The Bill seeks to balance the rights of consumers and creators in the modern age of new technology and bring Canada in line with its international obligations under the WIPO Internet Treaties.

On June 2, 2010 the proposed Copyright Modernization Act (the “Bill”) was introduced into parliament by the Honourable Tony Clement, Minister of Industry and the Honourable James Moore, Minister of Canadian Heritage and Official Languages.  The purpose of the Bill, as the short title suggests, is to bring Canada’s copyright laws into the twenty-first century and also to ratify the World Intellectual Property Organization’s Copyright Treaty and Performances and Phonograms Treaty (the “WIPO Internet Treaties”), both of which enhance the protection of copyright works on the internet.

The Bill introduces the terminology Technological Protection Measures (the “TPM”), which refer to ways in which owners of digital copyright protect their work through the use of digital locks.  The Bill recognises the importance of the protection of digital content and the protection of Canadian online businesses.  Circumvention of TPM is prohibited under the Bill along with providing services to the public, or manufacturing technology or devices that circumvent TPM.

However, there are several exceptions to the blanket prohibition on circumventing TPM  including some interesting exceptions for software developers.  They will be allowed to ‘reverse engineer’ digital locks for the purpose of research and development.  In addition TPM can be circumvented for other reasons including for the purposes of  law enforcement and national security, unlocking wireless devices and there are exceptions for persons with perceptual disabilities. The Government will retain the ability to regulate in this area and to create new exceptions.

Several concerns about the Bill have been raised;  the Consumers Council of Canada and the Canadian Consumer Initiative have jointly voiced concern that consumers could easily be caught in contravention of the Bill.  They specifically refer to the TPMs which restrict everyday uses of technology, such as making a backup copy of a DVD for private purposes.  Although making a backup copy of copyright material is expressly allowed in the Bill, it is not allowed if the original work is protected by a TPM.  This contradiction is something that needs to be clarified before the Bill comes into force.

The Bill also contains several exceptions for consumers who will be able to use media, audio and digital content for private use as long as it does not contain TPMs. These exceptions include being able to record television, internet and radio broadcasts for enjoyment at a later date.  There are also provisions to allow consumers to copy content that they acquire legally onto other devices that they own.  This will allow, among other things, for music to be copied onto devices such as MP3 players for personal use.

The main concern from consumer groups is that the use of TPM  leaves consumers to the mercy of media companies, who can control the majority of online commercial content through the use of TPM.  Ultimately this will restrict the use of much of the content and leave consumers in breach of the Bill if they were to use any of the content in a way that is restricted by the copyright owner, i.e media companies.  Therefore, the Bill creates a situation where media companies can control much of the content the correlating use of that content in Canada.

The role of Internet Service Providers  (“ISP”) in policing copyright infringements is formalized under the Bill.  ISPs will not be held liable for the copyright infringements for consumers who use their service.  However, the Bill includes the “notice and notice” regime which is currently being used.  This system allows Copyright holders to contact an ISP and provide them with notice that a consumer has infringed on their copyright.  The ISP can then forward the notice to the consumer.   The identity of the consumer can then be released with a court order.  A failure on behalf of the ISP to co-operate with the copyright holders can result in civil damages.

The Bill also includes several provisions relating to the use of copyright material in educational settings, generally referred to as the “Fair Dealing Exception”. However, the Canadian Bar Association has pointed out that further refinement of the Fair Dealing Exception related to education is required to provide clarification and certainty for educational users.

Infringement of copyright under the Bill is reduced significantly from what it is currently.  As it stands now courts can award penalties of between $500 to $20,000 per infringement of copyright, regardless of if it was for personal or commercial use.  The Bill reduces the penalty for non-commercial infringement to between $100 and $5,000 in total damages, however; there is no change to the penalties for commercial infringement.

As of the Dissolution of Parliament, the Bill was at its second reading and referred to a committee in the House of Commons, it awaits to be seen as to what changes can be expected to the Bill as it goes through the parliamentary process in 2011 with the new Government.

Nicola Collins, LLB, BCA — Articling Student