Digital Copyright Reform in Canada
Copyright Backgrounder
This section is intended as a general overview to frequently asked questions about Canadian copyright law.
A brief summary of some of the unique features of US copyright law can be found here.
- What is copyright?
- What subject matter is protected by copyright?
- What are the requirements for copyright protection?
- What are the limits on copyright?
- What rights do copyright owners have?
- What constitutes copyright infringement?
- What are the remedies for infringement?
- What are the exceptions to infringement?
- What is "DRM," "TPM," "RMI" and "anti-circumvention"?
- Is downloading or uploading music on peer-to-peer networks illegal?
What is copyright?
Copyright law is a creature of federal statute and is governed in Canada by the Copyright Act. It is one of four general categories of intellectual property law (the others being trademarks, patents, and trade secrets). Generally, it is a legislative system designed to promote a balance between granting just reward to creators for their works, and encouraging innovation and creativity through granting public access to those works. Because of this purported "balance," rights of copyright holders are limited: they have a monopoly on their works for a certain period of time, but then must allow their works to enter into the public domain. There are also certain enumerated exceptions to these exclusive rights aimed at achieving certain policy objectives (including those for educational or archival institutions, libraries, and "fair dealing" purposes such as news, research, criticism or review). For more information on the balance in copyright, see the Copyright in the Public Interest section.
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What subject matter is protected by copyright?
Copyright generally protects expressive works or subject matter that are both original and fixated in some material form. More specifically, the subject matter covered by copyright law includes:
- Artistic works (paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works)
- Literary works (including computer programs, tables, and compilations of literary works)
- Musical works
- Dramatic works (including choreographic and cinematographic works, and compilations thereof)
- Performances
- Sound recordings
- Communication signals
Compilations
While copyright does not extend to facts, ideas, or other non-copyrightable elements in and of themselves, it does protect original compilations of these elements. As long as there is some minimal element of "skill and judgment" in the selection and arrangement of non-copyrightable element, then copyright will attach. Consider, for example, a directory of telephone numbers. The numbers and corresponding names themselves are not copyrightable as facts. Neither is the compilation as a whole, because one cannot say that the arrangement of phone numbers in alphabetical order does not require the exercise of skill and judgment. However, an arrangement and selection of baseball statistics in a particular order is copyrightable, since there are any number of ways to display them to readers and some creative expression went into their presentation. Notably, the facts within a compilation are not protected - only the selection and arrangement of them as a whole.
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What are the requirements for copyright protection?
To qualify for copyright protection, a work must be an original expression that is fixed in some tangible medium.
Originality
Original means that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. The requisite level or creativity is fairly low - the last word from the Supreme Court in CCH v. Law Society of Upper Canada is that the standard for originality is the "exercise of skill and judgment". Originality does not signify novelty. A work may be original even if it is very similar (or even identical to) other works as long as the works are not the result of copying. For example, two musicians compose identical songs, but independently of each other. Neither work is novel, yet both are original and thus copyrightable. If the conditions above are met, copyright will attach to a particular work regardless of the artistic merits, public appeal or utility of the work.
Though the threshold for creativity is low, copyright will generally not apply unless there is some expressive aspect present beyond the mere function of the work. For example, recipes will generally not be copyrightable because they are merely instructions in a process, just a list of ingredients and what to do with them. The recipes contain no expressive elaboration upon the functional components (i.e. ingredients and how to combine them). However, recipes might be copyrightable if an attempt is made to introduce creative and expressive narrative. The same logic applies to physical objects as well. Thus an object with a purely functional purpose, such as a bike rack, will not attract copyright unless there is some expressive element in the design that can be identified as reflecting the designer’s artistic judgment exercised independently of functional influences.
Expression
One of the most significant limitations on the copyrightability of works is known as the ‘idea-expression’ dichotomy. Copyright does not protect the ideas or concepts that are embodied in a work - only the expressions of those ideas. The rationale for this dichotomy aims to prevent any given individual from having a monopoly on ideas or facts. If two people express the same idea or fact in different ways, then the works are both independently copyrightable.
