Under a comprehensive reform bill (Bill C-32) introduced on June 2, 2010, the Canadian Government proposes to update the Copyright Act to bring it in line with international standards, including the WIPO copyright treaties adopted in 1996. Among other changes, the Bill will set out the obligations of Internet service providers with respect to material transmitted over their systems. The Bill will also introduce provisions dealing with the circumvention of technological protection measures and rights management information. The Bill also contains provisions that are intended to enhance users’ access to copyright materials.

Provisions Relating to Internet Service Providers

The Bill clarifies the responsibility of Internet service providers by stating (in section 35) that a person does not infringe copyright in material transmitted or copied on the Internet or any other digital network if the person solely provides the means for the telecommunication or reproduction of a work through the provision of services for the operation of the network. An exemption from liability is also available to a service provider who caches the material or performs some other act to make the telecommunication of the work more efficient, provided that the person does not modify the work (other than for technical reasons), provides a means for ensuring that any directions related to the caching are read and executed, and does not interfere with the lawful use of technology. A similar exemption applies for a person who provides digital memory to permit another person to store a work, as long as the person is not aware of a court order that found the material to be infringing.

The Bill also introduces a “notice-and-notice” regime applicable to Internet and other network service providers. Specifically, a person whose copyright has been infringed by the transmission of material over the Internet may send a notice in a prescribed form and containing certain items of information to an Internet service provider. This information must include “the location data for the electronic location to which the claimed infringement relates”. Upon receiving such a notice, the network service provider must forward the same to the person to whom the applicable location data relates. The ISP must also retain records to allow for the identification of that person for a period of at least six months, or for a longer period if proceedings are commenced within that six month period.

Technological Protection Measures and Rights Protection Information

The Bill would prohibit any person from “circumventing” (which would include avoiding, bypassing, deactivating or removing) any technological protection measures; from offering services for the purposes of circumventing such measures; and from manufacturing, importing or selling any technology designed primarily for the purposes of circumventing any such measures. The Bill will also prohibit a person from altering or removing electronic rights management information without the consent of the owner of copyright in the work, if the removal or alteration will knowingly facilitate or conceal any infringement of the owner’s copyright.

The Bill sets out various situations in which (subject to certain conditions) the prohibitions relating to technological protection measures would not apply, such as for purposes of obtaining information to allow for the interoperability of computer programs; for purposes of encryption research; for purposes of verifying whether a technological protection measure is used without authorization to collect personal information; for purposes of assessing the security of a computer system or network; for purposes of making a work perceptible to a person with a perceptual disability; or for purposes of enabling a broadcasting undertaking to make an ephemeral recording.

Provisions to Enhance Users’ Rights

Bill C-32 would give certain rights to users to make copies of works. For example, an individual may make a reproduction from a copy of a work if the individual already owns the copy, if the reproduction is used for private purposes and is made without circumventing a technological measure, and if the individual does not give away or sell the copy from which the reproduction is made. This exemption will not apply where a musical work is copied onto an audio recording medium.

The new Bill will also modify the penalties applicable to infringement for non-commercial purposes. Specifically, the maximum amount of statutory damages that may be awarded for an infringement carried out for non-commercial purposes will be reduced to $100 for a single infringement and not more than $5,000 with respect to all infringements involved in the proceedings. The Bill allows the court to reduce the amount of damages awarded if the defendant was not aware of the infringement. The Bill also gives guidance to the courts in determining what damages should be awarded, based on factors such as the need for the award to be proportionate to the infringement, the hardship that the award would cause to the defendant, whether the infringement was for private purposes and the impact of the infringements on the plaintiff.

Conclusions

The new Bill represents the latest of several attempts by the Canadian government to bring Canada’s copyright law in harmony with the laws of its major trading partners. By introducing a number of provisions designed not just to protect the rights of rights holders, but also to protect the interests of consumers, the government hopes that the legislation will strike the right balance to be acceptable to both law-makers and the Canadian public.