THE COPYRIGHT MODERNIZATION ACT

Key Amendments and Canada’s New Copyright Regime

Presented  by:  Robert  D.  McDonald  

BILL C - 11

• An Act to amend the Copyright Act (also known as the Copyright Modernization Act) (“CMA”)

• Introduced September 29, 2011 • Received royal assent – June 29, 2012 • Provisions will be entered into force on a date to be fixed by Order in Council

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Purpose of Copyright Modernization Act

•  Updating legislation to deal with new technology

•  Aligning Canada’s legislation with international treaties

•  Clarify Internet Service Provider liability

•  Permit businesses, educators, students and libraries to make greater use of copyright material in digital form

•  Revise legislative provisions to be technology neutral

•  No substantial amendments since 1997

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Anti-Circumvention Provisions (s.41 - 41.27)

•  Circumvention of technological protection measures (“TPM’s”) used by rights holders to secure and control their digital content, is prohibited

•  TPM (or digital lock) circumvention is considered copyright infringement (passwords, encryption software, access codes)

•  Persons who manufacture, market or distribute TPM circumvention tools such as digital lock cracking software, or who set up services to enable infringement, will be subject to civil and criminal sanctions

•  Exception for unlocking cell phones (“radio apparatus”) •  These provisions apply to all TPM circumvention, even for personal use

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Internet Service Providers (ISP’s) (s.31.1)

•  No infringement simply by providing the means for telecommunication and reproduction

•  The CMA establishes a “notice and notice” scheme for ISP’s and search engines (s. 41.25 – 41.27)

•  ISP’s and search engines will have only limited liability for copyright infringement committed by their subscribers, provided they comply with the notice and notice scheme

•  ISP’s and search engines will have to forward any notices received of claimed infringement to the alleged infringer and maintain records relating to the alleged infringer’s identity

•  It is now copyright infringement to provide a service over the internet or otherwise that is designed to enable acts of copyright infringement

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Fair Dealing (s.29)

• Fair dealing has always been an exemption under the previous Copyright Act (research, private study, criticism, review)

• Permitted fair dealing purposes have been expanded under the CMA to include education, parody and satire

• Dealings with copyright works must still be considered “fair”.

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User Generated Content (YouTube clause s. 29.21)

• Users now permitted to create their own content by combining or using existing copyright material, provided certain conditions are met

• The purpose of the user generated content must be non-commercial, the source must be mentioned (where reasonable), and there must not be any substantial adverse impact on the copyright holder’s exploitation of the work

• Individual must have reasonable grounds to believe the source material was not infringing copyright

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Copying for Private Purposes

•  Format shifting (s. 29.22) time shifting, (s. 29.23) and backup copies (s. 29.24)

•  Under the previous Copyright Act, format shifting and time shifting were unlawful, and constituted copyright infringement

•  The CMA makes it lawful to make copies for private purposes

•  The exception is only available if the source material is not infringing, it was legally obtained, and a TPM has not been circumvented

•  Cannot copy borrowed or rented works, cannot give away, sell or rent the copy

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Statutory Damages (s. 38.1)

•  The previous Copyright Act allowed a copyright owner to seek statutory damages between $500.00 and $20,000.00 for each work infringed

•  The CMA reduces the statutory damages to a range of between $100.00 and $5,000.00 where the copyright infringement is relating to an individual who has infringed copyright for private use (one time payment for ALL infringements)

•  Statutory damages for infringement for commercial purposes are still between $500.00 and $20,000.00 for each work infringed.

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Photographers (s. 10 and s. 13(2) repealed)

• Under the old Copyright Act, the person who commissioned a photograph was considered the original owner of copyright

• Under the CMA, the photographer will become the first owner of copyright in their photographs, regardless of whether or not the works were commissioned

• Individuals who commissioned works will have rights of personal and non-commercial use unless there is an agreement to the contrary

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Other Amendments

•  New Moral Rights for Performers (s. 17.1 and 17.2) •  used to only exist for authors

•  New Making Available and Distribution Rights (s. 15 and s. 18) •  Making works and performer’s performances available by telecommunication

and distribution

•  Removal or alteration of Rights Management Information (RMI) prohibited (s. 41.22) •  ie. water marks and notices

•  New Educational Institution exceptions (s. 29.4 and s. 30.1) •  Use of publicly available internet materials, digital delivery of course materials

•  Review of CMA every 5 years (s. 92)

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Conclusion

• The Copyright Modernization Act represents a significant revision to existing Canadian copyright legislation

• The CMA attempts to balance the rights of both creators and users, brings Canada’s legislative regime more in line with international standards, makes Canada’s copyright legislation technologically neutral, and addresses the realities of new technologies on the protection and enforcement of copyright

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The preceding presentation contains examples of the kinds of issues

companies dealing with Copyrights could face. If you are faced with one of these issues, please retain professional assistance as each situation is unique.

Rob  McDonald  Dentons  Canada  LLP  |  www.dentons.com        T:  780  423  7305  |  F:  780  423  7276        E:  rob.mcdonald@dentons.com  

Thank you