Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
Bill C-32, An Act to amend the Copyright Act, was introduced in the House of Commons by the Minister of Industry, the Honourable Tony Clement, and received first reading on 2 June 2010.1 The bill adds new rights and exceptions to the Copyright Act.2 As noted in the bill’s summary, the objectives of Bill C-32 are to:
Whether the bill will achieve these objectives is a subject of debate amongst the various stakeholders affected by copyright reform, including authors, artists, musicians, record labels, book publishers, collective societies, libraries, museums, school associations, software developers, retailers, and consumers.
Copyright is a legal term describing rights given to creators for their literary and artistic works.3 Copyright attaches to an original work that is fixed in some material form. In other words, copyright protects the expression of an idea or intellectual creation; it does not protect the idea itself.
Canadian copyright law descends from two sources: English “copyright” (in the simplest terms, the economic “right to copy”), and the French “droit d’auteur,” which is more comprehensive.4 In Canada, copyright is a purely statutory right and based solely on the provisions found in the Copyright Act (“the Act”). The Act affords the author of a work the right to authorize or prohibit certain uses of his or her work and to receive compensation for its use. The purpose of the Act, like that of other pieces of intellectual property legislation, is to protect copyright owners while promoting creativity and the orderly exchange of ideas.
There are two types of rights under copyright. Economic rights allow the rights owner to derive financial reward from the use of his or her works by others. Moral rights allow an author to protect the integrity of his or her work from prejudicial alterations and to be associated with the work as its author by name or under a pseudonym or to remain anonymous. Copyright and moral rights in works (including the term of copyright) are set out in Part I of the Copyright Act.
Copyright applies to all original literary, dramatic, musical and artistic works. Each of these general categories covers a wide range of creations, including:
As well, Part II of the Act contains provisions for neighbouring rights, consisting of copyright protection for three categories of works that fall under “other subject matter”:
As detailed below, Bill C-32 proposes expanding protection of neighbouring rights in order to enable ratification of the World Intellectual Property Organization Performances and Phonograms Treaty.
The Copyright Act, and most copyright laws internationally, provide that the author or rights holder has the right to authorize or prevent certain acts in relation to a work. Generally speaking, the rights holder of a work can prohibit or authorize:
An author may assign any or all of these economic rights to a third party, who then becomes a copyright holder. Moral rights cannot be assigned but they can be waived by the author.
Copyright does not continue indefinitely. The law provides for a period of time during which the rights of the copyright owner exist. In Canada, and in many other countries, the duration of copyright is as a general rule the life of the author plus 50 years after the author’s death, with some common exceptions. For example, the term of copyright for posthumous works, anonymous works and movies is 50 years from publication. There is a trend in a number of countries toward lengthening the duration of copyright. Indeed, the European Union, the United States and several other countries have extended the basic term of copyright to 70 years after the death of the author.
Part III of the Copyright Act addresses infringement of copyright and moral rights as well as exemptions and exceptions to copyright protection. The Act provides that any “fair dealing” with a work for purposes of private study or research, or for criticism, review or news reporting is not infringement. However, in the case of criticism, review, or news reporting, the user is required to give the source and the author’s, performer’s, sound recording maker’s or broadcaster’s name, if known. The line between fair dealing and infringement is a thin one. There are no guidelines that define the number of words or passages that can be used without permission from the author. Only the courts can rule whether fair dealing or infringement is involved. In addition to fair dealing, the Copyright Act has exceptions for different categories of users. Non-profit educational institutions are permitted to make copies and perform works and other subject matter protected by copyright, free of charge, in the classroom, subject to certain restrictions. Non-profit libraries, museums and archives may copy published and unpublished works protected by copyright in order to maintain and manage their collections. Persons with a “perceptual disability” or organizations acting for their benefit can copy a work protected by copyright in alternate formats such as Braille, talking books or sign language.
In CCH Canadian Ltd. v. Law Society of Upper Canada,7 the Supreme Court of Canada held that the fair dealing provision of the Act (section 29), as well as related exceptions, “is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.”8 As there is no definition for what is “fair,” the Court enumerated six factors that provide a “useful analytical framework to govern determinations of fairness in future cases”:9 (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work.10
As detailed below, Bill C-32 proposes expanding the “fair dealing” exception found at section 29 of the Copyright Act to include education, parody and satire. As well, Bill C-32 proposes amendments to the exceptions available to educational institutions, libraries, museums, archives and persons with a “perceptual disability” in order to facilitate the use of digital technologies and make the provisions more technologically neutral.
Violation of copyright rights through the unauthorized use of a copyright constitutes infringement. Part IV of the Act details the civil and criminal remedies for copyright infringement. Possible remedies include: awards for damages and/or lost profits or royalties, injunctions, fines, and imprisonment, depending on the severity of the infringement and the type of work or rights infringed.
International treaties on copyright11 have been central to the development of copyright law in Canada. The Copyright Act of Canada is not enforceable outside Canada’s borders. However, international conventions and treaties expand the rights of Canadian creators to the territories of other member countries and include enforceable penalties for copyright infringement. International treaties on copyright are ratified and implemented through legislative amendment to the Act when necessary. Canada has ratified or acceded to a number of international treaties addressing copyright.12 Unless otherwise specified, these conventions are administered through the World Intellectual Property Organization (WIPO):
In addition, copyright is also frequently included in bilateral trade agreements.
Canada participated in the 1996 Diplomatic Conference on Certain Copyright and Neighboring Rights Questions that led to the creation of the two World Intellectual Property Organization Treaties dealing with copyright in the digital era, the WIPO Copyright Treaty17 (WCT) and the WIPO Performances and Phonograms Treaty18 (WPPT). The treaties, known together as the “WIPO Internet Treaties” came into force in 2002. Canada signed the treaties in 1997, but has not yet ratified them. Much of the rationale for copyright reform is to enable ratification and implementation of these two treaties.