This distinction is often difficult to see. For instance, one could not copyright the news, only the specific combination of words used by a journalist to describe the news. However, the line between where an idea ends and where an expression of that idea begins is a difficult one to draw and is often very case-specific.
For example, in the US case of Nichols v. Universal Pictures Corporation, 45 F.2d 119 (2nd Cir. 1930), an author writes a comedic play about an Irish family and a Jewish family in which the son and daughter from each family fall in love against their parents wishes. It would be absurd to limit copyright to the exact words of the play and allow others to make trivial changes to evade infringement. However, it would be equally absurd to allow copyright to extend to any plays about Irish and Jewish families with love between cultures. At some point, the idea ends and the expression begins, and there is no explicit formula that can determine when the expression copied is enough to constitute infringement.
Fixation
Copyright law requires that the work be fixed in some tangible medium. This means that there must be some physical manifestation of the creation, whether it be on paper, canvas, or even in digital format on a computer. Ephemeral events, such as speeches and conversations that are not recorded, cannot be protected. This limitation on copyright is practical – if copyright attached to all communication, then the law might face a large number of infringement claims infringement that would be virtually impossible to verify.
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What are the limits on copyright?
Though copyright is often thought of in terms of private property, a copyright holder’s interest is limited. In Canada, the duration of copyright is generally the life of the author plus fifty years. Once the term of copyright has expired, the work enters into the public domain and the author’s rights are terminated. This limitation on copyright aims to promote a balance, encouraging the creation of new works by maintaining a growing base of expression from which authors are able to draw from freely, and without fear of infringement. For a more detailed overview of the rationale behind copyright and the notion of balancing the public interest, see the Copyright and the Public Interest section.
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What rights do copyright owners have?
The owner of a work protected by copyright has a “bundle” of rights pertaining to that work. Most of us think of copyright as only pertaining to the “copy” – the right to produce or reproduce the work, but different types of works will include different rights (for example, rights to convert plays into novels, novels into films, adapt or translate works, perform works in public, or broadcast a work on television or radio).
Several exclusive rights typically attach to the holder of a copyright:
- The right to produce copies or reproductions of the work and to sell those copies (including, typically, electronic copies)
- The right to import or export the work
- The right to create derivative works (works that adapt the original work - the right to adapt a work means to transform the way in which the work is expressed. Examples include developing a stage play or film script from a novel, translating a short story, and making a new arrangement of a musical work)
- The right to perform or display the work publicly
- The right to sell or assign these rights to others
- The right to transmit or display by radio or video
The phrase “exclusive right” means that only the copyright holder is free to exercise those rights, and others are prohibited from using the work without his or her permission. Consequently, copyright is sometimes called a “negative right”, as it serves to prohibit certain people (e.g., readers, viewers, or listeners, publishers) from doing something they would otherwise be able to do, rather than permitting people (e.g., authors) to do something they would otherwise be unable to do. This means that even though a person may have lawfully purchased a work, their rights to use the work are subject to the rights of the creator given above. For example, if you purchase a song on iTunes, the reproduction of the song for others or the public performance of the song still constitutes infringement unless this privilege has expressly granted by the creator.
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What constitutes copyright infringement?
The rights in the copyright "bundle" effectively confer a monopoly over a work – the owner has the sole discretion to exercise and authorize such rights, but also the ability to prevent others from doing so without consent. This means that if you do anything that is the copyright owner’s sole right to do without permission, you are infringing the owner’s copyright under s. 27(1) of the Copyright Act. This is what is known as “primary” infringement.”
The Copyright Act also prohibits “secondary infringement” (s. 27(2)), which essentially constitutes the distribution, exhibition, sale or rental of works that one knows (or ought to know) are infringing copies. Secondary infringement would typically be used to deal with the commercial distribution of illegal copies (piracy), but it has also been invoked more recently regarding the uploading of unauthorized music files onto peer-to-peer filesharing networks or posting copyrighted material onto sites like Facebook or YouTube.
