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What the New Copyright Law Means For You

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Tuesday November 13, 2012
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.
Comments (27)add comment

Chris Sampson said:

...
Seems reasonable... I'm curious as to weather or not the Youtube law on music extends to profit from advertising sales stemming from successful Youtube videos containing unlicensed music.
November 13, 2012

E.K. said:

How do you make backups if you can't break digital locks?
It seams very contradictory that "The law also legalizes format shifting, copying for private purposes, and the creation of backup copies." while at the same time "the controversial digital lock rules that prohibit by-passing technological protections".

How do I make backups of my ebooks, DVDs, and BlueRays or format shift any of them if I'm not allowed to break the digital locks? I copied all of my DVDs to a hard drive and format shifted them to MP4 format. The hard drive is connected to my TV. This is both a backup in case the DVDs are damaged and also a format shift so that I can play the movies directly on the TV (the TV does not have a DVD player).
November 13, 2012

Crockett said:

...
@E.K.

You can't. At least not legally, but you have a promised blind eye from the Canadian government, for whatever that is worth.

That's well designed and implemented legislation for ya!
November 13, 2012

Peepers said:

...
"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."

I thought this same notice and notice system
had been in place for several years now.Yes,
there are fines that can be laid to individuals
from copyright owners, but if that person's ISP
doesn't bother to comply with the copyright owner's
demands, how will their subscriber face the fines?
November 13, 2012

Peepers said:

...
Also thought of something else. ISP's allowing
big companies to sue their subscribers isn't
going to give a lot of people incentive to
subscribe to their internet service, fearing
their ISP may "snitch" on them if they download
something.
November 13, 2012

Ali said:

Zafar
You mentioned digital lock on DVDs, Videos etc. But what about devices ? Like XBOX 360 and Wii ?
I have modified xbox so that my brother's son (6 year old) can play backup copy of his owned games. Software costs $60+tax, is it legal to use this copy ?

What about the protection that was removed from the XBOX to unlock it ? Is that legal anymore ?
November 13, 2012

Byte said:

Test
"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,"

The big question is: when will this be tested in court? I'm a big fan of remixing music (actually more like covering, re-recording) and releasing it under a creative commons license. For instance, title tracks and in-game music of old Atari 800 and Commodore 64 games.

There's always the danger (and dirty trick) like that was pulled on the Europeans: the copyright cartel just said that while certain *recordings* became public domain, the *lyrics* contained in them were still copyrighted.

While you could argue that the lawmaker must have realized this and thus created an implicit exception for the lyrics *as embodied in the specific recording* and duplication as a whole.

But who wants to test this in court?
November 13, 2012

Ray Saintonge said:

Court tests
I don't depend on government reassurances that the law won't be enforced in private home circumstances; I prefer to depend on being realistic. If you want to circumvent copy protections to make legal home copies just do it. If the powers that be seriously wanted to go after you, consider the hurdles that they would have to face, not the least of them being the burden of proof. They would first need to find out that you were engaged in these activities; how do they do that? And after a tremendous expense in investigation and prosecution what do they get out of it? Unless some individual's behaviour is completely outrageous or pigheaded it is highly unlikely that this will be tested in court. One of the most effective tools in the arsenal of he rights holders is copyright paranoia.
November 13, 2012

crade said:

...
So basically it's legal to time shift, format shift, etc, except it's not because circuventing digital locks for legal purposes is illegal.
November 13, 2012

Devil's Advocate said:

...
"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'..."

It's great that this activity is now recognized as *legal*. Too bad that still won't stop all the unwarranted takedowns.
November 13, 2012

culater said:

...
So this really does nothing to deter illegal downloading, as it is no easier to catch someone than it was before, am I wrong about this.
November 13, 2012

Bernard Katz said:

Digital locks trumping other rightd
This relates to what "crade" has noted above. Is it not true that all the new "rights" and definitions for what constitutes Fair Dealing are subject to the digital protections clause and indeed are trumped by the latter? So claiming Fair Dealing as a user right (or any other user right) is trumped by the digital lock protection. Am I wrong about that? If I'm not, Michael why didn't you make that clear(er) in your overview of Bill C-11??
November 13, 2012

arnoldzoee said:

Hello,
Well, it should be very interesting !!


http://www.lawyerschwartz.com/
November 15, 2012

y371 said:

breaking digital locks
Am I reading this right? Circumventing digital locks is illegal, but damages are limited to the actual damages for non-commercial cases. So, in a nutshell, if I buy a Blu-ray and I rip it so that I can watch it on my Mac, I have broken the law. What I have done is illegal, but if the copyright owner sues me for it, they cannot ask for any damages since I have not caused them any financial harm. In other words, breaking a digital lock for personal purposes (backup, format shifting etc) is always illegal, but only sometimes enforceable as right holders can only ask for their court fees.

