Canada: Fourth Time Lucky? Government Introduces Copyright Reform Bill -- Again.

The Canadian Government is giving copyright reform another try, reintroducing what is essentially the same copyright bill that died last spring with the dissolution of Parliament.

But while the text may be the same, one thing has clearly changed: this time, the ruling Conservatives have a legislative majority, significantly increasing the likelihood that the new bill will actually become law, either in its current form or with amendments introduced at Committee.

Industry Minister Christian Paradis formally tabled Bill C-11, entitled An Act to Amend the Copyright Act, in the House of Commons on September 29, 2011, also holding a press conference to discuss the main features of the bill and the Government's plans for its passage. During that event, Heritage Minister James Moore stated that Bill C-11 is identical to Bill C-32, the version introduced in June 2010, which died on the order paper when the parliamentary session ended last spring.

That said, the bill apparently won't stay "identical" for long. The Minster has already indicated that "technical amendments" to the just-introduced Bill are already being contemplated. These will likely be introduced by Government members of the House Committee tasked with studying the new bill.

The new bill represents the fourth time since 2005 that the Government has introduced a bill to implement revisions to the Copyright Act. Potential changes to the Copyright Act have been the focus of intensive discussion and debate between stakeholders for a number of years—although there seems to be little dispute that change is necessary to update the Act, which was last amended before many of the digital technologies that are commonplace today were introduced.

The Government seems intent on swift passage of the bill. Earlier in September, Heritage Minister James Moore indicated that the government wished to resume work on the copyright bill, and noted that groups who had already appeared before the legislative committee studying Bill C-32 would not be invited to re-appear. The Minister noted the huge investment of time that had already gone into Bill C-32 and the urgency to reform the law to keep up with current technology. During the C-11 press conference, the Heritage Minister went so far as to say that he hoped the bill could clear the House of Commons by Christmas, aided by a special committee assembled to focus only on the copyright bill.

Accordingly, while observers might have reasonably speculated that further work on Bill C-11 could also be influenced by the potential outcome of a cluster of copyright cases that were recently granted leave to appeal to the Supreme Court of Canada (one of which will consider the scope of the "fair dealing" exception, a provision that would itself be amended by the new bill), the majority Government's apparent timeline, even in the face of these pending appeals, would appear to make this unlikely, since the cases would not be heard until December 2011, with the judgements unlikely to be rendered for many months thereafter.

Highlights of Bill C-11 include the following:

• Protection of Digital Rights Management (DRM). Also known as "technical protection measures" or, more commonly, as "digital locks", DRM is built into digital music, DVDs, and other media and technology products to ensure that they are not subject to unauthorized copying. The proposed amendments include anti-circumvention provisions that prohibit the removal or tampering with DRM. Bill C-11 also proposes protection for Rights Management Information (RMI), which is used to identify the rights holders of an original work or to outline restrictions on use of the copyrighted work. The bill would prevent the removal of, or tampering with, RMI.
• "Reproduction for private purposes" provisions would allow individual Canadians to make copies of music and other copyrighted material if the original copy is not an infringing copy, the individual legally obtained the original copy other than by borrowing it or renting it, and the individual owns or is authorized to use the medium or device onto which the copy is reproduced (such as a computer, iPod or MP3 player) as long as a digital lock is not picked in making the copy. The reproduction may only be used for private purposes and cannot be given away, sold or rented without first destroying all reproductions of the original copy. In addition, these provisions would not apply if the reproduction is made onto a medium that is governed by the private copying provisions currently found at Part VIII of the Copyright Act, such as CD-Rs.
• Education exemptions would make it legal for students at schools and higher learning institutions to download copyrighted information for the purpose of study and research. Schools will also be allowed to transmit materials used in classrooms to students located off-campus to facilitate learning, as long as the material is restricted to students. In addition, teachers and students will be allowed to use copyrighted material in lessons conducted over the Internet. This applies both to teachers and students in a physical classroom and those who may be viewing recordings of the lessons over the Internet at a later time. Teachers will also be allowed to digitally deliver course content to students, subject to fair compensation to copyright owners. The provisions currently found in the Copyright Act allowing parts of a work to be copied for display to students will be amended so that they are technologically neutral.
• Time-shifting provisions allow for the making of one recording of communication signals or programs for private purposes. The time-shifting recording must be obtained from a legal source and used only for private purposes. As well, technical protection measures could not be circumvented to make the recording, and the recording cannot be kept "longer than is reasonably necessary in order to listen to or view the program at a more convenient time".
• A "Notice and Notice" regime for Internet Service Providers (ISPs), whereby ISPs, after being notified of infringement allegations by a rights holder, would be obligated to notify the relevant subscriber of the allegations received. ISPs would also be obliged to retain records that would enable the identification of the subscriber allegedly engaged in the infringing activity for a period of six months (or one year, if infringement proceedings are commenced in respect of the claimed infringement within six months of the initial notice from the rights holder). The government has emphasized that this is a more balanced approach and appropriate approach than the "Notice and Take Down" approach taken in some countries such as the United States, or the "Three Strikes" approaches advocated in other jurisdictions, where alleged infringers could be deprived of internet access.
• A change to the provisions on statutory damages for non-commercial infringement from a current maximum of $20,000.00 for infringement of each protected work, to a maximum of $5,000.00 in respect of all infringements involved in the proceedings for all works or other subject-matter. Moreover, if a plaintiff elects statutory damages for non-commercial infringements, it will be barred from collecting statutory damages from that defendant for any other non-commercial infringements occurring before the proceeding began, and no other copyright owner may elect statutory damages against that defendant for non-commercial infringements that were done before the initiation of the proceedings in which statutory damages were elected.
• Fair dealing exceptions, which permit use of a copyrighted work without permission of the copyright owner, have been expanded to include uses for the purposes of education, parody or satire in addition to the current reference to research or private study. While procedurally, a defendant is required to prove that his or her dealing with a work has been fair, the Supreme Court of Canada has noted that the current fair dealing exception is a user's right, and should not be interpreted restrictively. In Alberta (Minister of Education) v. Canadian Copyright Licensing Agency, one of the cases to be heard by the Supreme Court of Canada in December 2011 (which we wrote about here), the Court will be considering the application of the current fair dealing exceptions to photocopies made in educational institutions. It is unclear how the addition of the word "education" into the fair dealing exception would impact the application of the tariffs considered in that case.
• A "Mash-up" exemption, exempting from copyright infringement the use of pre-existing works to create new non-commercial works, defined as "user-generated content". This exemption is only available, however, if the use of the copyrighted work is done solely for non-commercial purposes, does not have a substantial adverse effect (financial or otherwise) on the exploitation of the existing work (including that the new work isn't a substitute for the existing one), and a requirement (if it is reasonable in the circumstances) to mention the sources of the works incorporated in the new work.
• The amendments make it clear that temporary reproductions for technological processes are not copyright infringements if the reproduction is essential to the technological process, exists only for the duration of that process, and the only purpose of the reproduction is to facilitate a use that isn't an infringement of copyright. Similarly, the amendments make clear that an Internet service provider who caches a work to make the telecommunication of the work more efficient, does not, by virtue of that act alone, infringe copyright.

The government has characterized Bill C-11 as a "balanced" approach to copyright, and that assessment will likely be critically evaluated and commented on by various stakeholders in the coming months. We will continue to review and monitor the progress of this proposed legislation, and will provide you with further updates as the bill progresses through the legislative process.

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