The WCT is a special agreement under the previously ratified Berne Convention. The WCT deals with protection for authors of literary and artistic works, such as writings and computer programs, original databases, musical works, audiovisual works, works of fine art and photographs. The WPPT, on the other hand, protects certain “related rights” (that is, rights related to copyright), being the rights of performers and producers of phonograms (sound recordings). The WPPT establishes copyright protection for performers and makers of sound recordings of performances similar to that granted the authors of other works.
As noted by the International Bureau of WIPO, perhaps one of the most significant contributions of the WCT and the WPPT is their recognition of the rights of authors, performers and phonogram producers to authorize the online transmission of their works, fixed performances and phonograms, as the case may be.19 The WCT and WPPT provide that authors, performers and producers of phonograms must be granted exclusive rights to authorize the making available of their works, performances fixed on phonograms and phonograms, respectively, by wire or wireless means, in such a way that members of the public may access those works, performances and phonograms from a place and at a time individually chosen by the members of the public (that is, interactive, on-demand services). The WPPT provides this right as a “right of making available to the public” while the WCT includes it in the provision on a general right of communication to the public.
As well, both WIPO Internet Treaties create an exclusive right for authors, performers and phonogram producers to authorize the making available to the public of originals and copies of works through sale or other transfer of ownership, that is, an exclusive right of distribution often referred to as “first distribution rights.”20 Note that the distribution right applies to tangible goods, such as copies of a CD.
Additionally – and this has become one of the most contentious issues in debates surrounding copyright reform – the WIPO Internet Treaties stipulate that Contracting Parties must create legislation to prevent the circumvention of a technological protection measure. As well, Contracting Parties must provide remedies to prevent the alteration and removal of rights management information used to identify a work and track subsequent use of the work.21 Legal protection and remedies to prevent circumvention are now commonly called anti-circumvention laws.
The three-step test is a clause that is included in several international treaties on intellectual property, first added as article 9(2) of the Berne Convention in 1967.22 It imposes on signatories to the treaties constraints on the possible limitations and exceptions to exclusive rights under national copyright laws. In other words, the three requirements of the test must be satisfied before exceptions to copyright (such as fair dealing exceptions) can be justified. Limitations on and exceptions to copyright must be limited to “certain special cases” (the first step), should “not conflict with a normal exploitation of the work” (the second step), and should “not unreasonably prejudice the legitimate interests of the author” (the third step). Variants of the three-step test are found in article 13 of TRIPS, article 10 of the WCT and article 16 of the WPPT.23
In October 2007, the Government of Canada announced that it would participate in discussions towards an Anti-Counterfeiting Trade Agreement (ACTA). The objective of the ACTA would be to put in place international standards for enforcing intellectual property rights in order to fight more efficiently the growing problems of counterfeiting and piracy. The proposed agreement will cover three areas: improving international cooperation, establishing best practices for enforcement, and providing a more effective legal framework. ACTA negotiating partners, a group which includes along with Canada, Australia, the European Union and its member countries, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the United States, aim to conclude the agreement in 2010.24 The negotiation of ACTA is relevant to copyright reform insofar as Canadian copyright law must be consistent with any international intellectual property obligations that Canada would agree to.
The last time the Copyright Act underwent significant amendment was in 1997 with the enactment of an earlier Bill C-32. Changes to the law in 1997 included the addition of neighbouring rights protections for performers and producers of sound recordings and broadcasters, a private copying regime, the introduction of a statutory damages regime, as well as the introduction of a number of new but limited exceptions.25 These amendments came at a time when the evolving digital revolution, with its rapid changes in technologies, made it difficult to predict the directions new technologies would take. For example, inexpensive digital music storage devices and commercial music downloading websites had yet to be invented. In order to gauge the effectiveness of the 1997 amendments, section 92 of the Act mandated a review within five years of the proclamation of the changes.
In December 2001, legislation was introduced to amend Canada’s retransmission regime for over-the-air broadcast signals in the Copyright Act.26
In 2002, Industry Canada and the Department of Canadian Heritage, which are jointly responsible for copyright policy in Canada,27 produced a report on the five-year review entitled Supporting Culture and Innovation: Report on the Provisions and Operations of the Copyright Act.28 This report identified 40 issues for possible legislative action, organizing them according to whether they should be dealt with in the short term, medium term or long term.
On 25 March 2004, the Minister of Canadian Heritage and the Minister of Industry jointly submitted a Status Report on Copyright Reform29 to the Standing Committee on Canadian Heritage. The committee reviewed the status report and held a series of meetings to consider six short-term issues, namely private copying and ratification of the WIPO Internet Treaties; photographic works; Internet service provider liability; use of Internet material for educational purposes; technology-enhanced learning; and inter-library loans.
In May 2004, the committee released its findings and nine recommendations in its Interim Report on Copyright Reform.30 Among other things, the committee recommended that:
In March 2005, the Ministers of Industry and Canadian Heritage jointly released the Government Statement on Proposals for Copyright Reform,31 which outlined proposals for a bill the government planned to table in the spring of 2005. This bill, C-60, was finally tabled on 20 June 2005.32 Bill C-60 died on the Order Paper after the dissolution of Parliament on 1 December 2005 for the January 2006 election.
Around the time of the election, in late 2005 and early 2006, two copyright-related reports were published by Industry Canada. The first report examined the economic impact of reforming Canada’s private copying regime.33 The second report examined the economic impact on Internet service providers in Canada of the “notice-and-notice” regime whereby the providers send a notice to a possible copyright infringer after receiving a claim from a copyright holder.34
In May 2007, Industry Canada released a study investigating the effects on music sales of music downloading;35 the study did not find a connection between the downloading and sharing of music online and decreased sales volume of music CDs in Canada.
