On September 29, 2011, the federal government introduced the Copyright Modernization Act (Bill C-11). The legislation received Royal Assent on June 29, 2012 and the majority of the bill came in to force on Nov. 7, 2012. The most significant amendment was the modernization of the educational exceptions to permit the use of copyrighted materials in both the digital and the physical classroom. Other amendments include (a) protection for technological measures that companies use to secure content; (b) new exclusive rights including the right to make sound recordings available on the internet; (c) new "personal use" exceptions, including the movement of content across formats; and (d) a clarified role for Internet Service Providers ("ISPs") with respect to copyright infringement by limiting their liability and requiring them to forward notices of alleged copyright infringement to subscribers and to retain the records necessary to determine the subscribers' identity.
Bill C-11 broadens the scope of the fair dealing exception to specifically include education, in addition to research, private study, criticism and review. Fair dealing for the purposes of education does not currently require attribution of the source and author (compared with fair dealing for the purposes of criticism, review or news reporting, which does and remain unchanged).
Bill C-11 also significantly expands the educational exceptions as follows:
- an educational institution or a person acting under its authority for the purposes of education or training on its premises may reproduce a work, or do any other necessary act, in order to display it
- an educational institution or a person acting under its authority for the purposes of education or training on its premises may reproduce, communicate by telecommunication and perform for students, works that are available on the Internet, subject to various conditions
- communication of lessons by telecommunication and distance learning, and recording of such lessons is permitted, subject to various conditions
- libraries can make a copy of a work in its permanent collection in alternate format if the original format is obsolete
- electronic desktop delivery of library materials to its patrons (for interlibrary loan purposes) will be permitted under certain circumstances
Overall, there should be greater flexibility for faculty to rely on the educational exceptions to reproduce and display works within the university environment.
1. Key Changes for Educational Institutions
(a) Fair Dealing Exception
The fair dealing exception will include three new purposes: education, parody or satire. This expands the existing exceptions: research and private study, criticism, review and news reporting. Copying for the purposes of education under fair dealing will still be subject to the Fair Dealing Guidelines.
Copies of works may now be made for backup purposes, in cases where the legally obtained source copy is lost, damaged or otherwise rendered unusable. This exception does not apply to works protected by “digital locks” (see discussion below), and the backup copy may not be given away.
(b) Expanded Educational Exceptions
(i) An educational institution or a person acting under its authority, for education or training purposes on its premises, can:
- reproduce a work, or do any other necessary act, in order to display it (unless the work is commercially available in the Canadian market within a reasonable time and for a reasonable price and may be located with reasonable effort, in a medium that is appropriate for education or training purposes);
- perform a film or other cinematographic work in the classroom, as long as such work is not an infringing copy and was legally obtained; and
- reproduce, communicate by telecommunication and perform for students, legitimately posted works that are available through the Internet, provided that the source and author are attributed, unless:
- the works are protected by “digital locks”;
- a clearly visible notice (and not merely the copyright symbol alone) prohibiting such act is posted on the website or on the work itself; or
- the educational institution knows or should have known that the works are available on the Internet in violation of the copyright owner’s rights.
(ii) Educational institutions using news and commentary under the educational exception will no longer have to pay royalties, destroy copies of news or commentary programs after one year, or keep records of the copies made of news or commentary programs.
(c) Lessons by Telecommunications
An educational institution or a person acting under its authority for the purposes of education or training may communicate lessons (including tests or exams) via telecommunication and distance learning to students enrolled in the course and record such lessons. The student can also make a copy of such telecommunicated lesson to be viewed or listened to at a later time, provided that:
- the student and the institution must destroy the recording or copy within 30 days after receipt by students of their final course evaluations;
- the institution must take measures (e.g. installing digital locks) to limit the audience to students only, and to protect the lesson itself
It is important to note that the recordings cannot be sold or distributed widely (beyond the audience of students enrolled in the class).
(d) Expanded Exceptions for Libraries, Archives and Museums
Libraries, archives and museums will be able to:
- make a copy of a work in its permanent collection in an alternative format if the original is in a format that is obsolete or the technology required to use the original is unavailable or is becoming unavailable.
- distribute materials digitally; provided that they take measures to ensure that the patron prints one copy only of the digital form, does not communicate the copy to another person and does not use the digital copy for more than 5 business days of first using it. There is a similar allowance for unpublished works deposited in archives.
(e) Reduced Statutory Damages for Non-Commercial Infringements
Statutory damages for copyright infringements with non-commercial purposes have been reduced from the current $500 to $20,000 per work infringed, to $100 to $5,000 for all infringements in a single proceeding for all works (not for each work infringed). The current range continues to apply to cases of infringement for commercial purposes only.
