Digital Copyright Reform in Canada

Bill C-61 - Overview

Below is a summary of Bill C-61's  proposed amendments with respect to digital copyright issues, including:

• New rights or protections for copyright holders
• Private use exceptions for consumers
• New exceptions for research and educational institutions
• Maximum statutory damages
  
• Internet service provider (ISP) Liability

Additional information for each of these is available on the government's "Copyright Reform Process" FAQ section. A useful summary of Bill C-61 is also available on the Canadian Internet Policy and Public Interest Clinic website.  Links to the appropriate page of the Bill C-61 have been included below where appropriate, though in some cases, you may have to scroll down to find the appropriate clause.

New Rights or Protections for Copyright Holders

The bill creates a number of new rights or protections aimed at addressing gaps in current legislation with regard to the digital environment, in addition to providing expanded rights for performers, producers of sound recordings, and photographers. The issues primarily related to digital copyright follow.

The "Making Available" Right
The Making Available right would give performers (see Clause 7), and producers of sound recordings (see Clause 9) the right to determine whether, and how, their works are shared online. This would make it clearly illegal for an individual to post copyrighted material online (whether on a website, a peer-to-peer network, or a social networking site) without the owner's consent. This right would help to clarify the confusion surrounding the legality of peer-to-peer filesharing and music downloading in Canada.
Though the act does not clarify a "making available" right for authors of works, the existing Copyright Act does grant authors an exclusive right to communicate a work to the public by telecommunication (see s. 3(1)(f)), which some have argued is sufficient to qualify as a making available right for authors.

Anti-circumvention provisions
These amendments make it illegal to circumvent or bypass technological measures intended to control access to protected materials (see Clause 31, s. 41.1). The provision, manufacture, marketing, or importation of circumvention tools or services would also be made illegal. However, certain activities are exempt from these anti-circumvention provisions. Any activities relating to law enforcement or the protection of national security would be exempt. Reverse engineering, security testing, and encryption research -- activities that "facilitation innovation and research in the high-tech field," would also be exempt from liability. For individuals, exemptions are made for the purposes of making computer programs interoperable, for persons with perceptual disabilities, and for protecting one's personal information. Similarly, Rights Management Information (RMI) would be protected by provisions making it illegal to remove or alter RMI (see Clause 31, s. 41.21).

The Act provides for the Governor in Council to make regulations that create additional exceptions to the anti-circumvention provisions (see Clause 31, s. 41.2). Factors to be considered include the effect on the use a person may make of the work, whether the work is commercially available, the effect on the market for the work, and whether the ability to circumvent a technological measure would adversely affect fair dealing purposes.

The Act is amended to make it a criminal offence to knowingly circumvent technological measures for commercial purposes (see Clause 32). Penalties range from six months imprisonment and/or a fine of up to $25,000 (on summary conviction) to five years imprisonment and/or a fine of up to $1,000,000 (on conviction on indictment).

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Private use exceptions for consumers

The bill creates new exceptions for users that essentially legalize what many Canadians already do with their media and with digital technologies for private, non-commercial use. Though these are sometimes being referred to as "new rights" or "user rights," they are better understood as new exceptions -- that is, they allow certain activities that would otherwise impose liability under the Copyright Act. The new exceptions include a number of conditions that must be met before they apply - a summary of each is presented below. Notably, in each of the cases below, the "exceptions" are void if a technological protection measure is circumvented in order to make the reproduction.

"Format shifting" and "Private Use of Music" provisions
These amendments would enable individuals to a) make a single copy of legally acquired books, newspapers, periodicals, videocassettes, and photographs to another medium or device (see Clause 17, s. 29.21), and to b) copy legally acquired sound recordings onto separate devices such as MP3 players or computer hard drives (see Clause 17, s. 29.22). For both types of exceptions, the reproduction must originate from a legally acquired (not borrowed or rented), non-infringing work, and cannot be made onto mediums or devices not owned by you (meaning you cannot transfer it to those of your friends or family). The individual can only reproduce the work once per device, cannot give the copy away, and must only use it for private purposes. If the individual sells or gives away the original source of the copy, all copies from that source must be destroyed. Finally, private contracts prevail in the case of inconsistency in the case of subject matter downloaded from the Internet.

