2012 proved to be a very important year of change in Canadian copyright law. As summarized in the July 2012 edition of Knowledge Bytes, the Supreme Court of Canada released five key copyright decisions on the same day. Further developments to the Canadian copyright landscape came into force in November 2012 when, after three previous failed attempts to amend the Copyright Act (the “Act”), a substantial number of modifications to the Act were made through the Copyright Modernization Act. The following outlines a number of the most significant changes to the Copyright Act.
1. Fair Dealing Exceptions
The amended Act expanded the fair dealing exceptions, which were previously restricted to research or private study, criticism or review, and news reporting. As a result of the changes, fair dealing exceptions now include education, parody and satire. While the enhanced Canadian fair dealing exceptions are not as expansive as those under the U.S.’s fair use doctrine, the amendments have moved the Canadian exceptions in the direction of their U.S. counterparts.
2. Technological Protection Measures
One of the central amendments to the Act is the addition of technological protection measures (TPM), or digital lock, provisions. By way of these modifications, and under most circumstances, an individual will be liable if he or she circumvents a digital lock, offers circumvention services to the public, or manufactures or imports devices, technologies or components whose primary function is to circumvent a TPM.
3. “Mashup” Exception
The amended Act also provides for a new exception to copyright infringement whereby an individual will be permitted, under certain circumstances, to use existing copyright-protected works to create new works. However, such permitted “mashups” may only be for non-commercial purposes, and the use of the new works must not have a substantially adverse effect, financial or otherwise, on the exploitation of the existing work.
4. Time Shifting and Format Shifting
By way of the amendments, time shifting and format shifting exceptions are now formally recognized in the Act. Time shifting can occur when, for example, an individual records a television program on a personal video recorder (PVR) for later viewing. Subsequent viewing of the recorded program by the individual is now formally recognized as not constituting copyright infringement, subject to certain limitations found in the revised Act. Format shifting can occur when, for example, an individual copies copyright-protected music from his or her personal computer on to his or her MP3 player. Subject to certain limitations, this copying from one format to another does not constitute copyright infringement. Importantly, however, for this exception to be operative, the copying from one format to another cannot have occurred as a result of TPM circumvention as described above.
5. Commissioned Photographs
The amended Act repealed provisions that related to copyright ownership in photographs. Prior to the enacted amendments, a person who commissioned a photograph was the first owner of the photograph. As a result of the amendments, photographs will be treated like other works under the revised Act and initial ownership will vest with the photographer.
6. Statutory Damages
The modified Act has also altered statutory damages provisions in Canada. Prior to the amendments, a copyright owner could elect for statutory damages of between $500 to $20,000 per work infringed without regard as to whether the infringement was for commercial or non-commercial purposes. The amendments to the Act now differentiate between assessment of damages arising out of infringement for commercial and non-commercial purposes: a copyright owner may now elect statutory damages of $100 to $5,000 if the infringements involved in the proceedings are for non-commercial purposes and $500 to $20,000 if the infringements in the proceedings are for commercial purposes.
As with all new or amended legislation, the true test of its impact will be how the Canadian courts interpret the newly revised Copyright Act. As such, 2013 promises to be another important year for Canadian copyright law as the Canadian courts release their first decisions guided by this updated statute.