In June 2007, changes were made to the Criminal Code to criminalize the recording of movies in a movie theatre for commercial purposes to prevent movie piracy on the Internet, which arguably affects the profits of copyright holders that rely on time-limited exhibition and distribution of copyrighted works.36
In the Speech from the Throne opening the 2nd Session of the 39th Parliament in October 2007, the government emphasized that improved protection for intellectual property rights and copyright reform would be an important issue for Parliament. Bill C-61, An Act to amend the Copyright Act, was placed on the Notice Paper on 7 December 2007, but the bill was not introduced in the House of Commons until 12 June 2008.37 It was thought that one of the reasons for the delay was vocal concern over proposed provisions for the protection of digital works that may be similar to those found in American copyright legislation and that are generally thought to unduly limit the rights of users of copyrighted works. Provisions similar to those found in the US law are commonly called DMCA-style laws, in reference to the Digital Millennium Copyright Act,38 which amended the U.S. Copyright Act in 1998 in order to ratify the WIPO Internet Treaties.
Bill C-61 was met with mixed reviews.39 It received the support of record labels and some content creators, but claims were also made that it had been developed with insufficient public consultation and that it gave the appearance of being the result of heavy lobbying by American media industries to replicate the DMCA. As well, it was criticized for containing an anti-circumvention clause making it illegal to break digital locks on copyright material. At the heart of the concern with the bill was that it did not sufficiently preserve fair dealing in the digital environment, as any circumvention of a digital lock (with certain limited exceptions) would violate the law. Bill C-61 died on the Order Paper after the dissolution of Parliament on 7 September 2008 for the October 2008 election.
In the Speech from the Throne opening the 1st Session of the 40th Parliament in November 2008, the government reiterated its commitment to copyright reform, stating, “Cultural creativity and innovation are vital not only to a lively Canadian cultural life, but also to Canada’s economic future. Our Government will proceed with legislation to modernize Canada’s copyright laws and ensure stronger protection for intellectual property.”40
From 20 July 2009 until 13 September 2009, the Government of Canada held public consultations on copyright led by the Ministers of Industry and Canadian Heritage.41 The consultations consisted of round tables, town hall meetings, online submissions and online discussions.
While no legislation was introduced by the government in the autumn or winter following the copyright consultations, the government reiterated its commitment to copyright reform in the Speech from the Throne opening the 3rd Session of the 40th Parliament on 3 March 2010.42
Bill C-32, An Act to Amend the Copyright Act, was introduced in the House of Commons on 2 June 2010.43
The following section provides a summary overview of selected provisions contained in Bill C-32, organized in accordance with the structure of the Copyright Act.
Clause 3 of the bill adds a new subsection to section 2.4 of the Act, clarifying that the definition “communication of a work or other subject-matter to the public by telecommunication” includes making a work available by telecommunication, at a place and time chosen by the public, in order to implement the making available right for intangibles (see more particularly clauses 9 and 11).
Clause 6 of the bill repeals section 10 of the Act (term of copyright for photographs).
Clause 7 of the bill repeals subsection 13(2) of the Act (ownership of copyright for commissioned photographs). The bill seeks to make the photographer or painter the owner of copyright in photographs or portraits that have been commissioned, thereby bringing the ownership of copyright in photographs in line with other works. Presently, the person who commissions a photograph or portrait, rather than the photographer, is deemed to be the first owner of the copyright. Photographers, therefore, have had to rely on contractual arrangements to obtain rights to reproduce their photographs. The bill gives the person who commissioned the photograph or portrait limited rights to use it for personal or non-commercial use without the photographer or artist’s permission, subject to any contract that specifies otherwise.44
Clauses 8 to 17 of the bill modify Part II of the Act.
Clause 8 of the bill confers a new title on Part II of the Act (provided above) adding moral rights in performers’ performances to the title.
Clauses 9 and 11 of the bill provide a new exclusive right to performers and makers of sound recordings at sections 15 and 18 of the Act to make a sound recording available to the public over the Internet and to sell or transfer the ownership in a physical recording for the first time. The making available right is found in the two 1996 WIPO Internet Treaties, the WCT45 and the WPPT46 that Canada intends to implement with reform of the Copyright Act. The making available right is an exclusive right for rights-holders to authorize or prohibit the dissemination of their works and other protected material through interactive networks such as the Internet (for example via iTunes).47
Clause 10 of the bill provides that a performer enjoys moral rights in his/her performance for the same term as the copyright in that performance, as required by Article 5 of the WPPT48 (proposed sections 17.1 and 17.2 of the Act).
Under clauses 13 and 14 of the bill, a sound recording “made available to the public” is deemed to be “published” (proposed sections 19.1 and 19.2 of the Act).
Clauses 15 and 16 relate to the extension of protection to foreigners49 with respect to performances and sound recordings. Such remuneration rights are the subject matter of a number of detailed provisions, apparently designed to satisfy the minimum requirements of the various international agreements that Canada has ratified or signed (Rome Convention, WPPT) (proposed amendments to sections 20 and 22 of the Act).
Clause 17 of the Bill sets the term of copyright protection in performers’ performances as 50 years from the end of the calendar year in which the performance occurs. If the performance is fixed before the end of the term of protection, it would be protected for 50 years after its fixation. If the sound recording of it is published before the end of the term of protection, the performance would then be protected for the earlier of 50 years after the publication of the sound recording or 99 years after the performance occurred. Sound recordings are to be protected for 50 years after their first fixation or, if published, for 50 years after publication. Copyright in a communication signal would subsist for 50 years following the broadcast of the signal (proposed amendments to section 23 of the Act).
Clauses 18 to 41 of the bill modify Part III of the Act.
Clause 18 of the bill adds the following to section 27 of the Act: a clarification regarding a copy made under an exception outside Canada; a provision on secondary infringement related to a lesson; and provisions indicating that it is an infringement to provide through the Internet, or another digital network, a service that is designed primarily to enable acts of copyright infringement if actual infringement occurs as a result of the use of that service.
Clauses 19 and 20 extend moral rights to performer’s performances. Moral rights include the right to the integrity of the work and the right to be associated with a work by name or a pseudonym, or to be anonymous (proposed sections 28.1 and 28.2 of the Act).