Notably, the format shifting exception does not include DVDs, and the private copying provision does not apply to reproductions made onto media covered under the private copying levy in section 80 of the Copyright Act (CDs, cassettes, etc.).

"Time shifting" provisions
These amendments would make it legal for an individual to make a single copy of a television or radio program broadcast, or a simulcast webstream (i.e., Internet transmissions that are simultaneously being broadcast over television or radio), in order to watch or listen to it at a later time (see Clause 17, s. 29.23). This exception applies only where the individual received the program legally, makes only one copy and keeps the copy "no longer than necessary," uses it only for private purposes and does not give the copy away. Again, programs received via private contract (such as video-on-demand services) will be governed by those contracts in the case of inconsistency. The exception does not apply to recordings made using a network personal video recorder (PVR) that stores the recordings in a networked facility for later access.

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Exceptions for Research and Educational Institutions

While the Copyright Act already contains provisions that grant teachers the limited ability to use copyrighted works for educational purposes, and libraries the ability to make copies for patrons for research or private study, these provisions are limited to the physical classroom and hard copies. Bill C-61 includes new exceptions to address digital issues raised by education and research.

Technology-Enhanced Learning
The amendments allow schools to transmit lecture materials via telecommunication (i.e., over the Internet) for distance learning, from which students are permitted to print one copy. The educational institution must destroy any copies of the lesson within 30 days of the students receiving their grades, and take reasonable measures to restrict access to students, and to prevent students from copying or distributing the lesson (see Clause 18, s. 30.01).

Digital reproductions
Educational institutions can make digital copies of works for which they already have a reprographic reproduction licence, for educational or training purposes, and transmit those works over the Internet to students (see Clause 18, s. 30.02). Royalties for the digital reproductions must still be paid out to the collective society, and measures must be taken to prevent access by non-authorized persons and further distribution.

Use of Internet Materials
Bill C-61 would allow schools to use publicly available material on the Internet for educational or training purposes (see Clause 18, s. 30.04). The material must list the source and the name of author, performer, producer or broadcaster, and the exception does not apply if the work is protected by a technological measure, if a "clearly visible notice" prohibits the use of the material for educational purposes, or if the educational institution knows or ought to know that the work was not made available online with the copyright holder's consent.

Access to Library Materials
The amendments allow libraries, archives or museums to make digital copies of printed materials for its patrons and transmit them electronically to patrons via interlibrary loans (see Clause 20.1). The providing institution must take measures to prevent the patron from making any copies aside from one permitted printed copy, communicating a digital copy to another person, or using the digital copy in excess of five business days.

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Maximum statutory damages

Currently, an individual can be liable for statutory damages between $500 and $20,000 per work infringed. These amendments would limit an individual's liability if the infringement is for private, non-commercial purposes (see Clause 30(1)). The provisions would fix the maximum amount of statutory damages to $500 total (regardless of the number of works infringed). If technological protection measures were circumvented in order to infringe, the individual would face up to a maximum of $20,000 per infringement, and the individual is still liable for other types of damages or remedies. In addition, normal statutory damages would still apply to infringements not deemed for private purposes, including posting copyrighted materials on peer-to-peer networks, social networking sites, or selling or giving away a device containing copies made for private purposes.

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ISP Liability

The bill clarifies that internet service providers are not liable for infringing activities of subscribers in their capacity as providers of Internet access, as hosts for Internet content, or for caching material in order to ensure network efficiency (see Clause 21). Under a "notice and notice" regime, ISPs would have still have a legal obligation to notify subscribers of any allegations of infringement, and keep identifying records of that subscriber for six months in case of litigation.

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