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What are the remedies for infringement?
Both primary and secondary infringement create civil liability, meaning the owner of the copyright can sue the alleged infringer in civil court. Section 35 of the Copyright Act entitles the owner to a variety of remedies, including an injunction (a court order to stop someone from infringing), payment of damages suffered, seizure of the infringing copies, additional payment in lieu of lost profits. In lieu of lost profits or damages, the copyright holder may ask the court to award statutory damages between $500 and $20,000 per work infringed. Under certain circumstances, an individual who infringes copyright may be face criminal liability under s. 42(1), usually where the offender is selling or distributing unauthorized works for commercial purposes. The criminal penalties consist of fines between $25,000 and $1 million, or imprisonment terms between 6 months and 5 years.
Bill C-61 introduces limits on statutory damages for any infringement made for private, non-commercial purposes and caps the liability of a given individual to $500 total, regardless of the number of infringements made. However, if any technological protection measures were circumvented in the course of the infringement, then that individual faces the regular statutory damages (between $500 and $20,000) on a per-infringement basis. Additionally, this statutory limit likely does not apply to infringements of the "making available" right, so individuals sued for uploading material may still be liable for the full amount of statutory damages.
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What are the exceptions to infringement?
Fair Dealing
The Copyright Act includes some exceptions that allow individuals to make certain uses of copyrighted works without infringing copyright. The one frequently talked about is the s. 29 “fair dealing” defence, which claims that using works for the purposes of research or private study, as well as criticism, review, and news reporting if the source is cited, are not infringements of copyright. This list is exhaustive: that is, fair dealing will only apply if the user can prove that their activities fell into one of these predefined categories. The fair dealing exception causes some confusion with its US counterpart, Fair Use, which is drafted in a more open-ended fashion and has thus been applied more liberally than the Canadian fair dealing defence. For example, the courts in the United States have expanded the doctrine to include parody as a legitimate fair use (see Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)), whereas Canada has not accepted satire or parody under the fair dealing exception (see Michelin-Cie v. CAW Canada [1997] 2 F.C. 306).
Fair dealing has recently come to be characterized less as an “exception” or “defense” to infringement, and more as a "user's right". In 2004, the Supreme Court of Canada ruled that fair dealing was in fact a user's right which should not be interpreted restrictively in order to maintain the balance between owner rights and the public interest in fair dealings with copyrighted works. See the section on Copyright in the Public Interest for more detail on this decision and the notion of the public interest in copyright jurisprudence.
Other exceptions and the Private Copying Levy
Other “exceptions” enumerated in the Copyright Act aim to address certain policy concerns and tend to limit owner rights where it would be in the public interest to do so. Among these are exceptions for libraries, museums, archives and educational institutions, allowances for backing up computer programs and translating or converting works for people with perceptual disabilities, and copying sound recordings for personal or private use, also known as the “private copying levy.”
The Private Copying Levy is laid out in s. 80 of the Copyright Act. Effectively, it allows individuals to make a copy of a sound recording for private use without infringing copyright. The exception has limits – copies for any commercial purpose or public performance are not included in the private copying scheme. This exception is paired with a statutory “right of remuneration,” meaning that copyright owners are compensated through a levy that is applied to manufacturers, distributors, and importers blank audio recording media (such as CDs, tapes, or mini-discs). The levy is set by the Copyright Board and collected by the Canadian Private Copying Collective (CPCC), who then distribute the levy to eligible performers, artists, or producers who own the copyright. Developments in audio recording and listening technology have prompted the CPCC to expand the types of media the levy applies to. Most recently, the Copyright Board approved a levy on “digital audio recorders” such as iPods, but the decision was struck down by the Federal Court (see CPCC v. Canadian Storage Media Alliance [2005] 2 F.C.R. 654). Currently, the levy does not apply to mp3 players.