Clause 21 of the bill expands the scope of the fair dealing exception at section 29 of the Act to include new purposes: education, parody or satire (in addition to research and private study in that same section, and criticism and review at section 29.1). As suggested by the government and some commentators, education apparently refers to a structured context50 and would include training in the private sector but would not cover “education” of the public at large.51
Clause 22 of the bill adds four sections to the Act following the existing sections on fair dealing:
Clauses 23 through 27 of the bill apply to the exceptions available to educational institutions:
Clauses 28 to 30 of the bill apply to libraries, archives, and museums: Clause 28 slightly expands the exception found in paragraph 30.1(1)(c) of the Act by allowing a library, an archive or a museum to make a copy of a work in its permanent collection in an alternative format if the original is in a format that is obsolete or the technology required to use the original is unavailable or is becoming unavailable. Clause 29 of the bill permits libraries to distribute materials digitally; however, the library must take measures to ensure that the client prints one copy only of the digital form, does not communicate the copy to another person and ensures that the copy is destroyed within five days of using it. Digital distribution is only permitted if there are no digital locks on the materials. Clause 30 applies similar provisions to unpublished works deposited in archives.
Clauses 31 and 32 of the bill add exceptions relating to computer programs (at sections 30.6 and following of the Act). Clause 31 allows the reproduction of computer programs for the purpose of interoperability, encryption, research, and correcting security problems. Clause 32 allows temporary reproductions of works to be made for the sole purpose of facilitating a use that is not an infringement of copyright.
Clause 33 of the bill slightly amends subsection 30.8(11) of the Act after paragraph (c) to allow the Canadian Radio-television and Telecommunications Commission (CRTC) to exempt an undertaking from the requirement to hold a broadcasting licence issued by the CRTC.
Clause 34 of the bill amends the provision of the Act dealing with ephemeral recordings made for broadcasting purposes (section 30.9 of the Act). More specifically, the proposed amendment eliminates subsection 30.9(6) of the current Act, which provides that the ephemeral recording exception does not apply if a licence is available from a collective society. The elimination of this provision appears to indicate an intention to eliminate the current obligation of broadcasters to pay for copies made for the purpose of broadcasting.53 Again, this applies only to ephemeral recordings, which must be destroyed in any event within 30 days after making the reproduction (unless the copyright owner allows the reproduction to be retained).
Clause 35 (at new section 31.1 of the Act) exempts “persons providing services related to the operation of the Internet or other digital networks” from liability for copyright infringement when they are acting solely as intermediaries in communication, hosting and caching activities. As well, it adds an exemption for web-hosting service providers to store the works without infringing copyright, unless the web host knows of a court decision holding that the stored material infringes copyright.
Clauses 36 and 37 of the bill add exceptions for persons with perceptual disabilities (sections 32 and 32.01 of the Act). Clause 37 introduces an exception for non-profit organizations acting for the benefit of persons with a print disability54 to make a copy of a work in a format specifically designed for persons with a print disability, and to send a copy of the work to similar organizations abroad (with some conditions).
Clause 38 adds a provision to section 32.2 of the Act to provide a person who commissioned a photograph or portrait limited rights to use it for personal or non-commercial use without the photographer or artist’s permission, subject to any contract that specifies otherwise.
Clauses 39, 40 and 41 contain transitional amendments to the sections of the Act regarding compensation for acts done before recognition of copyright of performers and broadcasters, and of copyright or moral rights (understood to be with respect to implementation of the 1996 WIPO Internet Treaties, the WPPT and the WCT).
Clauses 42 to 49 of the bill modify Part IV of the Act.
Clauses 42, 43 and 44 contain amendments to sections 34 and 34.1 of the Act. Clause 42 adds “Copyright Infringement” before section 34 of the Act; clause 43 contains a minor modification to subsection 34(2) of the Act regarding proceedings for infringement of a moral right of an author. Clause 44 clarifies that the presumption of subsistence and ownership of copyright provided under section 34.1 applies to civil proceedings only.
Clause 45 repeals sections 36 (protection of separate rights and apportionment of damages or profits) and 37 (concurrent jurisdiction of the Federal Court) of the Act. However, clause 47 (see below) simply moves these provisions to new sections 41.23 and 41.24 of the Act.
Clause 46 of the bill modifies the rules applicable to the award of statutory damages55 under section 38.1 of the Act. Currently, statutory damages range from $500 up to a maximum of $20,000 per work infringed (current subsection 38.1(1) of the Act). Under Bill C-32, the amount of statutory damages available to the copyright holder becomes dependent upon the commercial or non-commercial purpose of the infringement (proposed paragraphs 38.1(1)(a) and (b)). The current range of statutory damages would apply to cases of infringement for commercial purposes only. The bill limits the availability of statutory damages in cases of infringement for non-commercial purposes, and caps their amount at between $100 and $5,000 for all infringements in a single proceeding for all works. This reduced damage award would apply, for example, to individuals who download music from peer-to-peer file-sharing services.56 A court may lower the award of statutory damages for commercial infringement if the total award would be, in the court’s opinion, grossly out of proportion to the infringement (proposed subsection 38.1(3) of the Act). As well, the clause adds a proportionality requirement for damages for non-commercial infringement (proposed paragraph 38.1(5)(d) of the Act).57
Clause 47 contains new provisions for technological protection measures and rights management information as well as liability of providers of network services (or internet service providers) or information location tools, at proposed sections 41 to 41.27 of the Act.
Clause 48 makes it a criminal offence to circumvent a TPM for commercial purposes, with penalties of a fine not exceeding $1,000,000 or imprisonment for a term not exceeding five years, or both, if convicted on indictment, and a fine not exceeding $25,000 or imprisonment for a term not exceeding six months, or both, upon summary conviction (proposed subsection 42(3.1) of the Act).
Clause 49 sets out the limitation or prescription period for civil remedies under the Act (proposed section 43.1 of the Act).
Clause 50 contains a consequential amendment to section 58 of the Act regarding execution of instruments (of an assignment or licence of copyright) for the purposes of implementing the WIPO Internet Treaties.
