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Gowlings will be issuing an IP Report summarizing key areas of reform important to our clients with respect to the reintroduction of the Copyright Modernization Act. Look for this alert as a SPECIAL EDITION Government Briefing Bulletin coming soon, or subscribe to receive IP Report Online.

The following release was issued by Industry Canada

Harper Government Delivers on Commitment to Reintroduce Copyright Modernization Act Speech: Remarks Announcing the Reintroduction of the Copyright Modernization Act Ottawa, September 29, 2011 — The Honourable Christian Paradis, Minister of Industry, and the Honourable James Moore, Minister of Canadian Heritage and Official Languages, today announced the reintroduction of the Government of Canada's Copyright Modernization Act.

Recognizing the critical role a modern copyright regime plays in Canada's digital economy, the Government is delivering on its commitment in the 2011 Speech from the Throne to introduce and seek swift passage of copyright legislation that balances the needs of creators and users. This legislation will ensure that Canada's copyright laws are modern, flexible, and in line with current international standards.

"Canadians will soon have modern copyright laws that protect and help create jobs, promote innovation, and attract new investment to Canada," said Minister Paradis. "We are confident that this bill will make Canada's copyright laws forward-looking and responsive in this fast-paced digital world."

"Our Government received a strong mandate from Canadians to put in place measures to ensure Canada's digital economy remains strong," said Minister Moore. "Our Government recognizes how new technologies are changing the lives of many Canadians. This bill delivers a common-sense balance between the interests of consumers and the rights of the creative community."

Modernizing Canada's copyright laws is an important part of the Government's strategy for the digital economy. Each year that Canada goes without modern copyright laws, the need for such modernization becomes more evident. The explosive popularity of social media and new technologies — such as tablet computers, mobile devices and digital book readers — has changed the way Canadians create and use copyrighted material.

This bill recognizes the many new ways in which teachers, students, artists, companies, consumers, families, and copyright owners use technology. It gives creators and copyright owners the tools to protect their work and to grow their businesses using new and innovative business models. It provides clearer rules that will enable all Canadians to fully participate in the digital economy, now and into the future.

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In the 2011 Speech from the Throne, the Government of Canada committed itself to reintroduce and seek swift passage of legislation to modernize Canada's copyright law in a way that balances the needs of creators and users. This bill fulfils that promise.

Review of the Copyright Modernization Act began in the last Parliament. Before being dissolved, the legislative committee studying the bill heard from more than 70 witnesses and received more than 150 written submissions. Over the course of the hearings, there were two clear messages that emerged: first, that this bill balances the interests of the various stakeholders; and second, that Canada urgently needs to pass legislation to update the Copyright Act . By re-introducing this bill without changes, the Government is reiterating its support for a balanced approach to copyright reform and enabling Parliamentarians to pick up where the last committee left off.

What the bill will do

This bill will implement the rights and protections of the World Intellectual Property Organization (WIPO) Internet treaties and give Canadian creators and consumers the tools they need to remain competitive internationally. The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, negotiated in 1996, established new rights and protections for authors, sound recording makers and performers of audio works.

Through this legislation, the Government will:

  • modernize the Copyright Act to bring it in line with advances in technology and international standards;
  • advance the interests of Canadians, from those who create content to the consumers who benefit from it; provide a framework that is forward-looking and flexible, and that will help protect and create jobs, stimulate the Canadian economy, and attract new investment to Canada; and
  • establish rules that are technologically neutral, so they are flexible enough to evolve with changing technologies and the digital economy, while ensuring appropriate protection for both creators and users. The following is a summary of what the provisions of the Copyright Modernization Act mean for Canadians.

Creators, performers, and copyright owners

New rights for Canadian creators

Canadian creators, performers, and artists will benefit from the full range of rights and protections in the WIPO Internet treaties, including an exclusive right to control how their copyrighted material is made available on the Internet.

In addition, the term of copyright protection for sound recordings for performers and producers will be set at 50 years from the time of publication of a musical performance.

The bill makes photographers the first owner of copyright on their photographs, which will be protected for 50 years after the death of the photographer. People who commission photographs will be able to make personal or non-commercial use of the photos unless there is a contract that specifies otherwise.

Protecting the incentive to create Provisions in the bill strengthen the ability of copyright owners to control the uses of their online works in order to prevent widespread illicit use and to promote creativity, innovation, and legitimate business models. Such provisions include legal protection for rights management information and a new category of civil liability that targets those who enable online piracy.

Copyright owners who choose to apply technological protection measures (TPMs), such as digital locks, to prevent unauthorized access to copyrighted material will benefit from new protection against circumvention, or breaking locks. New rules will also prevent the manufacture, importation, and sale of devices that can break digital locks.

