Article by Tony Turco and Alex Matheson, ©2005 Blake, Cassels & Graydon LLP
This article was originally published in Blakes Bulletin on Intellectual Property, October 2005.
On June 20, 2005, the Canadian Government introduced a bill which proposes significant amendments to the Copyright Act (Bill C-60) and represents the next step in Canada’s ongoing copyright reform. The amendments focus primarily on the challenges that the Internet and digital technologies pose for copyright law.
A number of the proposed changes would implement protections found in two WIPO treaties, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, which Canada has signed but has yet to ratify. It is expected that Canada will ratify these treaties once the Copyright Act has been amended to bring it into conformity with the treaties’ requirements.
Generally, Bill C-60 is intended to address the challenges of digital technology by implementing the provisions of the WIPO treaties. In particular, rights holders would be given a variety of new rights. Many rights holders would have the sole right to control the making available of their copyrighted material on the Internet. The bill also places an express limitation on the scope of the private copying exemption, by providing that private copies of sound recordings cannot be uploaded to the Internet or further distributed.
Bill C-60 also introduces provisions dealing with the circumvention of technological protection measures (TPMs), such as encryption, and the alteration or removal of rights management information (RMI), which identifies content protected by copyright, or its author/maker, and the terms and conditions of its use. However, these acts would only attract liability when done to further or to conceal copyright infringement.
The role of Internet service providers (ISPs) is also addressed in Bill C-60. ISPs would be exempt from liability for copyrighted material circulating on their networks for which they act purely as intermediaries. In addition, caching of electronic information by ISPs, done for efficiency purposes, would not itself constitute infringement. These provisions incorporate the conclusions of the Supreme Court of Canada in its 2004 decision in Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers. Copyright liability would remain with those persons, including ISPs, who post or transmit copyrighted material without authorization.
ISPs would potentially play a significant role in curbing infringing activities by virtue of the proposed "notice and notice" regime, under which an ISP would be required to forward any notice it receives from a copyright owner to a subscriber who is alleged to be engaged in infringing activities online. The ISP would also be required to retain, for a period of up to six months, information sufficient to identify the subscriber in question.
Additionally, Bill C-60 contains provisions that aim to facilitate the use of digital technologies for educational and research purposes. Specifically, educational institutions would be permitted to use the Internet to deliver certain copyright protected material, for example, lectures and licensed teaching material, electronically, provided that appropriate safeguards are in place to prevent the unauthorized transmission of works.
Performers would also be given additional rights, such as rights over fixation, communication by telecommunication, public performance, and rental. Moral rights protection would be extended to performers’ performances.
The copyright bundle of rights is to be expanded by the inclusion of a "first sale" right over any tangible, material form of work.
Reforms introduced by the bill also extend to copyright in photographs. Photographs have historically been treated quite differently from other copyright works. Ownership of copyright would reside in the person commissioning (for valuable consideration) the original, rather than the author, even without a written assignment. The term of protection is a fixed time running from creation (rather than from the death of the author), for photographs owned by any corporation in which the author does not have voting control. Under the proposed legislation, these distinctions would cease to exist.
Comments have been invited regarding the details of the draft legislation and so changes may well occur as the bill moves forward.
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.