Clause 51 modifies section 62 of the Act regarding regulations that can be made by the Governor in Council. The clause grants the Governor in Council the power to create regulations specifying the measures that an educational institution must take when delivering lessons to students through the Internet and when making digital copies of a work. The clause also grants the Governor in Council the power to prescribe the procedure for the “notice-and-notice” regime applicable to Internet service providers, web hosting businesses and search engine operators.
Clause 52 modifies subsection 67.1(4) of the Act. Section 67.1 mandates when a collective society must file proposed tariffs to the Copyright Board. According to subsection (4), if the collective society does not file a tariff, then it cannot commence an action without the written consent of the Minister. To the list of actions for infringement that cannot be commenced if no tariff had been filed, clause 52 adds references to the new making available right for performers’ performances and sound recordings found at proposed paragraphs 15(1.1)(d) or 18(1.1)(a) of the Act.
Clause 53 contains a consequential amendment to subparagraph 68(2)(a)(i) of the Act regarding consideration by the Copyright Board or criteria and factors to consider for proposed tariffs and objections. It adds a reference to modified section 20 regarding the right of remuneration of performers.
Clause 54 contains a consequential amendment to subsection 68.2(2) of the Act regarding when proceedings for the collection of royalties are to be barred if royalties are tendered or paid by adding a reference to the making available right for performers and sound recorders found at proposed paragraphs 15(1.1)(d) and 18(1.1)(a).
Clause 55 contains a consequential amendment to subsection 71(1) of the Act regarding the filing of proposed tariffs in particular cases, removing the reference to paragraph 29.6(2), which is repealed by clause 25.
Clause 56 amends subsection 76(2) of the Act regarding when royalties may be recovered by a non-member of a collective society. It also removes the ability of the Copyright Board to set periods during which royalties must be collected for those educational uses that would no longer be subject to a right of remuneration (by proposing repeal of subparagraphs 76(4)(b)(i) and (ii) of the Act).
Clause 57 amends subsection 78(1) of the Act regarding determination extending the jurisdiction of the Copyright Board to award compensation for acts done before recognition of copyright or moral rights, in keeping with amendments in clause 41 (new subsections 33.1(2) and 33.2(2)). These new subsections deal with compensation for infringement in cases involving countries that have become WCT countries after an occurrence that would have amounted to infringement if the countries had been WCT countries at the time.
The Bill contains no proposed modifications to Part VIII of the Act.
Clause 58 amends section 92 of the Act to require a review of the Copyright Act by Parliament every five years (by a committee of the Senate, the House of Commons, or both), rather than a departmental review, which would be referred to a parliamentary committee upon completion.
Clauses 59 to 62 contain transitional provisions. Clauses 59 to 61 ensure that copyright that has expired in photographs is not revived by provisions in the bill. The clauses also grandfather corporations and individuals that were deemed to be authors of photographs under existing provisions so that these persons would continue to hold copyright in those photographs following the coming into force of the new provisions. Rights in other commissioned works are also grandfathered, as copyright in these works would continue to be held by the one who commissioned the works unless agreed otherwise through a contract. Clause 62 clarifies what limitation or prescription periods would apply once the bill came into force.
Clause 63 specifies that the provisions of the bill will come into force on a day or days to be fixed by order of the Governor in Council.
Initial reaction to Bill C-32 was mixed, with media focussing on the TPM provisions of the bill, and whether they trump the fair dealing exceptions found in the Act and the bill. The other aspects of the bill that have since been subject to public comment include the expanded fair dealing exceptions, the absence of any changes to the private copying regime and levy, the “notice-and-notice” regime for ISPs, and the distinction in penalties for commercial or non-commercial infringement.68
At the outset, commentators found the bill to be “flawed but fixable,”69 “a reasonable compromise,”70 “a compromise that leaves no one totally happy,”71 and a controversial piece of legislation for which all interested parties should be given a “fair hearing before rushing to pass this into law.”72
Prior to the introduction of the bill, law professor and “fair copyright” advocate Michael Geist reported that Canadian Heritage Minister James Moore and Industry Minister Tony Clement were unable to reach consensus on the broad framework of a new copyright bill, leaving the Prime Minister’s Office to make the call on the direction of the bill. According to Geist, Minister Moore argued for strong digital lock provisions in support of cultural industries, whereas Minister Clement argued for a more consumer-friendly approach.73
Stakeholder positions on the most debated aspects of Bill C-32, namely the expanded fair dealing provisions and the digital lock provisions, the absence of any change to the private copying levy, and the “notice-and-notice” regime, are as varied as the stakeholders themselves. Record labels, libraries, students, artists, authors, publishers, collective societies, video game creators, professors, consumers, film producers and others have various takes on the different aspects of Bill C-32 depending on how they understand the provisions of the bill will impact them. This section will provide an overview of the positions taken by stakeholders on the most controversial provisions of the bill, as well as positions raised by academics and lawyers with regard to the business models and possible constitutional and privacy concerns with TPMs.
Overall, consumer groups, students, libraries, schools and museums have expressed general approval of the fair dealing and related provisions found in Bill C-32,74 though some advocate a more flexible approach to fair dealing. However, these groups have also expressed varying degrees of concern about the extent to which the TPM or digital lock provisions of the bill could “trump” users’ use of legitimately acquired copyright material. On the other hand, various creator groups and collectives75 have expressed disapproval of or concern with the expanded fair dealing and related provisions found in the bill, owing to perceived loss of revenue. This is particularly with regard to the proposed addition of “education” to the Act’s section on fair dealing.
