INTRODUCTION
2012 was a very important year for Canadian copyright law. By a wide margin, the two most significant developments of the year were the passing and coming-into-force of the Copyright Modernization Act, and the release of the Supreme Court of Canada's decisions in five copyright appeals, known as the "copyright pentalogy."
Copyright Modernization Act
On June 29, 2012, Bill C-11 (the Copyright Modernization Act) received royal assent, ending years of tumultuous debate in Canada as to how our copyright laws should be updated to deal with advancing technologies and international treaty obligations.
Most of the amendments were proclaimed into force on Nov. 7, 2012.
Key areas of reform include:
Anti-circumvention Provisions
The circumvention of technological protection measures used by rights holders to secure and control their digital content is now prohibited, whether by dealing in circumvention technologies themselves or by providing circumvention services to others.
Internet Services
It is now an infringement for anyone to provide a service over the Internet that they know or should know is designed to enable acts of copyright infringement. A number of factors are outlined to determine whether there is actual or constructive knowledge of such design.
Fair Dealing
The permitted fair dealing purposes have been expanded beyond research, private study, criticism, review and news reporting to now include education, parody and satire. Dealings with works for these new purposes must still be "fair" in all the circumstances.
Educational institutions have also been provided with specific new rights and exemptions relating to their use of digital technologies for educational or training purposes.
Non-commercial Use Exceptions
The right to reproduce works for private purposes has been expanded, including for time-shifting and back-up purposes, all subject to certain limitations.
Individuals are also now permitted to incorporate works into their user-generated content for non-commercial purposes (again, subject to certain limitations). This is sometimes referred to as the "YouTube" exception to infringement.
Notice and Notice Provisions
Internet service providers (ISPs) and Internet search engines will have limited liability for copyright infringements committed by their subscribers when they comply with a prescribed "notice and notice" regime. These provisions have yet to be proclaimed into force as regulations associated with the new regime are being finalized.
THE SUPREME COURT OF CANADA'S COPYRIGHT PENTALOGY
In December 2011, the Supreme Court of Canada heard appeals in five cases originating before the Copyright Board. It released its decisions in all five appeals on July 12, 2012.
(1) Rogers Communications Inc. v. SOCAN (2012 SCC 35)
Delivery of musical works via the internet constitutes a communication of those works "to the public," notwithstanding that streaming services are point-to-point transmissions between providers and consumers. Content intentionally made available to anyone who wants to access it is communicated "to the public," even if users access the work at different times and places.
(2) Entertainment Software Association v. SOCAN (2012 SCC 34)
Providing permanent copies of works to consumers through online downloading services is not a "communication" of the work by telecommunication. The word "communicate" in this context connotes an act akin to a public performance or broadcast. In contrast, a download transmits a permanent copy of a work to a consumer akin to the physical delivery of a physical product.
(3) SOCAN v. Bell Canada (2012 SCC 36)
The Court unanimously confirmed that providing short previews of musical works to consumers to aid their purchasing decisions constitutes fair dealing for the purpose of "research," absent evidence that such previews negatively impact music sales. The Court confirmed that the term "research" should be given a generous interpretation in the context of the defence of fair dealing.
(4) Alberta (Education) v. Access Copyright (2012 SCC 37)
Photocopies made by teachers, on their own initiative, to distribute to students as part of class instruction, can qualify as fair dealing for research or "private study" under the Copyright Act. Instructing teachers share a "symbiotic purpose" with the student/user who is engaged in research or private study.
(5) Re: Sound v. MPTAC (2012 SCC 38)
A sound recording that is part of a soundtrack cannot be the subject of a tariff under Section 19 of the Copyright Act when the recording accompanies a cinematographic work.
It will be interesting to observe, in 2013 and beyond, whether and how the Supreme Court of Canada's reasoning in these five appeals will be applied in future cases in light of the comprehensive amendments to the Copyright Act more recently proclaimed into law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
