Thursday, November 8, 2012

A Dawn Of a New Copyright Reality in Canada - C-11 Implemented

Thursday, November 08, 2012
Yesterday, November 7, 2012, saw the dawn of a new copyright reality in Canada. An overhaul of Canada’s copyright regime have been a long time coming with bills C-32, C-27, C-61, C-60 having died on their respective order papers due to elections being called or the proroguement of parliament. Bill C-11, a.k.a. An Act to amend the Copyright Act or the Copyright Modernization Act functions to implement of the World Intellectual Property Organization Copyright Treaty (WCT) to which Canada became a signatory on December 22, 1997. As I said, it has been a long time coming. 

The new copyright regime attempts to strike a balance between content producer’s rights and the ability of content user’s to deal with works in a fair manner. While the definition of “fair dealing” now explicitly includes the purposes of education, parody, and satire, it was not expanded further, as some advocates had hoped, to make the enumerated purposes illustrative by using “such as” language. 

Furthermore, exceptions to infringement were added to address the realities of digital society. These include:

  • User-generated content for non-commercial purposes YouTubeTM videos which include music or video clips which are subject to copyright)
  • Time shifting, format shifting, and the making of backup copies (PVRing your favourite program, copying it to your iPadTM and saving a copy in the cloud) 

In the context of educational institutions, new provisions have given certainty to certain aspects that are critical for these institutions to move forward in the digital era. The new provisions endorse but prescribe limits on distance learning, the use of electronic resources and interlibrary loans. 

Perhaps the most contentious issue to come into force is the provision regarding Technical Protection Measures (“TPMs” or “digital locks”); Canada’s new regime has been labeled by critics to be the most restrictive in the world. Under the new provisions, the circumvention of TPMs for virtually any reason is a separate act of infringement and vitiates the fair character of any dealing that may have existed. This will also extend to offering circumvention services and selling devices whose principle purpose is circumvention. The exceptions to these TPM provisions include circumvention for the purposes of law enforcement, interoperability, encryption research, security, privacy, unlocking cellphones, and enabling technology for persons with perceptual disabilities. 

Life within this new copyright reality starts now…