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Proposed Canadian Copyright Reform — Bill C-61


August 28, 2008

After much anticipation, the federal government released Bill C-61, An Act to Amend the Copyright Act. If passed, the Bill will (i) amend the Copyright Act in order to implement the World Intellectual Property Organization Copyright Treaty (WCT) and Performances and Phonograms Treaty (WPPT), (ii) create exceptions for certain uses of copyright material for private purposes, (iii) create exceptions for Internet service providers (ISPs), and (iv) permit certain uses for educational and research purposes of Internet and other digital technologies.

Bill C-61 passed its first reading in the House of Commons on June 12, 2008, but died on the order paper when the Conservative Party called a federal election on September 7, 2008. Thus it met the fate of its predecessor, Bill C-60, which also attempted to reform copyright law consistent with the WCT and WPPT treaties.

In its throne speech on November 19, 2008, the Conservative Party stated that it will "proceed with legislation to modernize Canada's copyright laws and ensure stronger protection for intellectual property." It appears likely that the Conservative Party will again seek to implement reforms to copyright law as it has attempted to do previously. The article below, commenting on Bill C-61, informs the ongoing debate regarding this next round of copyright law reform.

Implementation of WCT and WPPT

(a) Making available

The bill contains a making available right that applies to sound recordings. There is no express enactment of a making available right for works such as music, computer programs, books and films. In briefing documents accompanying the bill’s introduction, the government stated that this right already exists in Canadian law for works.

(b) Protection of technological protection measures (TPMs)

The bill contains legal protection against the circumvention of technological measures. It includes provisions against both circumvention of access control TPMs and trafficking in access control and copy control TPMs. It also includes generally accepted exceptions to the prohibitions on circumvention to allow for reverse engineering, security testing and encryption research, and creation of interoperable computer programs, and to enable persons with perceptual disabilities to access materials and consumers to protect their personal information.

The bill creates remedies for the circumvention of access control TPMs including injunctive relief, damages and statutory damages of up to $20,000. However, statutory damages are available only if the purpose of the circumvention is to enable infringement.

(c) Distribution and performers’ rights

The bill contains a number of other provisions designed to implement the WPPT and WCT:

  • a distribution right to allow owners of works to control the distribution of tangible copies of copyright works, which provides control over the first sale of a medium such as a CD or DVD;
  • an extension of the term of protection for producers and performers of sound recordings to 50 years after the publication of the recording;
  • a reproduction right for performers to authorize the direct and indirect reproduction of their performances by,
    for example, broadcasters, consumers and record producers; and 
  • a moral rights provision for performers.

Exceptions for Private Uses of Copyright Material and Remedies for Violations

The bill contains a number of exceptions for private-non-commercial use:

(a) Private use of music exception

The bill will permit individuals to copy a legally acquired sound recording to each separate device they own, such as an iPod or other MP3 player and a computer. The copy must have been legally obtained; it cannot be borrowed or rented. The copy must also be made for private purposes. Also, the right to make copies for the exception is subject to any terms of use agreed to by the individuals with an online music site.

(b) Time-shifting exception

The bill will permit individuals to make a single recording of a television or radio program, including on-demand programs,
cable and satellite programs, and programs aired simultaneously on the Internet and TV or radio. No further copies can be made, and time-shifted copies cannot be sold, distributed or performed in public. The bill would also prohibit individuals from creating libraries of digital copies for subsequent viewing. Individuals could keep the recording no longer than necessary in order to listen to or watch the program at a more convenient time.

(c) Format-shifting exception

The new provisions respecting format-shifting allow users to make one copy of content they own for each device (e.g., a copy of a videocassette onto a DVD for use in a home device). The copies must be made for private purposes and cannot be given or sold to someone else. If the user sells or gives away the original, they must destroy all copies that they have made. The provision is restricted to content in certain formats, specifically books, periodicals, newspapers, photographs and videocassettes.

(d) Statutory damages amendments

The bill would substantially reduce the potential liability of individuals who infringe copyright for private, non-commercial purposes to a maximum fine of $500 for all infringements involved in the suit, regardless of the number of copies made, the number of different works copied or the number of owners who pursue claims against the individual. Commercial infringers could still be liable for up to $20,000 in damages for each work infringed (e.g., posting music using the Internet or peer-to-peer [P2P] technology).

In all cases, the court would retain the power to award damages, including punitive damages, to ensure an appropriate deterrent against future infringement.

Internet Service Providers

The bill contains exceptions for search engines such as Google and Yahoo and for ISPs where they act as a mere conduit, provide caching or provide hosting services. The immunities also apply in most cases, even if the ISPs have knowledge of infringing activities.

The bill does not adopt a notice and takedown regime as exists in the US and Australia, but rather prescribes a "notice and notice" regime to address dealing with online infringement. That is, the ISPs would have to pass on notices from the content holder to the subscriber. Upon receipt of a notice, ISPs must also retain for prescribed periods information required to identify infringers. The failure to comply with the notice and notice regime results in a fine in the range of $5,000 to $10,000.

Access for Research and Education

The bill contains several provisions to address concerns from educators and research about reasonable access by:

  • allowing schools to use publicly available material that has been legitimately posted on the Internet by rights holders to sites that are not protected by TPMs, or which do not contain a clearly visible notice that prohibits the relevant act;
  • allowing schools to transmit materials used in classroom study to students located off-campus so that they can interact with the teacher during the lesson or view it at a time chosen by them, provided that the institution takes reasonable measures to restrict access to students only;
  • allowing schools that already have licences to make photocopies of works to make digital copies of those works to send to students, subject to payment; and enhancing the ability of researchers to gain quicker access to material stored in distance libraries via the Internet.

McCarthy Tétrault Notes:

According to the government, the reforms in Bill C-61 represent a balance between the rights of copyright owners and the needs of users to access copyright works. From the content holders’ perspective, the adoption of the WIPO treaties, the protection of TPMs and the legal remedies for unauthorized copying are welcome changes. As well, the amendments should help ISPs to clarify their liability in cases of infringement. The bill is also very favourable for individual users of copyright materials.

This article previously appeared in McCarthy Tétrault Co-Counsel: Technology Law Quarterly.