On June 29, 2012, Bill C-11, the Copyright Modernization Act, passed third reading in the Senate and received Royal Assent. Although not yet proclaimed into force, this Bill amends the Copyright Act, which had remained largely unchanged since 1997.
The enactment of this bill comes in the wake of several failed attempts to revise the Copyright Act, namely Bills C-60, C-61 and C-32, each of which died on the Order Paper due to the dissolution of Parliament in December 2005, September 2008, and March 2011, respectively.
Bill C-11, which was introduced in the House of Commons on September 29, 2011, adds new provisions to the Copyright Act, in part to align the Copyright Act with a number of international copyright treaties that have been signed by Canada.
The following is a brief, non-exhaustive overview of some of these changes to the Copyright Act.
Photographs Commissioned by Others:
Whereas previously the general rule for photographs was that the individual who commissioned a photograph would be deemed the first owner of the copyright in such work, Bill C-11 provides that photographers are the first owner of copyright, like all other authors, unless the author is the employee of another.
Performers’ Moral Rights:
Performers’ moral rights to their performances are expanded under Bill C-11. 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.
The new Act includes the new subsection 27(2.3), which defines infringement of copyright to include providing an Internet-based service (or other digital network service) primarily for the purpose of enabling acts of copyright infringement if an actual infringement of copyright occurs by that same means as a result of the use of that service.
The fair dealing exception is expanded under Bill C-11 to include education, parody and satire. In a recent decision, Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, the Supreme Court of Canada considered whether teachers’ reproduction of various excerpts of literary and artistic works for use in teaching, without the payment of royalties, amounted to copyright infringement. The Court found that the dealing fell within the allowable purpose of “research or private study,” and ordered that the Copyright Board’s decision as to the unfairness of such dealing be reconsidered. Given that this Supreme Court decision established a similar fair dealing exception for education as that found in Bill C-11, it will be interesting to see how the decision will affect the interpretation of the new provisions found in Bill C-11.
Non-Commercial User-Generated Content (UGC):
New section 29.21 provides that 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:
Under Bill C-11, 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. This “format-shifting” provision allows individuals, subject to certain exceptions, to transfer legally-obtained works from one format to another, for personal use, without infringing copyright.
Bill C-11 allows individuals 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 equally not an infringement of copyright in a work 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.” A “technological protection measure” is a technology, device or component that, in the ordinary course of its operation, controls access to a work or controls the copying of a work. Under Bill C-11, an individual is prohibited from circumventing a TPM, even where the work that is subject to the TPM has been legally acquired. TPM circumvention is allowed only in limited circumstances (e.g. for law enforcement purposes and national security activities, to verify whether a TPM permits the collection or communication of personal information).
Damages for Reverse Engineering Technological Protection Measures:
TPM circumvention can lead to significant damages awards under Bill C-11. Where an individual contravenes a TPM for commercial purposes, Bill C-11 imposes 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.
Statutory damages awards in non-TPM cases are modified under Bill C-11 to depend upon the commercial or non-commercial purpose underlying the infringement. Whereas previously statutory damages ranged from $500 to $20,000 per work infringed (see section 38.1 of the current Copyright Act), the new provisions under Bill C-11 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.
The provisions of Bill C-11 will come into force on a day or days to be fixed by order of the Governor in Council. The entirety of Bill C-11 may be consulted on the Parliament of Canada’s website.