On September 29, 2011, the Government of Canada again tabled legislation in the House of Commons to amend the Copyright Act. Previous attempts in 2005, 2008 and 2010 to update the Act in response to changing technologies and to meet its international obligations died on the Order table when the previous governments of the day fell. The government has introduced the same Bill as C-11, as the prior 2010 Bill C-32. With a majority government now ensconced in Ottawa, there is reason to believe Bill C-11 will pass into law. The government has stated that it intends Bill C-11 to pass the House of Commons before the end of 2011.

The proposed changes, which include diverse provisions balancing stronger enforcement mechanisms for different creator groups with the flexibility demanded by consumer stakeholders and copyright users, follow an extensive copyright consultation process undertaken by the government during the summer of 2009. It is not anticipated that groups which have already had an opportunity to comment to the government on the prior Bill C-32 will be given a second opportunity to address Bill C-11.

The Bill includes numerous provisions aimed at reducing infringement and providing additional rights to copyright holders, but also recognizes that certain day-to-day activities by consumers, such as format- and time-shifting of music and television programs, should not be infringements unless these works have been protected by a digital lock.

Other notable amendments include:

  1. Additional permitted “fair dealing” uses of works for parody, satire, education, and “back-up” storage, unless digital locks would be tampered with to access a work.
  2. Adoption of a “Notice and Notice” system by ISPs, who, to avoid liability, would have to forward to website operators hosted on their networks any written notices of infringement they receive from a copyright holder and retain the data necessary to identify the alleged infringer for a specified period of time.
  3. Making it permissible for a network or other technological process to cache or otherwise temporarily copy a work, if done to facilitate a non-infringing use or to improve the efficiency of the network.
  4. New limits on statutory damages depending on whether the illegal copying was done for commercial or non-commercial purposes.
  5. A new exemption for individual users who create “mash-ups” using other copyrighted works, provided they meet certain criteria and use the derivative work for non-commercial purposes only.
  6. The repeal of sections which gave copyright ownership in photographs to the holder of the negative or other media or to the commissioning party where the photograph was commissioned. Under the Bill, photographers, unless employees, would own the copyright.

The amendments also create a new “making available” right for sound recordings and make it an infringement to provide a service over a network designed primarily to enable acts of infringement, for example, bit torrent websites which facilitate peer-to-peer file sharing to distribute a large volume of data, including music and movie files.

The most contentious provisions relate to protecting “technical protection measures” (i.e. digital locks). The Act makes it an offence to circumvent a digital lock, regardless of whether the user is entitled to use the encrypted work for a lawful purpose (e.g. private research, time shifting, making back up copies). Critics of the amendments argue that by adopting such strict protection for digital locks, the Bill permits copyright owners to trump the new exemptions for copyright users, tipping the balance in favour of creators over consumers.

The benefit of these and other provisions within the Copyright Modernization Act will no doubt be vigorously debated in the coming months before the Bill can be enacted. It also contains a provision mandating further legislative review of the Copyright Act every five years, so the reform process will never end. Stakeholders who dislike any of these changes will live to fight another day.