The Copyright Modernization Act (C-11) has passed parliament and received Royal Assent. The Act makes significant amendments to various aspects of the Copyright Act including to fair dealing, technological protection measures, educational use and performer’s rights. It comes into force on a date to be fixed by cabinet, likely with corresponding regulations.
Over 10 years have past since the last substantial amendments and Bill C-11 was the 4th attempt at amending the Copyright Act. Previous bills were introduced in 2005 (Bill C-60), 2008 (Bill C-61), and 2010 (Bill C-32) but did not pass parliament. Bill C-11 received third reading in the Senate this afternoon and Royal Assent earlier this evening as announced in government press release.
Changes to the Copyright Act were seen as necessary to make Canada’s legislation in compliance with the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) as well as deal with technological change.
Several key amendments are made in the Copyright Modernization Act (section references are to the amended version of the Copyright Act):
- technological protection measures (TPMs) – One of the more contentious amendments related to TPMs – technical functionality which blocks users from performing certain actions with copyrighted works – and establishing prohibitions on circumventing these TPMs (Sections 41 through 41.24).
- performers – performers have a copyright which gives them the sole right to make recordings of their performance available to the public (Section 15). This ‘making available’ right is contained within the WCT and WPPT. The amendments also clarify that making a work available so that it can be accessed is considered a ‘communication to the public’ (Section 2.4). This is directed to situations such as where a work is stored on a server or website and others can download the work on demand. The amendments also provides for ‘moral rights’ for performers and a term of 50 years from the date of performance (Sections 15, 23, 28.1 and 28.2). Many of the changes relating to performers are present in the recently signed Beijing Treaty on Audiovisual Performances.
- photography – Previously, copyright in photographs was handled slightly differently than other forms of copyright (such as in previous Section 10). Changes are made to align copyright in photographs to be more similar with other types of copyright. For example, with these amendments the photographer owns the copyright even if the photo was commissioned (Section 32.2).
- fair dealing – new types of fair dealing are added for education, parody and satire (Section 29).
- non-commercial uses – The amendments also add provisions for non-commercial ‘mash-ups‘ (new works made from combinations of copyright protected works and original works – Section 29.21), format-shifting (converting works to other mediums – Section 29.22) and time-shifting (fixing a broadcast for re-playing later – Section 29.23). These uses are all subject to the user obtaining legally copies, owning the legal copy and not circumventing any technological protection measures.
- education – In addition to the new fair dealing exception, new sections make permitted activities for educational institutions more technologically neutral and clarify what is and is not permitted (Sections 29.4, 29.5, 30.01, 30.02, 30.03, 30.04).
- technical reproductions – Certain exceptions to copyright are added relating to security research and for technical reasons (Sections 30.6, 30.61, 30.62, 30.63, and 30.71).
- internet service provider liability – Certain exceptions for ISP liability for copyright infringement are added relating to ISPs being intermediaries, caching and unknowingly hosting content (Section 31.1) A notice-and-notice system is established for ISPs (Section 41.25 to 41.27).
- statutory damages – Current ranges for statutory damages of $500 to $20,000 are maintained only for commercial infringement. Non-commercial statutory damage are set at $100 to $5000 for all infringements in a single proceeding for all works (Section 38.1).
The Parliamentary website has a helpful summary of the various provisions.
The amendments included in the Copyright Modernization Act will come into force upon a date set by the Governor in Council. This will likely be in several months as regulations relating to several of the provisions have to be established.