Some groups, such as record labels,76 are supportive of strong TPM provisions in concert with the expanded fair dealing and related provisions, whereas other groups, such as certain musical artist and performer organizations and collectives would prefer that the private copying levy be extended to digital recording media such as iPods and MP3 players as a way to offset the expanded fair dealing provisions.77
Subsection 91(23) of the Constitution Act, 186778 confers upon Parliament the exclusive jurisdiction to legislate in relation to copyrights, whereas subsection 92(13) of the Constitution Act, 1867 grants the power to legislate with respect to “property and civil rights in the province” exclusively to the provincial legislatures. Some have questioned whether Parliament has the constitutional authority to enact laws regarding digital rights management and technological protection measures to protect works. This is because it is thought that anti-circumvention legislation and controlling access to a work are means of protecting property and also implicate contractual obligations, consumer protection and e-commerce – all areas which fall under provincial jurisdiction – rather than matters relating to copyright, which falls under federal jurisdiction.79
The wide use of TPMs or rights management information could also have an impact on Canadians’ freedom of expression rights.80 This could lead to Canadian Charter of Rights and Freedoms challenges of the provisions if they result in restrictions on freedom of expression.81
In January 2008, before the June 2008 introduction of Bill C-61, the government’s previous attempt at copyright reform, federal Privacy Commissioner Jennifer Stoddart wrote a letter to the Ministers of Industry and Canadian Heritage expressing concern about how the use of digital rights management or technological protection measures to prevent copyright infringement could have a negative impact on the privacy rights of Canadians.82 The Privacy Commissioner’s concerns arose from her mandate under the Personal Information Protection and Electronic Documents Act83 (PIPEDA), which stipulates that entities engaged in commercial activities may collect, use or disclose personal information “only for purposes that a reasonable person would consider are appropriate in the circumstances”; it also states that only the personal information necessary for that purpose may be collected, used or disclosed. According to PIPEDA, except in specified situations, personal information may not be collected, used or disclosed without the knowledge and consent of the individual to whom the personal information relates. In her letter, the Privacy Commissioner expressed concern about the ability of TPMs to collect, use and disclose personal information without consent.84
In her 2008 letter, the Privacy Commissioner also noted that the means exist to circumvent TPMs and thus prevent the collection of personal information, though she observed that previous proposals to amend the Copyright Act contained anti-circumvention provisions. As described above, however, Bill C-32 contains an exception to the anti-circumvention provisions for verification as to whether a TPM permits the collection or communication of personal information (at proposed section 41.14). The Privacy Commissioner has not indicated, as of yet, whether this exception can be considered sufficient.
Bill C-60, the 2005 attempt at copyright reform, took a different approach to TPMs. Proposed subsection 34.02(1) of Bill C-60 provided the following:
An owner of copyright in a work ... [is], subject to this Act, entitled to all remedies ... for the infringement of a right against a person who, without the consent of the copyright owner or moral rights holder, circumvents, removes or in any way renders ineffective a technological measure protecting any material form of the work, the performer’s performance or the sound recording for the purpose of an act that is an infringement of the copyright in it or the moral rights in respect of it or for the purpose of making a copy referred to in subsection 80(1) [author’s emphasis].85
Bill C-60, unlike Bills C-61 and C-32, contained language specifying that infringement of a digital lock would only constitute a violation of the Act if the breaking of the lock was in order to infringe copyright. Bill C-32, by not including any limiting language regarding the purpose of infringement, casts a wider net than Bill C-60.
Dalhousie law professor Graham Reynolds has criticized Bill C-32’s approach as undermining “the balance between copyright owners and other parties that Bill C-32 purports to achieve. If the bill is passed in its current form, users, consumers, follow-on creators, and future innovators can effectively be prevented from exercising their rights – both those that existed before Bill C-32 and those introduced by it – through the application of a digital lock. Criticism, research, education, creativity, and innovation may suffer as a result. Such an amendment risks impoverishing the values underlying the constitutionally protected right to freedom of expression, and may not withstand the scrutiny of the Charter of Rights and Freedoms.”86 He argues that balance can be achieved by reverting to the language in Bill C-60, making it an offence to circumvent a TPM for an infringing purpose. According to Reynolds, the language in Bill C-60 containing the proviso “for an infringing purpose” is consistent with the two 1996 WIPO Internet Treaties, and would enable copyright owners to fight against copyright infringement in the digital age while ensuring that all other parties are not prevented from exercising their rights.
University of Ottawa law professor Michael Geist has written extensively on the TPM provisions of Bill C-32, arguing that TPM circumvention should be permitted for lawful purposes.87 Together with Keith Rose, he has drafted alternative language for the TPM provisions of the bill that he posits “is compliant with the WIPO Internet Treaties, provides legal protection for digital locks, and maintains the copyright balance.”88 He proffers two approaches. The first approach would involve amending the definition for “circumvent” to account for only infringing purposes:
Replace the definition of “circumvent” in section 41 as follows:
“circumvent” means,
(a) in respect of a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure,” to descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological protection measure, for any infringing purpose, unless it is done with the authority of the copyright owner; and
(b) in respect of a technological protection measure within the meaning of paragraph (b) of the definition “technological protection measure,” to avoid, bypass, remove, deactivate or impair the technological protection measure for any infringing purpose.
Alternatively, the second approach would be to add an explicit exception for circumvention for lawful purposes:
Add subsection 41.1(5) and (6) as follows.
Lawful purpose
(5) Paragraph (1)(a) does not apply if a technological protection measure is circumvented for any lawful purpose.
(6) Paragraphs (1)(b) and (c) do not apply to a person who supplies a service to a person referred to in paragraph (5) or who manufactures, imports or provides a technology, device or component, for the purposes of enabling anyone to circumvent a technological protection measure in accordance with this Act.
However, Dr. Mihály Ficsor, former Assistant Director General of WIPO and author of the WIPO Guide to Collective Administration of Copyright and Related Rights, argues that in order for the anti-circumvention provisions in the WIPO Internet Treaties to be enforceable, the broader language found in Bill C-32 is necessary. He takes specific issue with Professor Geist’s proposals, writing,
... I noticed that the blogger [referring to Michael Geist] has now made specific recommendations for amendments to the TPM provisions in the bill. These include, among other things, limiting the protection of TPMs to circumvention for an infringing purpose. He proposes instead an exception that circumvention be permitted ‘for any lawful purpose.’ It should be clear from my commentary that these proposals would not provide adequate legal protection for TPMs and would not result in a bill that would comply with the Internet Treaties.89
According to Dr. Ficsor,
... the effective TPMs that the Contracting Parties of the Treaties must protect include all those ‘that restrict acts in respect of’ protected works, performances and phonograms, including acts of gaining access to them. From the viewpoint of this obligation, it should not be necessary to prove that the prohibited acts of circumvention constitute, or specifically further, infringements (i.e., unauthorized copying, communication to the public, or some other exercise of an exclusive right of the copyright owner). If the Diplomatic Conference had intended to necessarily link the prohibition of the acts involved to infringements, it would have provided it, as it did so in the case of the prohibited acts concerning rights management information. [See Article 12 of the WCT and Article 19 of the WPPT.] It did not, because the delegations recognized that requiring proof of a direct link to copyright infringement would cut the heart out of the anti-circumvention obligation.
