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KNOWLEDGE CENTRE

Canada's Copyright Modernization Act Receives Royal Assent

June 2012

By Kevin Sartorio

On 29 June, 2012, Bill C-11 “An Act to Amend the Copyright Act” (also known as the Copyright Modernization Act) received Royal Assent. The passage of this Bill into law ends many years of tumultuous debate in Canada on how our copyright legislation should be updated to deal with advancing technologies, the balancing of rights as between creators and users and certain of our country’s international treaty obligations.

The Canadian Copyright Act has not been amended substantially since 1997. A number of prior proposed amending bills had been tabled since 1997, but each had died before being passed into law.

The amendments that have now received Royal Assent are wide-ranging. Key areas of reform include:

Anti-Circumvention Provisions

The Copyright Act will now prohibit the circumvention of technological protection measures used by rights-holders to secure and control their digital content, whether by dealing in circumvention technologies themselves or by providing circumvention services to others.

Notice and Notice Provisions and Service over the Internet

ISPs and Internet search-engines will now only have limited liability for copyright infringements committed by their subscribers, when the ISPs and search-engines comply with a “notice and notice” scheme set out in the new legislation. Upon discovering infringements of their rights, copyright owners are entitled to send a notice of claimed infringement to an ISP or search-engine, who will in turn be obliged to forward it to the alleged infringer identified in the notice. The ISP or search-engine will also be required to retain records relating to the alleged infringer’s identity for a period of time. The copyright owner will be required to obtain a court order before obtaining such identity information from the ISP or search-engine.

The Copyright Act will now also make 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 permitted fair dealing purposes have now also been expanded under the Copyright Act to include education, parody or satire. Dealings with works for these purposes must still be “fair” in all the circumstances.

The Copyright Act will also provide a number of new rights and exemptions relating to educational institutions and the use of digital technologies for educational or training purposes.

Non-commercial Use Exceptions

The right to reproduce works for private purposes has been expanded. Specifically, individuals will now be permitted to make copies of a work for private purposes, provided that the original work being copied is a legally-owned copy, technological protection measures are not circumvented to create the copy, the copy is not given away and certain other conditions are also met.

Time shifting (making a copy for the purpose of viewing or listening at a later time) is also now expressly permitted, subject again to limitations, including that the recording is used only for private purposes and is not kept longer than reasonably necessary.

Making backup copies of a work will also be permitted, subject to certain limitations including that technological protection measures are not circumvented.

Individuals are also given the right to use existing copyright works in the creation of new user-generated content, provided broadly speaking that this is done 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 exploitation of the original work.

The new Copyright Act also limits the amount of damages that a copyright owner may recover against an infringer in the case of infringement occurring for non-commercial purposes.

The reforms accomplished by Bill C-11 do not take immediate effect. They will come into force on a day or days to be fixed by order of the Governor in Council.

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