Publication
title
Proposed Amendments to the Copyright Act
DATE
June 29, 2005
EXPERTISE
On June 20, 2005, the Minister of Canadian Heritage, Ms. Liza Frulla, tabled Bill C-60 containing proposed amendments to the Copyright Act. A government news release issued the same day indicated that the bill "is intended to implement the provisions of the 1996 World Intellectual Property Organization (WIPO) Treaties, clarify liability for Internet service providers, facilitate the use of new technologies for educational and research purposes, and harmonize the treatment of photographers with that of other creators."
If adopted as is, these amendments would result in substantial changes to the current Act. This information bulletin discusses the content of the changes and the reform process that led up to them.
The copyright reform process
The Copyright Act was last amended in 1997. Among the changes made at the time was a provision calling for the Minister of Industry to file, by September 2002, a report on the Act as amended in 1997 and on the consequences of its application. The report, entitled "Supporting Culture and Innovation: Report on the Provisions and Operation of the Copyright Act" (the "Ministerial Report"), drew up a list of key issues in respect of which the Government hoped to effect legislative change and grouped them into three categories: the issues that should be targeted for reform in the short term, i.e., within one to two years following publication of the report, those that should be the subject of reform in the medium term (within two to four years) and those that should form part of a long-term reform agenda (beyond a four-year time horizon).
The following were identified in the Ministerial Report as the issues to be addressed in the short term: issues related to the WIPO Copyright Treaty ("WCT") and the WIPO Performances and Phonograms Treaty ("WPPT"), treaties signed but not yet ratified by Canada; liability of Internet service providers; photographic works; access and education (use of material accessible on the Internet for educational purposes); and term of copyright in an unpublished work.
Public consultations were held on these issues, and in May 2004, the Standing Committee on Canadian Heritage published the "Interim Report on Copyright Reform" (the "Parliamentary Report"), which contained recommendations on each of the short-term agenda issues identified in the Ministerial Report EXCEPT the issue of unpublished works.
Bill C-60 is now being introduced in the context of that same short-term reform agenda established by the Government. The bill contains proposed legislative amendments pertaining to each of the key issues identified in the Ministerial Report EXCEPT the issue of unpublished works, but does not address all of the recommendations put forward in the Parliamentary Report. The following is an overview of the amendments being proposed.
New categories of rights
Bill C-60 proposes to recognize certain new rights, which include the following:
- Right of performers and of makers of a sound recording to make the recorded performance available to the public in a way that allows members of the public to access it through telecommunication from a place and at a time individually chosen by them;
- Exclusive right to transfer ownership for the first time of a tangible, material form of a work the ownership of which has never previously been transferred; this change would take the form of an addition to the rights conferred by section 3, as well as amendments to sections 15 and 18 which would extend this right to performers and to makers of a sound recording;
- Moral rights of performers with respect to the visual representation and sound recording of their performances.
New exceptions to copyright infringement
The bill includes certain special provisions regarding "lessons", defined as any lesson, test or examination in which a work is copied, reproduced, translated, performed in public or otherwise used on the premises of an educational institution. The proposed amendments provide that communicating a lesson to the public by telecommunication, making a fixation of the lesson, or any other act necessary for those purposes would not be an infringement of copyright if the public to whom the lesson is being communicated consists only of students enrolled in a course or instructors acting under the authority of an educational institution. However, the instructor or institution would have an obligation to destroy any fixation of the lesson within 30 days after the course ends, take reasonable measures to prevent any subsequent reproduction or communication of the lesson, and keep a record of the information about the fixations that were made, for a period of three years.
One of the proposed amendments also specifies that it would not be an infringement of copyright for an educational institution which has entered into a reprographic reproduction agreement with a collective society, to make reproductions in digital form of the works covered by the agreement, provided two conditions are met: the institution complies with all the licence terms and conditions, including payment of the same royalty it would have paid for a reprographic reproduction, AND takes reasonable measures to prevent any communication or further reproduction of the digital reproduction. However, this provision would not be of mandatory application; hence the agreement could expressly prohibit digital reproduction.
