On September 29, 2011, the federal government introduced Bill C-11, An Act to Amend the Copyright Act, also known as the Copyright Modernization Act. The current bill is said to be identical to the prior Bill C-32, which was tabled in June 2010 after extensive consultation with the public and various stakeholders. Bill C-32 progressed to second reading, but died on the order paper when a federal election was called in March 2011.
The existing Copyright Act has not been substantially amended since 1997. A number of amending bills have been tabled since then, but each has died before being passed into law.
The current proposed legislation is wide sweeping, but in general terms, key areas of reform include:
Anti-circumvention provisions
The proposed legislation would prohibit the circumvention of technological protection measures used by rights-holders to secure and control their digital content. The bill would also prohibit providing such circumvention services to others and dealing in technology designed to circumvent technological protection measures.
Notice and notice provisions and service over the Internet
The bill limits the liability of Internet service providers (ISPs) and Internet search engines for copyright infringement of their subscribers and implements a "notice and notice" scheme. Copyright owners discovering infringement would be entitled to send a notice of claimed infringement to an ISP who would in turn be obliged to forward it to the alleged infringer identified in the notice. The ISP would also be required to retain records relating to the identity of the alleged infringer for a period of time. The copyright owner would be required to obtain a court order for the release of the identity information from the ISP.
The proposed legislation also makes it an infringement for anyone to provide a service over the Internet or another digital network that they know or should know is designed to enable acts of copyright infringement. A number of factors are outlined to determine whether there is infringement, including how the service was promoted, the provider's knowledge that the service was used to enable acts of infringement, the benefit received, and whether the service would be economically viable without enabling acts of infringement.
Fair dealing
The proposed legislation expands the existing fair-dealing exception categories to include fair dealing for the purpose of education, parody or satire.
In addition, the bill provides a number of rights and exemptions relating to educational institutions and the use of digital technologies for educational or training purposes.
Non-commercial use exceptions
The proposed legislation would permit reproduction for private purposes. Specifically, individuals would be permitted to make copies of a work for private purposes provided the original work is a legally owned copy, technological protection measures are not circumvented, the copy is not given away and certain other conditions.
Time-shifting (making a copy for the purpose of viewing or listening at a later time) is also permitted, but subject to limitations including that the recording is used only for private purposes and is not kept longer than reasonably necessary.
Making backup copies is permitted, but subject to certain limitations including that technological protection measures are not circumvented.
The bill permits individuals to use existing works in the creation of user-generated content provided, broadly speaking, that it is solely for non-commercial purposes, the source of the original work is mentioned, the original work is non-infringing, and there is no resulting substantial adverse effect on the exploitation of the original work.
The bill also limits damages in the case of infringement for non-commercial purposes.
The government has expressed its intention to fast-track this legislation. Given that the Conservative government currently enjoys a majority, the bill may very well pass quickly and with few amendments.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
