vendredi, juin 25, 2010

Canada: Bill C-32 - modernization of the Copyright Act

Bill C-32 - modernization of the Copyright Act

Contributed by Smart & Biggar/Fetherstonhaugh


The Canadian government has tabled Bill C-32, An Act to Amend the Copyright Act. Its first reading took place on June 2 2010.
(1) This is the third attempt by governments in Canada to update the Copyright Act to better handle issues relating to digital content and to implement the World Intellectual Property Internet Treaties. The last two attempts resulted in bills that died on the table - the most recent attempt being Bill C-61, which could not be passed before the dissolution of Parliament in September 2008.

Similar to Bill C-61, Bill C-32 includes provisions directed at balancing copyright protection to meet the needs of the digital age. Both bills:

  • deal with the liability of service providers;
  • clarify and add exceptions to infringement;
  • detail rights related to technical protective measures and rights management information; and
  • make clarifications regarding the liability of individuals relating to reproductions made for personal (non-commercial) purposes.

As with Bill C-61, the apparent intent of Bill C-32 is to provide strong protection for technical protective measures used to prevent copyright infringement while limiting the relief available against non-commercial, personal use infringement.

With respect to service providers, clear exceptions are outlined for "providers of network services or information location tools", coupled with a notice system intended to assist rights holders in addressing online infringement. While the notice system and its provisions were criticized during consultations held in Summer and Autumn 2009, essentially Bill C-32 includes the same provisions as Bill C-61. However, a provision has been added that specifically makes it an infringement of copyright for a person to provide a service that he or she knows or should know is designed primarily to enable acts of copyright infringement. Essentially, a contributory-liability regime is proposed in respect of service providers whose economic viability is dependent on facilitating infringement. Such a provision may affect, for instance, operators of BitTorrent websites.

As noted, Bill C-32 also provides and seeks to clarify exceptions to infringement. The most significant change is likely to be the expansion of the 'fair dealing' exception to add "education, parody or satire" to the existing categories of research and private study.

There are also provisions that deal with making copies for private purposes of works that were legitimately and legally obtained. The private copying exception is very broad, provided that the reproductions are "used only for private purposes". However, the exceptions will not apply if technical protective measures have been circumvented to allow creation of the copies. It is also made clear that all copies must be destroyed once the user gives up possession of the legitimate source copy, and that the user is not entitled to provide reproductions to others for their private use. Exceptions are also provided for non-commercial use of copyrighted works in user-generated content. These exceptions are clearly directed at the current social networking environment, where users commonly generate 'free' content while making liberal use of the copyrighted works of others.

Again emphasizing the trend towards minimizing liability for private use, provisions dealing with statutory damages have been amended. These provisions reduce the maximum fine for personal use infringement and make it clear that the owner of a copyrighted work may claim statutory damages only once for all similar prior infringements. After the first case, rights holders will need to prove actual damages in order to collect. Further, the maximum award for statutory damages is C$5,000 for all works (as opposed to a maximum of C$20,000 per work regarding infringements for commercial purposes).

While it is believed that there is still cause for concern regarding the ability to enforce against online infringement of copyrights in a cost-effective manner, Bill C-32 is clearly helpful in addressing commercial copyright piracy in particular. Further, the strong provisions against interfering with technical protective measures imply an intent to use market forces and technological measures to find a balance between the rights of copyright owners and the disseminators and users of copyrighted works.

For further information on this topic please contact Brian P Isaac at Smart & Biggar/Fetherstonhaugh by telephone (+1 416 593 5514), fax (+1 416 591 1690) or email (bisaac@smart-biggar.ca).

Endnotes

(1) The complete text of the bill may be reviewed at http://www2.parl.gc.ca/HousePublications/Publication.aspx?Docid=4580265&file=4.