by Jason Young
Last week Canada moved one step closer to dealing with some of the thornier intellectual property issues of the digital era. The proposed amendments to Canada’s Copyright Act chart a “made-in-Canada” course to implementing the WIPO ‘Internet Treaties’, which Canada signed in 1996, turning away from the US and Australian approaches in a number of key areas.
First, the proposed bill would adopt a limited anti-circumvention provision for technological protection measures. That is, the circumvention of a technological protection measure applied to copyright material would only be illegal if it was carried out with the objective of infringing copyright. Legitimate access, as authorized by the statute, would not be altered. The proposal further anticipates that circumvention for the purposes of making private copies of sound recordings would not be permitted.
Second, the amendments would adopt a new exclusive right of “making available”. The right would allow copyright holders to authorize the availability of their protected works online, thus making it illegal to passively make available music files over a peer-to-peer network, an evidentiary problem which the Federal Court eliminated last year in its decision in BMG Canada v John Doe  3 FC 241. The amendments will also clarify the scope of the private copying exemption to explicitly prohibit uploading or further distribution of private copies. Canadians therefore will likely see an increase in file-sharing lawsuits by next year.
Third, the proposed bill would exempt Internet Service Providers from liability for copyright material circulating on their networks over which they have no control or authority, ie, when they act purely as intermediaries. Copyright liability would remain with those persons, including ISPs, who post or transmit copyright material without authorization. This will confirm the recent decision of the Supreme Court of Canada in Society of Composers, Authors and Music Publishers of Canada v Canadian Association of Internet Providers  2 SCR 427.
Fourth, a “notice and notice” regime would be adopted under which an ISP would be required to forward any notice it receives from a copyright owner to a subscriber who is alleged to be engaging in infringing activities on-line. The ISP would also be required to retain, for a set period of time, information sufficient to identify the subscriber in question.
Fifth, the amendments would expand fair dealing for educational and research purposes, facilitating the adoption by educational institutions and libraries of new distribution technologies.
Finally, the existing rules on copyright in photographs will be repealed to harmonize the copyright treatment of photographers with those of other creators. Regarding commissioned photographs, those who commission photographs for private or domestic purposes will be able to make certain private or non-commercial uses of the photographs, unless they enter into an agreement to the contrary. The proposal would leave untouched protections of personal information and privacy legislation at the federal and provincial levels, which would continue to apply regardless of the ownership of copyright in commissioned photographs. This had been a major criticism of Bill S-9 introduced in the Senate last year.
The Ministers of Industry and Canadian Heritage issued their joint statement on the proposals in response to a report last year by the Standing Committee on Canadian Heritage which was widely criticized by public interest stakeholders as being too favourable to big content producers. Copyright reform has always been a polarizing issue. These proposals depart significantly from those of the Standing Committee and go furthest yet in tempering the conflicting rhetoric of various stakeholders.
A copy of the Joint Statement by the Ministers of Industry and Canadian Heritage, a backgrounder of the proposed legislation and a series of frequently asked questions can be found here:
© 2005 Deeth Williams Wall LLP. Reprinted by permission of Deeth Williams Wall LLP, one of Canada’s leading intellectual property and technology law firms