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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.
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Appeared in the Toronto Star on November 11, 2012 as What the New Copyright Law Means For You
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.
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.
Michael Geist holds the Canada Research Chair in Internet and
E-commerce Law at the University of Ottawa, Faculty of Law. He can
reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.
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