There are several other notable provisions and exclusions. First, although the notice-and-notice provisions for Internet providers have not taken effect, but the decision to stop short of the U.S.-style notice-and-takedown or a notice-and-termination rule is a huge victory for Canadians that provides a balanced approach safeguarding privacy and access to the Internet. Second, the government also rejected an expansion of the private copying levy. In fact, the government today also published regulations specifically excluding MicroSD cards from the levy. Third, the law includes an “enabler provision” that will make it easier for rights holders to sue sites or services that facilitate infringement.
Fourth, the digital lock rules are now also in effect. This was the most controversial aspect of the bill as the government caved to U.S. pressure despite widespread opposition to its restrictive approach. There are some exceptions to the digital lock rules (including for law enforcement, interoperability, encryption research, security, privacy, unlocking cellphones, and persons with perceptual disabilities), but these are drafted in a very restrictive manner. The government has established a regulatory process to allow for new digital lock exceptions, which creates the possibility of Canadians seeking new exceptions to at least match some of the U.S. exceptions on DVDs or streaming video. At the moment, Canada is arguably more restrictive than even the U.S., though the digital lock rules do not carry significant penalties for individuals. Under Canadian law, it is not an infringement to possess tools or software that can be used to circumvent digital locks and liability is limited to actual damages in non-commercial cases.
As I wrote earlier this week, copyright is part of a sea change in digital policy making in Canada. In 2007, the government was hours away from introducing a bill that contained virtually no user-oriented provisions. Today, a bill took effect that has its flaws but also creates some of the most expansive copyright user rights in the world.