In sum, according to Dr. Ficsor, “to apply legal prohibitions against circumvention only when they also involve actual or attempted copyright infringement would be to misapprehend the very purpose of the relevant provisions of WCT and WPPT.”
Generally speaking, recording artists and the collectives that represent them90 favour extending the private copying regime found in Part VIII of the Copyright Act to digital recording devices such as iPods and MP3 players. This is often couched as a sort of “offset” to the proposed fair dealing and related provisions found in Bill C-32. Retailers, on the other hand, are opposed to the extension of the private copying levy, while record labels see the levy as being of limited value while risking legitimizing the laundering of illegally acquired music.91
The private copying regime set out in Part VIII (sections 79 to 88) of the Copyright Act is aimed at compensating rights holders for the economic losses they incur from the copying of sound recordings by individuals onto “blank audio recording media.” Private copying is not an example of “fair dealing,” which is a different legal concept. In the course of the past decade there has been disagreement as to whether digital recording devices with non-removable memory such as MP3 players can fall within the definition of an “audio recording medium” and be subject to the private copying royalty regime. Various Federal Court of Appeal decisions have overturned the Copyright Board’s determinations that MP3 players can be “audio recording media,” ruling that the Board does not have jurisdiction to impose a levy on memory permanently embedded in digital audio recorders and that the levies that had been set on such devices are invalid.92
In March 2010, New Democratic Party Member of Parliament Charlie Angus introduced a private member’s bill aimed at extending the private copying levy to digital audio recording devices.93 Both Industry Minister Tony Clement and Canadian Heritage Minister James Moore rejected the bill as a “tax on iPods” and other portable devices that would hurt consumers.94
In a 2005 paper prepared for Industry Canada titled Economic Impact of Options for Reforming the Private Copying Regime, author Ronald Hirshhorn noted, “The private copying system will impact on stakeholders quite differently in coming years depending on whether or not the government introduces an amendment to bring digital audio recording devices (DARs) under the Act.”95 Hirshhorn raises a number of interesting points, including the possible relationship between the extension of the levy and illegal downloading, the fact that a music purchaser might effectively compensate a rights holder twice,96 and whether significantly higher levies would be the result should the eligible repertoire of rights holders be expanded to include makers and performers in other WPPT countries, leaving Canadian rights holders with a smaller portion of royalty payments.97
As described above, the proposed “notice-and-notice” regime requires ISPs to forward any notice of infringement they receive from copyright owners to the subscriber in question. On the other hand, a “notice-and-takedown” regime typically requires an ISP to block access to material upon receipt of a notice from a rights holder that alleges such material to be infringing. The obligation to block access lies with the ISP whose facilities are being used to host the allegedly infringing material. Under Canadian law, the courts already have the ability to order the takedown of infringing material in appropriate cases. In a “notice-and-takedown” regime, no court order is required. A “graduated response” approach, on the other hand, would involve consumers being disconnected from the Internet after a number of notification letters warning that they are violating copyright.
Some labels and business organizations have expressed support for some form of graduated response regime (for example a “three-strikes” approach akin to what is being tried in France and the United Kingdom),98 while ISPs, educational institutions and consumer groups have indicated that the proposed “notice-and-notice” regime, which is already being voluntarily used, is more appropriate. In a letter to Michael Geist, Bloc Québécois MP Carole Lavallée wrote that a graduated response regime would be “consistent with the Bloc Québécois’s desire to see professional pirates severely punished and to discourage wrongdoers who do not know the law.” She added that at first glance, the “notice-and-notice” regime proposed in Bill C-32 “does not appear to be enough, since it assigns no responsibility to the ISPs and places the burden of proof (and investigation) on the creators.”99 Intellectual property lawyer Barry Sookman takes a more robust position, arguing that the “notice-and-notice” regime may be inadequate and that a “notice-and-takedown” system “is required to effectively deal with operators of pirate sites that infringe content on a substantial scale and to deal promptly with time-sensitive postings.”100
The “notice-and-notice” regime has been present in the government’s past three attempts at copyright reform – Bills C-60, C-61 and C-32. In response to frequently asked questions regarding Bill C-60, Industry Canada noted that a “notice-and-notice” regime would be maintained “in accordance with Charter of Rights considerations.”101 Indeed, concern has been raised that a “notice-and-takedown” regime could create incentives for ISPs to remove content without warning or evidence of actual infringement, which can potentially lead to a stifling of free expression.102 As well, the Industry Canada website argues that a “notice and takedown” regime would actually be ineffective in preventing peer-to-peer file sharing, as “notice and takedown” “typically applies only to material posted on websites. It is not well suited to files shared on peer-to-peer networks, the most prevalent source of infringing material, since the files are actually located on the computers of the persons engaged in sharing.”103
Of note, in 2008 the Privacy Commissioner of Canada raised concerns about the privacy implications of requiring ISPs to retain personal information for the purposes of the regime.104 As she observed, “PIPEDA requires that organizations retain personal information for only as long as necessary to fulfill the purposes for which the information was originally collected. Limiting the extent of data collection and period of retention is a key strategy to minimize the risk of data breaches of personal information.”
