Copyright Modernization Act - Backgrounder
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In the 2010 Speech from the Throne, the Government of Canada reiterated its commitment to strengthening laws governing intellectual property and copyright in order "to encourage new ideas and protect the rights of Canadians whose research, development and artistic creativity contribute to Canada's prosperity." The bill follows through on this commitment.
In the summer of 2009, the government launched an eight-week national consultation on copyright modernization. Thousands of Canadians, businesses and stakeholder organizations shared their ideas on how to best adapt Canada's copyright framework to the digital age. What the government heard is that Canada needs new laws that are fair and balanced for today's content creators and users and adaptable to respond to the challenges and opportunities of tomorrow.
The bill will give Canadian creators and consumers the tools they need to increase Canada's international competitiveness and will implement the rights and protections of the World Intellectual Property Organization (WIPO) Internet treaties. Negotiated in 1996, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty established new rights and protections for authors, sound recording makers and performers of audio works.
Through this legislation, the government will:
- modernize the Copyright Act, bringing it in line with advances in technology and international standards;
- address the interests of Canadians, from those who create content to the consumers who benefit from it;
- provide a framework that is forward-looking and flexible, which will help protect and create jobs, stimulate our economy and attract new investment to Canada; and
- establish rules that are technologically neutral, so they can be adapted to a constantly evolving technological environment while ensuring appropriate protection for both creators and users.
The following is a summary of what the provisions of the new bill will mean to Canadians.
Creators, performers and copyright owners
New rights for Canadian creators
Canadian creators, performers and artists will benefit from the full range of rights and protections in the WIPO Internet treaties, including an exclusive right to control how their copyrighted material is made available on the Internet.
In addition, the term of copyright protection for sound recordings for performers and producers will be extended to 50 years from the time of publication of a musical performance.
The bill makes photographers the first owner of copyright on their photographs, which will be protected for 50 years after the death of the photographer. People who commission photographs will be able to make personal or non-commercial use of the photos unless there is a contract that specifies otherwise.
Protecting the incentive to create
Provisions in the bill strengthen the ability of copyright owners to control the uses of their online works in order to prevent widespread illicit use and to promote creativity, innovation and legitimate business models. Such provisions include legal protection for rights management information and a new category of civil liability that targets those who enable online piracy.
Copyright owners who choose to apply technological protection measures (TPMs), such as digital locks, to prevent unauthorized access to copyrighted material will benefit from new protection against circumvention, or breaking locks. New rules will also prevent the manufacture, importation and sale of devices that can break digital locks.
Users and consumers
Legitimizing Canadians' everyday activities
Canadians will be able to record television, radio and Internet programming in order to enjoy it at a later time, with no restrictions as to the device or medium they wish to use. Canadians will also be able to copy any legitimately acquired music, film or other works onto any device or medium, such as MP3 players, for their private use, and make backup copies of these works. These provisions do not apply to on-demand services or to material protected by a TPM.
Canadians will also be able to incorporate existing copyrighted material in the creation of new works, such as Internet mash-ups, as long as:
- it is done for non-commercial purposes;
- the existing material was legitimately acquired; and
- the work they create is not a substitute for the original material or does not have negative impacts on the markets and reputation of the original material.
Canadians with perceptual disabilities will be permitted to adapt legally acquired material to a format that they can easily use. The changes also clarify the law regarding the import of adapted material into Canada and explicitly permit the export of certain adapted materials, including braille and audio books.
Protecting Canadians from unreasonable penalties
The bill revises the current provisions for statutory damages to distinguish between commercial and non-commercial infringement, with the latter being subject to reduced statutory damages (i.e., pre-established damages in civil litigation). The legislation also introduces the concept of proportionality in statutory damages.
Clear copyright rules to encourage innovation
For technology companies, the bill will include measures to enable activities related to reverse engineering for software interoperability, security testing and encryption research, including the circumvention of TPMs for these purposes.
The bill clarifies that the making of temporary, technical and incidental reproductions of copyrighted material as part of a technological process is acceptable.
Educators and researchers
More options for educators
The bill includes an extension of the change to the provisions for fair dealing that will enable the use of copyrighted materials for the purpose of education in a structured context, provided the use does not harm the legitimate interests of the copyright owner and appropriate measures have been adopted to prevent abuse, as required. In addition to education, parody and satire have likewise been added as new purposes for fair dealing.
The bill introduces new measures aimed at enriching the educational experience, notably by facilitating use of the latest technologies:
- Teachers and students will be allowed to use copyrighted material in lessons conducted over the Internet. The amendments would apply to teachers and students who are in the physical classroom as well as to those who are participating in the lessons, or viewing recordings of the lessons afterwards using Internet technology. For example, this allows music students — both those in the classroom and those who are participating from a remote location — to perform a copyright-protected song together as part of a lesson.
- Teachers will be allowed to digitally deliver course materials to students, subject to fair compensation to copyright owners. Students will be allowed to print a single copy of these course materials.
- For educational and training purposes, teachers and students will be allowed to use material that they find on the Internet as long as it is has been legitimately posted there by copyright owners without expectation of compensation. For example, teachers and students could make multiple copies of articles found on the Internet and distribute them to classmates.
The bill also adjusts existing provisions to make them more technologically neutral:
- The existing provisions that allow parts of a work to be copied for display to students will be amended so they are no longer linked to specific technologies, such as flip charts and overhead projectors.
- The existing provisions that allow certain copyright material, such as a play, to be performed in the classroom will now be extended to allow teachers and students to watch legitimately acquired films and other audiovisual works.
- A school will no longer be required to pay copyright royalties to record a broadcast of a current affairs program, with the exception of documentaries, for educational purposes.
Libraries, archives and museums
Librarians will be allowed to digitize print material and then send a copy electronically to a library client through an interlibrary loan. The requesting client could either view the material on a computer or print one copy.
Libraries will be permitted to make copies of copyrighted material in an alternative format if there is a concern that the original is in a format that is in danger of becoming obsolete.
Intermediaries and broadcasters
Supporting the sharing of ideas online
The bill will clarify that Internet service providers (ISPs) and search engines are exempt from liability when they act strictly as intermediaries in communication, caching and hosting activities. The proposed legislation will ensure that those who enable infringement will not benefit from the liability limitations afforded to ISPs and search engines.
Because ISPs are often the only parties that can identify and warn subscribers when they are being accused of infringing copyright, the new provisions will compel all ISPs to participate in the "notice and notice" regime. In other words, when an ISP receives notice from a copyright owner that one of its subscribers is allegedly hosting or sharing infringing material, the ISP will be required to forward the notice to the subscriber and to keep a record of such relevant information as the identity of the alleged infringer. ISPs that fail to retain such records or to forward notices would be liable for civil damages.
Bringing broadcasting rules up-to-date
Radio broadcasters will no longer be required to compensate copyright owners for making temporary reproductions of sound recordings required for digital operations. Small cable systems will see a harmonization of their treatment with that of larger players under the bill.
Finally, the bill also includes a requirement for a review of the Copyright Act by Parliament every five years to ensure it remains responsive to a changing environment.
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