New types of infringement
The bill clarifies the scope of the exception pertaining to copies made for private use. The proposed amendments would make it an infringement of copyright for a person to knowingly sell, rent out, expose by way of trade, distribute, whether or not for the purpose of trade, or perform or cause to be performed in public a copy of a work which copy was made for private use. Communication of the copy by telecommunication to the public, or to one or more specific individuals, would also be prohibited. Thus the private-use copy itself would still be legal, but sharing it with others would be clearly prohibited.
The exception for private study or research would be further narrowed. The making of a copy in digital form by a library, archive or museum would be an infringement of copyright unless measures are taken to prevent the making of any reproduction of the copy other than a single printing and to ensure that such printing is not used for more than seven days.
It would also be an infringement of copyright for a person to sell or rent out a lesson or a fixation of a lesson or distribute one by way of trade or to such an extent as to prejudicially affect the owner of copyright.
New remedies
Included in the proposed amendments are a number of new remedies. One such remedy would lie against a person who knowingly removes or alters rights management information or circumvents a technological measure protecting a material form of a work, performance or sound recording. A second would avail against a person who sells, rents out, imports, communicates to the public by telecommunication or distributes by way of trade or to such an extent as to prejudicially affect the owner of copyright, a material form of a work, performance or sound recording where the person concerned knows or ought to know that the rights management information has been removed or altered. A third remedy would be available against a person who offers a service designed to render ineffective a technological measure protecting a material form of a work, performance or sound recording, and another against a person who sells, rents out, imports or distributes by way of trade or to such an extent as to prejudicially affect the owner of copyright, a material form of a work, performance or sound recording where the person concerned knows or ought to know that a technological measure protecting it has been removed or rendered ineffective. Lastly, injunctive relief would be available against a provider of information location tools who infringes copyright by making or caching a reproduction of a work, but this latter remedy would be limited to specific situations.
Photographic works
Photographic works would now be protected under the general provisions of the Act and not under special provisions. Thus, the bill provides for the provisions pertaining to commissioned photographs, the special term of copyright in photographs and the authorship of a photograph (ss. 10 and 13(2) of the Act) to be repealed.
Liability of Internet Service Providers ("ISPs")
Under the proposed amendments, it would be specifically stated in the Act that ISPs would not be infringing copyright in a work merely by providing the means of telecommunication or reproduction of the work. ISPs would also be relieved of all liability for the hosting of material that could give rise to a remedy for infringement of copyright or for the caching of a reproduction of a work, on condition that they abide by certain conditions set out in the Act.
A "notice and notice" system would be set up, whereby a person claiming infringement of copyright would send a notice to the ISP hosting the site of the alleged infringer. The notice of claimed infringement would have to specify the location data for the electronic location to which the claim of infringement relates. On receiving the notice, the ISP would have two obligations: first, to forward the notice electronically to the alleged infringer, and secondly, to retain, for a period of six months, a record allowing the identity of the person owning the electronic location identified in the claimant's notice to be determined. Failure to perform either of the said obligations would render the ISP liable for statutory damages of up to $5,000 for failure to forward the notice and/or up to $10,000 for failure to retain the information. Thus ISPs would not have the right or the obligation to remove access to the infringing material. Hence Canada is opting for a very different system from that of the United States, which has a "notice and take-down" system.
Other proposed amendments
The proposed legislation would also change the term of protection afforded to sound recordings. There is also an attempt to adapt the Act to new technologies, for example by defining, in section 2.4(1) of the Act, communicating a work to the public by telecommunication to include making the work available to the public "in a way that allows members of the public to access it through telecommunication from a place and at a time individually chosen by them."
Timetable
As it was introduced in first reading on June 20, 2005, the bill will continue making its way through the parliamentary process in the fall. Accordingly, it is unlikely to be passed or proclaimed in force before the winter, or even next spring.
The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault or any member of the firm on the points of law discussed.
Contacts
Claude Brunet
Montréal
514.847.4726
cbrunet@ogilvyrenault.com
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David R. Collier
Montréal
514.847.4539
dcollier@ogilvyrenault.com
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Nicolas Sapp
Québec
418.640.5070
nsapp@ogilvyrenault.com
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Patrick E. Kierans
Toronto
416.216.3904
pkierans@ogilvyrenault.com
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