After more than a decade of debate and three failed attempts at reform, the Canadian government has now brought the Copyright Modernization Act into effect. The purpose of the legislation is to assist in meeting the perceived realities of the digital era. The legislation also aims to further ensure that Canadian copyright law is technologically neutral.
The following examples highlight some of the most significant changes brought into effect by the new legislation:
- Fair dealing expanded. Fair dealing permits use of copyrighted material without permission for certain specified purposes, when it is fair to do so. Fair dealing has been expanded to include new purposes in the areas of education, satire and parody.
- The "mash-up" provision. The new law permits the use of publicly available works for non-commercial purposes. To do so, users must identify the source of the copyrighted work (where reasonable), and the use must not have a substantial adverse effect on the exploitation of the work.
- Limits on Internet Service Provider liability. The new law reinforces that ISPs are not liable for copyright infringement when they act strictly as intermediaries in communication, caching and hosting activities.
- Prohibition on breaking "digital locks." Digital locks or "technological protection measures" are a form of digital rights’ management used by copyright owners to prevent unauthorized use of their material, such as digital music, DVDs, and software. The new legislation specifically prohibits the circumvention or breaking of these technological protection measures.
- Notice and notice system introduced. Under the new regime, if an ISP receives a proper notice regarding a third party’s infringing activities, the provider is required to forward the notice electronically to the third party (and retain any identifying records that could be used against the third party for a fixed period of time). ISPs that fail to do so may be liable for civil damages.
The legislation also addresses some of Canada’s outstanding international treaty obligations. Although Canada has already ratified and acceded to a number of international treaties relating to copyright,1 it had not – until the new legislation was proclaimed into force – ratified its obligations under the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. These two treaties, commonly referred to as the "WIPO Internet Treaties," were signed in 2002 and cover, among other things, protection for authors of literary and artistic works, as well performers and producers of sound recordings.
The predecessor bill (with identical provisions), Bill C-32, was the topic of Torys’ bulletin Canada Proposes Major Changes to Copyright Law, June 15, 2010, which discussed the purpose of the legislation and many of the significant reforms in greater detail.
1 A list of all international treaties relating to intellectual property that Canada has signed, ratified or acceded to can be accessed here.
To discuss these issues, please contact the author(s).
This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.
For permission to republish this or any other publication, contact Janelle Weed.
© 2019 by Torys LLP.
All rights reserved.