(f) Digital Locks
“Technological protection measure” (also known as “digital locks”) are defined under two categories:
- any effective technology, device or component that controls access to a work (“access control”), and
- any effective technology, device or component that restricts one from exercising the exclusive rights of a copyright owner or remuneration rights, i.e. that control the reproduction or copying of a work (“copying control”).
Bill C-11 prohibits the circumvention of any access control installed on a work, performer’s performance fixed in a sound recording or a sound recording, even if the work subject to the digital lock is legally acquired.
The digital lock prohibitions in the Act could potentially “trump” or prevail over various exceptions in the Copyright Act, e.g. the fair dealing or educational exceptions.
(g) Internet Service Provider Liability
Providers of Internet or network services are not liable for copyright infringement, to the extent that they are only acting as intermediaries with respect to communication, caching, hosting activities. This does not apply if:
- it is the provider (via the Internet or other digital network) of a service that a person knows or should have known is designed primarily to enable acts of copyright infringement, if actual infringement results (intended to target illegal peer to peer file – sharing or music sharing sites); or
- if a web host knows from a court decision that the stored material infringes copyright.
(h) Notice-and-Notice System
A “notice-and-notice” system is established to clarify the role of network or internet service providers (ISPs) and information location tools (search engines) in preventing copyright infringement, by requiring them to inform suspected copyright infringers of a copyright owner’s desire to enforce the owner’s rights.
- A copyright holder would send notification to the ISP or search engine in a prescribed format identifying an electronic location to which a claimed infringement relates.
- The ISP would forward this notification to the subscriber (person at the electronic location).
- The ISP or search engine must store the subscriber’s IP information for 6 months, or a year if a court action results from the infringement.
- The ISP may be liable to statutory damages of $5,000 to $10,000 if it fails to comply with these provisions.
2. Other Changes
(a) New Exclusive Rights
The following new exclusive rights have been added for the benefit of copyright owners:
- A copyright owner now has explicit “first distribution rights”, i.e. for a tangible work, the exclusive rights to sell or otherwise transfer ownership of the work, as long as that ownership has never previously been transferred in or outside Canada, with the authorization of the copyright owner. This extends to performers and makers of sound recordings, in the case of first sale or distribution of a tangible CD or DVD.
- performers and makers of sound recordings also have the exclusive right to control the online transmission of sound recordings, i.e. to make a sound recording available to the public over the Internet in a way that allows a member of the public to have access to such sound recording from a place and time individually chosen by the member of the public.
(b) New Personal Use/Fair Dealing Exceptions
(i) Non-commercial User-generated Content (also known as the ‘mash-up exception’)
Section 29.21 creates a new exception for content generated by non-commercial uses to allow a consumer the right to use, for non-commercial purposes, a published work to create a new work. This exception is subject to conditions (e.g. identification of the source and author, legality of the original work or the copy used, absence of a substantial adverse effect on the exploitation of the original work). For example, a consumer could splice scenes from videos and movie trailers to create a fan-made trailer or video.
(ii) Reproduction for Private Purpose (aka the “format-shifting exception”)
Section 29.22 allows a consumer the right to reproduce, for a private purpose, any work or protected subject matter if the source copy was legally obtained (but not onto an “audio-recording medium”). For example, a consumer could copy a song purchased from iTunes from his or her computer to his or her iPod.
This exception does not apply to the copy of a musical work made onto an “audio recording medium” as defined in section 79 of the Act or to works protected by digital locks. Section 79 defines “audio recording medium as a recording medium, regardless of its material form, onto which a sound recording may be reproduced and that is of a kind ordinarily used by individual consumers for that purpose, excluding any prescribed kind of recording medium.” Therefore, Bill C-11 does not allow reproductions for private use on CD-Rs and Mini-Discs.
(iii) Fixing Signals and Recording Programs for Later Listening or viewing (aka the “time-shifting exception”)
Section 29.23 allows an individual to make a fixation of a communication signal or reproduce a work, sound recording or performance being broadcast for the purpose of privately viewing the work at a later time, provided that the signal is received legally, only one recording is made, it is used for private purposes, and is not given away. For example, an individual would record a show on his or her PVR to watch at a later time. This exception does not apply to works or sound recordings accessed through an on-demand service, or to works protected by digital locks.
(c) New Computer Program Exceptions
There are some new exceptions to copyright infringement for developing interoperable computer programs, encryption research, security testing and technological processes. These are aimed at the software industry to allow software reproduction for compatibility issues, software testing, security flaws and other uses common in the industry.