With the publication of Order In Council P.C. 2012-1392 in the Canada Gazette on November 7, 2012, the majority of the provisions of the Copyright Modernization Act came into force.
Provisions that are now in force include:
- provisions adding “making available” and “first sale” rights to the Canadian Copyright Act;
- provisions repealing sections providing special rules for copyright in photographs bringing rules in respect thereof more in line with general copyright laws;
- provisions modifying rights in performer’s performances including applying moral rights thereto;
- provisions modifying rights of owners of sound recordings;
- provisions providing further definitions in respect of infringement including a new provision that broadens infringing activity to include providing a service “primarily for the purpose of enabling acts of copyright infringement”;
- provisions adding exceptions to infringement such as in respect of user generated content and time shifting;
- a provision adding “education, parody or satire” to the fair dealing exception;
- provisions codifying safe harbours for network service providers;
- provisions dealing with civil remedies, including limitation of statutory damages available in respect of infringement for non-commercial purposes;
- provisions adding protection for technological protection measures and rights management information, including enactment of civil causes of action for circumvention of technological protection measures and tampering or removal of rights management information; and enactment of a criminal offence in respect of circumvention.
Provisions of the Act that are not yet in force include provisions providing for a notice and notice ISP procedure in respect of which the government has indicated delay is necessary to consider a suitable regulatory process. Those provisions will be brought into force through a separate Order In Council. In addition, there are provisions providing rights under the WIPO Copyright Treaty and Performances and Phonograms Treaty that will only come into force once the treaties come into force in Canada, namely once the formalities of ratification are completed.
It will be interesting to see the effect of the amendments in the coming months. The author expects that the most significant change may be in respect of enforcement against circumvention of technological protection measures.
Brian P. Isaac, Toronto
The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.