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]
(615 Kb, 24 pages), WIPO Publication 909(E), n.d. [ Return to text ] (615 Kb, 24 pages), pp. 8–13. [ Return to text ] (343 Kb, 43 pages), Copyright Policy Branch, Canadian Heritage, June 2007. [ Return to text ] (151 Kb, 22 pages), n.d. [ Return to text ] (151 Kb, 22 pages), p. 17. [ Return to text ] (665 Kb, 44 pages), May 2004. [ Return to text ] (29 Kb, 3 pages), February 2008. [ Return to text ] (235 Kb, 60 pages), Pub. L. No. 105-304, 112 Stat. 2860 (28 October 1998). [ Return to text ] (141 Kb, 20 pages), June 2010. [ Return to text ] (308 Kb, 88 pages),” 17 November 2006). For the Determination of the Librarian of Congress and Text of the Regulation for November 2006, see United States, Federal Register, Rules and Regulations, “Exemption to Prohibition on Circumvention of Prohibition of Copyright Protection Systems for Access Control Technologies,” 27 November 2006, pp. 68472–68480. [ Return to text ] (83 Kb, 2 pages),” News release, Montréal, 16 June 2010; Union des écrivaines et écrivains Québécois, “Projet de Loi sur le droit d’auteur : les auteurs dépouillés,” News release, Montréal, 28 June 2010; SOCAN, “SOCAN pleased that government has tabled new copyright legislation,” News release, 4 June 2010; Access Copyright, “Access Copyright Is Deeply Concerned by the Government’s Lack of Support for the Remuneration of Creators Through Collective Licensing,” News release, Toronto, 3 June 2010; Canadian Private Copying Collective, “Proposed Copyright Law Fails Canadian Artists: Survey shows Canadians support fair compensation to artists and extending the levy to MP3 players (78 Kb, 2 pages),” News release, Toronto, 2 June 2010. Note that a comprehensive list of Canadian collective societies is accessible at Copyright Board of Canada, Copyright Collective Societies. [ Return to text ] (25 Kb, 2 pages),” News release, Toronto, 2 June 2010; Entertainment Software Association of Canada, “Canadian Video Game Industry Welcomes Strong Action on Copyright,” News release, Toronto, 2 June 2010. [ Return to text ] (78 Kb, 2 pages),” News release, Toronto, 2 June 2010. [ Return to text ] (304 Kb, 38 pages),” in Michael Geist, ed., In the Public Interest: The Future of Canadian Copyright Law, Irwin Law, Toronto, 2005, pp. 89–124. [ Return to text ] (800 Kb, 15 pages),” in Copyright and Human Rights, ed. Paul Torremans, The Hague, Kluwer, 2004, pp. 21-36; David Fewer, “The Constitutionalizing Copyright: Freedom of Expression and the Limits of Copyright in Canada,” University of Toronto Faculty of Law Review, Vol. 55, No. 2, 1997, p. 175; Jeremy de Beer, “Copyright & Free Expression: Why Can’t Courts Get it Right?” 26 September 2007. [ Return to text ] (141 Kb, 20 pages) (2010). [ Return to text ] (185 Kb, 21 pages),” 16 June 2010. [ Return to text ] (78 Kb, 2 pages)” (2010). [ Return to text ] (52 Kb, 1 page),” Toronto, 23 April 2010. See also Andrew Mayeda, “Major music labels say iPod tax wouldn’t be enough to protect recording industry,” The Vancouver Sun, 22 April 2010. [ Return to text ] (614 Kb, 97 pages), 12 December 2003. In December 2004, however, the Federal Court of Appeal ruled that the Board does not have jurisdiction to impose a levy on memory permanently embedded in digital audio recorders and that the levies that had been set on such devices are invalid (Canadian Private Copying Collective v. Canadian Storage Media Alliance (F.C.A.) [2005] 2 F.C. 654, 2004 FCA 424. On 28 July 2005, the Supreme Court denied the CPCC’s application for leave to appeal the Federal Court’s decision (Supreme Court of Canada, Bulletin of Proceedings, Judgments on Applications for Leave, 28 July 2005, #30775, Canadian Private Copying Collective (CPCC) v. Apple Canada Inc. [et al.]. On 19 July 2007 the Copyright Board decided to go ahead with its planned hearing to certify a levy of up to $75 on iPods and other digital recording devices with non-removable memory (Copyright Board of Canada, FILE: Private Copying 2008–2009, Copying for Private Use, Decision of the Board (288 Kb, 42 pages), 19 July 2007. On 10 January 2008, in a quick and brief pronouncement, the Federal Court of Appeal quashed the Copyright Board’s decision, telling the Board that the Court’s previous decision on the same issue from 2004 is “dispositive.” Justice J. A. Sharlow of the Federal Court of Appeal, said: “I read that case as authority for the proposition that the Copyright Board has no legal authority to certify a tariff on digital audio recorders or on the memory permanently embedded in digital audio recorders. That proposition is binding on the Copyright Board. It follows that the Copyright Board erred in law when it concluded that it has the legal authority to certify the tariff that CPCC has proposed for 2008 and 2009 on digital audio recorders, and in dismissing the applicants’ motions.” (Apple Canada Inc. v. Canadian Private Copying Collective, 2008 FCA 9 (2008)). [ Return to text ] (1.8 MB, 4 pages) (Re: Bill C-32, An Act to amend the Copyright Act, the Copyright Modernization Act, 2010), 28 June 2010. France’s Loi relative à la protection pénale de la propriété littéraire et artistique sur internet (also known as “HADOPI,” the name of the government agency created by the law) allows for the suspension of Internet connectivity for a period of time following the determination by a judge, after two warnings of illegal downloading. The law has faced a number of hurdles but seems to be moving closer to implementation while at the same time encountering greater opposition. See Benjamin Ferran, “À l’UMP, le front des partisans de l’Hadopi se fissure,” Le Figaro, 8 July 2010. In April in the United Kingdom, MPs voted to pass the “Digital Economy Bill,” which contains proposals regarding the suspension of repeat filesharers’ Internet connections and includes measures that would allow politicians to block pirate websites without primary legislation. See Emma Barnett, “MPs pass Digital Economy Bill,” The Telegraph, 8 April 2010. [ Return to text ]© Library of Parliament