Should Bill C-61 pass, however, new provisions enabling "device shifting" would make it legal for individuals to make copies for private use onto any number of devices, including mp3 players, so long as the original copy was lawfully obtained. It is not clear whether a corresponding levy on such devices will result should these new "private use" rights be implemented, or whether the private use exceptions that overlap with the activities allowed under the private copying levy will be reconciled, seeing as the former are non-compensable, but the latter are accompanied by a right of remuneration and are therefore compensable. Industry Minister Jim Prentice has promised public consultations on the structure and existence of the private copying levy in the fall of 2008.
These new "user exceptions" introduced by Bill C-61 legalize what many Canadians have long been doing with their own media (time shifting, device or format shifting, etc.) Additional exceptions for libraries and educational institutions also help clarify that certain reproductions or transmissions of copyrighted material under certain conditions will not be seen as infringements. Notably, however, these new exceptions contain their own set of exceptions - many of which do not reflect reasonable or current practices of Canadians. For example, liability for infringement will still exist should an individual circumvent any technological measures in order to make such copies. Educators can make copies for teaching purposes, but are asked to destroy the copies once the course is completed. Copies of sound recordings can be made onto other devices, but those copies must be destroyed should the original source be given away or sold. Finally, allowances for a fair dealing defence are not written in to these exceptions. See the section on Bill C-61 for a more thorough review and links to these critiques.
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What is “DRM”, "TPM," "RMI" and “anti-circumvention”?
DRM, or “Digital Rights Management,” refers to technologies used by copyright owners to limit access, copying, or conversion of digital works, media, or devices, and to manage rights information. These technologies have emerged in response to the advent of digital technologies enabling the mass duplication and distribution of media, and are employed primarily by industries that rely heavily on copyright protection (particularly film, television, or music).
TPMs (technological protection measures) and RMI (rights management information) are both forms of DRM. TPMs are essentially digital or electronic "locks" that allow copyright holders to control access or use of their works in a digital environment. Some examples of TPM include encryption technologies that limit access to content to certain devices, software that will block DRM-restricted content, or limits on how many times you can access or use a file (often used with music files). RMI is generally any information embedded in a digital work ("metadata") that identifies the owner or author of a work and defines the terms of permitted access and use of that material, and is often used in conjunction with TPMs. While TPMs are directed more at blocking or controlling access, RMIs are more concerned with maintaining the integrity of the rights information associated with a digital work.
"Anti-circumvention laws" thus generally refer to legal mechanisms that protect DRM used by copyright holders to protect their rights, by creating penalties for those who circumvent digital locks or manipulate or alter rights management information. The distinction between these various terms is somewhat contested. See here for more info on DRM from the Canadian Internet Policy and Public Interest Clinic’s website, and here for a more detailed description from the Canadian Association for Open Source (CLUE) regarding the distinctions between TPM, RMI and DRM from both a legal and technical perspective.
Advocates of DRM believe that such tools are needed to adequately protect and manage copyright holders’ rights, to prevent unauthorized copying, and to protect from economic losses stemming from such copying. Many countries who have amended copyright legislation to comply with the WIPO Treaties have implemented anti-circumvention provisions, which in some cases criminalize the use, manufacture, and sale of technological devices aimed at circumventing DRM.
However, many have criticized DRM because it prevents individuals in some cases from exercising “user rights” or from making copies that constitute legal exceptions under the Copyright Act. Opponents of DRM express concern that, should Canada adopt such legislation, user rights might not be accounted for adequately, and otherwise legal activities may be criminalized (for example, cracking a copy protected CD to make a copy for personal use under the private copying levy, or for a fair dealing purpose). Both of Canada's most recent attempts at copyright reform (Bill C-60 and the current Bill C-61) include anti-circumvention provisions. See the Bill C-61 overview for more information on this provision.
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Is downloading or uploading music on peer-to-peer networks illegal?
