More than a decade of debate over Canadian copyright reform came to a conclusion last week as Bill C-11, the fourth try at reform since 2005, formally took effect. While several elements of the bill still await further regulations, the biggest overhaul of Canadian copyright law in years is now largely complete.
My weekly technology law column (Toronto Star version, homepage version) notes the wholesale changes have left many Canadians wondering how the law will affect them, as they seek plain language about what they can do, what they can’t, and what consequences they could face should they run afoul of the law.
The good news is that the law now features a wide range of user-oriented provisions that legalize common activities. For example, time shifting, or the recording of television shows, is now legal under Canadian copyright after years of residing in a grey area. The law also legalizes format shifting, copying for private purposes, and the creation of backup copies. This will prove helpful for those seeking to digitize content, transfer content to portable devices, or create backups to guard against accidental deletion or data loss.
Canadians can also take greater advantage of fair dealing, which allows users to make use of excerpts or other portions of copyright works without the need for permission or payment. The scope of fair dealing has been expanded with the addition of three new purposes: education, satire, and parody.
Fair dealing now covers eight purposes (research, private study, news reporting, criticism, and review comprise the other five). When combined with the Supreme Court of Canada’s recent decisions that emphasized the importance of fair dealing as users’ rights, the law now features considerable flexibility that allows Canadians to make greater use of works without prior permission or fear of liability.
The law also includes a unique user generated content provision that establishes a legal safe harbour for creators of non-commercial user generated content such as remixed music, mashup videos, or home movies with commercial music in the background. The provision is often referred to as the “YouTube exception”, though it is not limited to videos.
The most significant new restriction involves the controversial digital lock rules that prohibit by-passing technological protections found on DVDs, software, and electronic books. There are some exceptions to this prohibition (including the ability to circumvent the digital lock to protect personal information, unlock a cellphone, or access content if the person has a perceptual disability), but these are drafted in a very restrictive manner.
What if a Canadian violates the law by copying more than is permitted under fair dealing, circumvents a digital lock, or engages in unauthorized file sharing?
The law generally tries to target genuinely “bad actors”, while leaving individuals alone. For example, the law now includes a cap of $5,000 for all non-commercial infringement (commercial infringement can result in liability of $20,000 per infringement). The change reduces the likelihood of lawsuits against individuals for non-commercial activities, including unauthorized downloading or mistaken reliance on fair dealing.
The Canadian approach to unauthorized downloading is now centered on a “notice-and-notice” system that is likely to take effect next year. The system allows rights holders to send notifications alleging infringement to Internet providers, who must forward the notices to their subscribers. The Internet provider is not required to disclose the subscriber information nor take any further action.
Circumventing a digital lock raises different legal issues. The Canadian digital lock rules are amongst the most restrictive in the world, but they do not carry significant penalties for individuals. Under the new 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 former Conservative Member of Parliament Lee Richardson noted last year, this suggests that individuals are unlikely to face legal action if they circumvent a digital lock, though larger institutions may establish policies prohibiting the practice.