 and 41.27(3) of the Copyright Act), which will only come into force after a consultation process and the establishment of regulations that will be needed to implement the regime. The Canadian “Notice-and-Notice” regime, which differs from the “Notice-and-Take-Down” rules in the United States, will oblige Internet Service Providers (ISPs), after being notified of infringement allegations by a rights holder, to notify the relevant subscriber of the allegations received.  ISPs will also be required to retain records that would enable the identification of the subscriber allegedly engaged in the infringing activity for a period of six months (or one year, if infringement proceedings are commenced in respect of the claimed infringement within six months of the initial notice from the rights holder). Once the regulations are ready, the date when the “Notice-and-Notice” provisions come into force will be published in a separate Order-in-Council.

The new provisions that are now in force include the following:  

  • Protection of Digital Rights Management (DRM). Also known as “technical protection measures” or, more commonly as “digital locks”, DRM is built into digital music, DVDs, and other media and technology products to ensure that they are not subject to unauthorized copying. The amendments include anti-circumvention provisions that prohibit the removal or tampering with DRM. The new provisions also prevent the removal of, or tampering with, Rights Management Information, which is used to identify the rights holders of an original work or to outline restrictions on use of the copyrighted work.  
  • Reproduction for private purposes. Provisions have been added to the Copyright Act to allow individual Canadians to make copies of music and other copyrighted material if the original copy is not an infringing copy, the individual legally obtained the original copy other than by borrowing it or renting it, and the individual owns or is authorized to use the medium or device onto which the copy is reproduced (such as a computer, iPod or MP3 player) and as long as a digital lock is not picked in making the copy. The reproduction may only be used for private purposes and cannot be given away, sold or rented without first destroying all reproductions of the original copy. In addition, these provisions do not apply if the reproduction is made onto a medium that is governed by the private copying provisions currently found at Part VIII of the Copyright Act, such as CD-Rs.  
  • Education exemptions. Provisions have been added to the Copyright Act to make it legal for students at schools and higher learning institutions to download copyrighted information for the purpose of study and research. The provisions permit schools to transmit materials used in classrooms to students located off-campus to facilitate learning, as long as the material is restricted to students.  In addition, teachers and students are allowed to use copyrighted material in lessons conducted over the Internet. This applies both to teachers and students in a physical classroom and those who may be viewing recordings of the lessons over the Internet at a later time. Teachers can also digitally deliver course content to students, subject to fair compensation to copyright owners.   
  • Time-shifting provisions have been added which finally legitimize the decades long practice of viewers making one recording of communication signals or programs for private purposes. The time-shifting recording must be obtained from a legal source and used only for private purposes. As well, technical protection measures could not be circumvented to make the recording, and the recording cannot be kept “longer than is reasonably necessary in order to listen to or view the program at a more convenient time”.  
  • Statutory damages for non-commercial infringement have been lowered from the previous maximum of $20,000.00 for infringement of each protected work, to a new maximum of $5,000.00 in respect of all infringements involved in the proceedings for all works or other subject-matter.  Moreover, if a plaintiff elects statutory damages for non-commercial infringements, it will be barred from collecting statutory damages from that defendant for any other non-commercial infringements occurring before the proceeding began, and no other copyright owner may elect statutory damages against that defendant for non-commercial infringements that were done before the initiation of the proceedings in which statutory damages were elected.  
  • Expanded fair dealing exceptions. Fair dealing, which permits use of a copyrighted work without permission of the copyright owner, has been expanded to include uses for the purposes of education, parody or satire in addition to prior fair use exemptions such as use for research or private study.  While procedurally, a defendant is required to prove that his or her dealing with a work has been fair, the Supreme Court of Canada has noted (most recently in Alberta (Minister of Education) v. Canadian Copyright Licensing Agency, which we wrote about here) that a fair dealing exception is a user’s right, and should not be interpreted restrictively.     
  • A new non-commercial “mash-up” exemption, exempting from copyright infringement the use of pre-existing works to create new non-commercial works, defined as “user-generated content”. This exemption is only available if the use of the copyrighted work is done solely for non-commercial purposes and does not have a substantial adverse effect (financial or otherwise) on the exploitation of the existing work (including that the new work isn’t a substitute for the existing one), and provided that the individual making the new work reasonably believes that the source material is not itself infringing copyright and that there is a mention (if it is reasonable in the circumstances) of the sources of the works incorporated in the new work.
  • Also effective November 7, 2012, engravers, photographers and portraitists will be the default owners of copyright in the engravings, photographs and portraits they create on commission, unless there is an agreement to the contrary.  This is the result of the repeal of section 13(2) of the Copyright Act, which provided that a person who commissions an engraving, photograph or portrait is the first owner of copyright of those types of works.