Though record companies have successfully sued individuals in the United States for sharing unauthorized music files online, the legality of sharing music on peer-to-peer networks is less clear in Canada. The most recent Canadian case on the topic (BMG v. John Doe) is not particularly instructive, but does give some clues as to how the Copyright Act might be interpreted should a case make it to court.
In this case, the Federal Court refused to order ISPs to reveal the identities of the customers that the music companies alleged were participating in file-sharing activities in infringement of their copyright. The Motions Judge declared that “downloading a song for personal use does not amount to infringement” and since there was no evidence that the alleged infringers had done anything more than place the personal copies of songs on a shared directory over a P2P network, this was not sufficient to constitute infringement. He relied on the decision from CCH to assert that placing a file on a shared drive is no different than placing a photocopier in a library, since in both cases there was no “positive act” that could constitute authorization or distribution. He also rejected the secondary infringement claim, noting that actual knowledge of infringement would be required. From this judgment, it appears as if downloading a musical work for personal use is not an infringement, and there must be some “positive act” beyond simply making the file available in a shared directory on a P2P network in order to constitute an authorization or distribution that would constitute an infringement pursuant to the Copyright Act.
While the Federal Court of Appeal upheld the end result, Sexton J.A. made some comments about the nature of infringement and disagreed with the Motions Judge’s reasoning above. First, the Motions Judge failed to consider that the personal use defence under s. 80(1) would not be available where copies are made for the purposes of selling, distributing, or communicating to the public by telecommunication (see s. 80(2)), indicating that placing files on a shared directory might be considered a communication to the public or a distribution that would limit the validity of this defence. He also took issue with the Motions Judge’s reliance on CCH and the failure to consider whether placing music files on a shared directory could be considered an authorization “because it invited and permitted other persons with Internet access to have the musical works communicated to them and be copied by them.” Furthermore, Sexton J.A. noted there was nothing in the statute nor any judicial authority supporting the requirement of a “positive act” to constitute authorization. Finally, on the issue of secondary infringement, Sexton J.A. pointed out that s. 27(2) of the Copyright Act does not require proof of actual knowledge, but only proof that the infringer “should have known” that the file might be an infringement.
Sexton J.A. raised each of these issues, however, in order to illustrate why the assessment as to whether infringement had occurred was a premature one – leading us to ask whether all of the above was purely obiter, and ultimately leaving us with more questions than answers regarding the legality of file-sharing activities. It still seems clear that a single download for personal use is not an infringement under s.80(1) of the Copyright Act, but it is questionable whether making that same file available online would constitute an authorization or distribution to the public and would therefore remove the private use defence under s. 80(2).
It is important to point out that downloading and uploading are not usually mutually exclusive acts: participation in many p2p networks encourages (and in some cases rewards) sharing with the rest of the community, so it seems fair to say that most downloading is typically accompanied by uploading, and that the “filesharing” activities in question usually involve both acts. Furthermore, most users probably know (or at least ought to know) that the copies that they are downloading and sharing may well be infringing copies – does this also leave them open to liability under secondary infringement?
Either way, Sexton J.A. concluded by refusing to make a definitive finding on the infringement issue, pointing out that should the case proceed, “it should be done on the basis that no findings to date on the issue of infringement have been made.” This caveat, taken with the decision to allow future motions of this nature to succeed where there is a “bona fide claim” of copyright infringement, indicates that the Federal Court of Appeal left it open for future lawsuits to proceed based on file-sharing activities. Until the issue is revisited by the courts, Canadians should be wary of the materials they place in directories on shared networks.
This ambiguity might be clarified if Bill C-61 is passed. Bill C-61 provides for a new "making available" right for producers and performers to control who can access their works via telecommunication. As a result, the uploading of unauthorized copies or works in a networked environment will become an infringement under Bill C-61. Downloading, on the other hand, might still present some confusion, though from the judgment above, such activity may well be captured under a secondary infringement argument.
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