Can you comment?
November 15, 2012

Nagilum said:

Circumventing Digital Locks
"Circumventing digital locks ... liability is limited to actual damages in non-commercial cases."

If you already own a DVD or Blu-Ray and format shift it to another device, wouldn't the actual damages incurred be $0?

Also, if you download a movie that you already own on a DVD or Blu-Ray, you are not technically bypassing any digital locks. Since you already own a license to the content in question, would this be legal format shifting? A legal backup?
November 16, 2012

Brian said:

Breaking The Law
I was hoping that Bill C-11 would make it legal for those of us with print disabilities to break the digital locks on ebooks and convert them into other formats such as Daisy. Unfortunately, the bill gives us no such right unless we can restore the locks to their original condition after we're finished breaking them.

If the Harper Government is serious about creating exceptions for people with disabilities then why did they include the condition to not "unduly impair the technological protection measure" in the legislation as it is this very condition that makes it illegal to break the lock on our newly purchased books?

I believe the Harper Government is being disingenuous in pretending to take into consideration those of us with print disabilities. If the Government truly cared then they would not have added any conditions to the digital lock exception section of the law.

This leaves people like me with no alternatives except to break the law or just not read books anymore. Since I choose to continue reading ebooks, the Government or the Police are just going to have to get used to it or come to arrest me - whatever they choose.
November 16, 2012

Rick said:

Allowed the tools and software to break a digital lock
Ok so we are allowed to have possession of said tools, but are we allowed to buy them now ? is the place we buy them from allowed to sell them to us?
November 16, 2012

Tom C. said:

...
So if I understand this new law, basically, we should not be downloading any movie torrents from isohunt.com or other torrent sites. How about torrents for TV shows for which someone has a legal TV satellite subscription? Many TV shows are already available online, but watchng them as a streaming video is not always practical, especially if you are travelling and do not have an Internet connection. To make things easier for the ordinary person, why don't they just shut down sites like isohunt.com? How is a normal person browsing the Net who stumbles across a Torrent website supposed to realize using a bittorrent program to download movies is illegal? (just being a devil's advocate here).
November 28, 2012

Godot said:

Some great questions
Some great questions here. I can't wait for Michael to tackle them. "What it all means Part 2"
November 30, 2012

A Canadian said:

What is a Digital Lock?
What is a digital lock? When I Google digital lock i get digital key pad locks. I have never come across something with a lock on it. I assume they mean DRM protected content... So if I rip a CD to MP3 its illegal but if I use the headphone jack and record and compress to MP3 its legal? Don't all satellite feeds and cable providers have a digital lock on their media?
December 04, 2012

ugh said:

So if we
rip a bluray for viewing on a mac the damages are no more than the cost of the movie from apple?

what if apple doesn't have the movie in question for sale? no damages?
December 04, 2012

shuttleman said:

Streaming movies online for free..
Is it now illegal to view streaming movies from a platform like XBMC???- based on the Notice- to -Notice, should not there be an effective date, and will ISP - agree ??- or will a smart person figure out a manner circumvent the law on "streaming"..
December 04, 2012

Mick Dundee said:

Prez
That's good news. Now I'll just make sure I get $5000 worth of illegal downloads to make up for the fine I might have to pay.
February 20, 2013

Revy said:

Mashups in Canada
I'm pretty happy about mashups being included in the 'Youtube' law. I imagine that 3rd party advertising or product sales and promotion are fine for now?
February 27, 2013

crisdale said:

los angeles business lawyer
for me it's a new copy then i will very choose that because it's new
April 11, 2013

Roman Coppola said:

Business Lawyer
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February 20, 2014

Arshia said:

Canadian High Schooler
I wonder, how will this affect YouTube channels other than music, what about gaming channels for instance. To be honest I am worried, I did a project on this Bill a few years ago and I remember having some concerns, then again they must have modified it. Thoughts?
February 21, 2014

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