Users and consumers

Legitimizing Canadians' everyday activities

Canadians will be able to record television, radio, and Internet programming in order to enjoy it at a later time, with no restrictions as to the device or medium they wish to use. Canadians will also be able to copy any legitimately acquired music, film, or other works onto any device or medium (such as MP3 players) for their private use, and make backup copies of these works. These provisions do not apply to on-demand services or to material protected by a digital lock.

Canadians will also be able to incorporate existing copyrighted material in the creation of new works, such as Internet mash-ups, as long as:

  • it is done for non-commercial purposes;
  • the existing material was legitimately acquired; and
  • the work they create is not a substitute for the original material, and does not have a substantial negative impact on the markets for the original material, or on the creator's reputation.

Canadians with perceptual disabilities will be permitted to adapt legally acquired material to a format that they can easily use. The changes also clarify the law regarding the import of adapted material into Canada and explicitly permit the export of certain adapted materials, including braille and audio books.

Protecting Canadians from unreasonable penalties The bill revises the current provisions for statutory damages to distinguish between commercial and non-commercial infringement, with the latter being subject to reduced statutory damages (that is, pre-established damages in civil litigation). The legislation also introduces the concept of proportionality in statutory damages.

Innovative businesses

Clear copyright rules to encourage innovation

For technology companies, the bill will include measures to enable activities related to reverse engineering for software interoperability, security testing and encryption research, including the circumvention of digital locks for these purposes.

The bill clarifies that the making of temporary, technical and incidental reproductions of copyrighted material as part of a technological process is allowed.

Educators and researchers

More options for educators

The bill includes a change to the provisions for fair dealing that will enable the use of copyrighted materials for the purpose of education in a structured context, in a manner that takes into consideration the legitimate interests of the copyright owner. In addition to education, parody and satire have likewise been added as new purposes for fair dealing.

The Bill introduces new measures aimed at enriching the educational experience, notably by facilitating use of the latest technologies when appropriate measures have been adopted to prevent abuse, as required:

  • Teachers and students will be allowed to use copyrighted material in lessons conducted over the Internet. The amendments would apply to teachers and students who are in the physical classroom as well as to those who are participating in the lessons or viewing recordings of the lessons afterwards using Internet technology. For example, this allows music students—both those in the classroom and those who are participating from a remote location—to perform a copyright-protected song together as part of a lesson.
  • Teachers will be allowed to digitally deliver course materials to students, subject to fair compensation to copyright owners. Students will be allowed to print a single copy of these course materials.
  • For educational and training purposes, teachers and students will be allowed to use material that they find on the Internet as long as it is has been legitimately posted there by copyright owners without expectation of compensation. For example, teachers and students could make multiple copies of articles found on the Internet and distribute them to classmates.

The bill also adjusts existing provisions to make them more technologically neutral.

  • The existing provisions that allow parts of a work to be copied for display to students will be amended so that they are no longer linked to specific technologies, such as flip charts and overhead projectors.
  • The existing provisions that allow certain copyright material, such as a play, to be performed in the classroom will now be extended to allow teachers and students to watch legitimately acquired films and other audiovisual works.
  • A school will no longer be required to pay copyright royalties to record a broadcast of a current affairs program, with the exception of documentaries, for educational purposes.

Libraries, archives, and museums.

Librarians will be allowed to digitize print material and then send a copy electronically to a library client through an interlibrary loan. The requesting client could either view the material on a computer or print one copy.

Libraries, archives, and museums will be permitted to make copies of copyrighted material in an alternative format if there is a concern that the original is in a format that is in danger of becoming obsolete.

Intermediaries and broadcasters

Supporting the sharing of ideas online

The bill will clarify that Internet service providers (ISPs) and search engines are exempt from liability when they act strictly as intermediaries in communication, caching, and hosting activities. The proposed legislation will ensure that services that enable infringement will not benefit from the liability limitations afforded to ISPs and search engines.

Because ISPs are often the only parties that can identify and warn subscribers when they are being accused of infringing copyright, the new provisions will compel all ISPs to participate in the "notice and notice" regime. In other words, when an ISP receives notice from a copyright owner that one of its subscribers is allegedly hosting or sharing infringing material, the ISP will be required to forward the notice to the subscriber and to keep a record of such relevant information as the identity of the alleged infringer. ISPs that fail to retain such records or to forward notices would be liable for civil damages.

Bringing broadcasting rules up-to-date

Radio broadcasters will no longer be required to compensate copyright owners for making temporary reproductions of sound recordings required for digital operations. Small cable systems will see a harmonization of their treatment with that of larger players under the bill.

Parliamentary review

Finally, the bill also includes a requirement for a review of the Copyright Act by Parliament every five years to ensure it remains responsive to a changing environment.

To read this release online, click here.