The Canadian Bar Insurance Association
Intellectual Property

Updated copyright law welcomed

Updated copyright law is finally enacted in Canada, and while changes were desperately needed, it’s difficult to determine whether all of the specific amendments were crucial to fill the gaps, says Toronto intellectual property and trademark lawyer John Simpson

“What was necessary was to bring Canada’s copyright laws into the digital age and to align them with the standards of the World Intellectual Property Organization,” says Simpson. “Whether each of the specific amendments was needed to fulfill those goals is hard to say.”

Bill C-11 – the Copyright Modernization Act – became law Nov. 7, says Simpson, noting the law introduces significant changes to copyright law in Canada.  

“Most, but not all of these changes, relate to digital media and the Internet and are intended to bring Canada in line with international treaties,” he says.

Simpson says some of the major changes include:

(a) prohibiting the removal, tampering with or circumvention of “digital locks” embedded in certain digital media to restrict unauthorized downloading or copying;
(b) permitting reproduction of copyrighted works, for personal use, into another format (format shifting), for later use (time shifting) or for back-up purposes;
(c) permitting reproduction of copyrighted works for the purposes of satire, parody and online educational purposes;
(d) permitting the use of existing copyrighted works to create new, non-commercial user generated content (aka “mash-ups”);
(e) entitling photographers to the same presumptions of ownership as other creators enjoys with respect to their works;
(f) providing all copyright owners with the right to control how their works are made available online;
(g) lowering statutory damages to $100 - $5,000 for non-commercial copyright infringement (from the previous range of $500 - $20,000).

“Until now, copyright law in Canada has been hopelessly out of date in terms of the technologies available for creating, distributing and using copyrighted works,” says Simpson. “Courts have been applying laws that were drafted 100 years ago to modern technology, with a lot of resulting uncertainty. At the very least, the new legislation makes clearer what distributors and consumers of copyrighted works are allowed to do with them. Hopefully this will give companies and individuals more certainty in their transactions and in managing risks.”

Simpson says it’s likely the most controversial elements to the act are those dealing with technological prevention measures (TPMs), also referred to as digital locks, that prohibit making, selling or using technology to circumvent TPMs or otherwise tampering with or removing TPMs.

“Personally, I think some legislation was necessary to prevent the use of technology designed specifically for pirating software, movies and other content. But the provisions in the new act may go too far,” says Simpson. “They seem to prohibit the removal of a TPM even to engage in a permitted use of a copyrighted work, for example for private study, backup or format shifting.”

Simpson says while the goal of the new legislation was to balance the interests of creators in protecting their works with the interests of consumers in the digital age, the balance may have tipped too far in favour of consumers.

“The provisions dealing with ‘user generated content’ could excuse widespread reproduction of copyrighted works in the social media realm, cheapening the commercial value of those works,” he says. “And the new exceptions for educational uses of copyrighted works could threaten the viability of Canada’s scholarly, academic and text book publishing industries.”

How will these changes affect everyday citizens?

“The changes that most directly affect everyday people are the explicit permission to copy works, for personal use, into another format (format shifting), for later use (time shifting), or for back-up purposes,” says Simpson. “While people have been doing these things with impunity for years, the more conscientious among us no longer need to worry about breaking the law.

“Social media users can also feel more comfortable in creating ‘mash-ups’ of copyrighted music and video on YouTube and their profile pages than they could previously.”

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