Canada’s New Copyright Modernization Act

The new Copyright Modernization Act introduces some very significant changes to copyright law in Canada. Most, but not all of these changes, relate to digital media and the Internet and are intended to bring Canada in line with international treaties. Some of the major changes include: (a) prohibiting the removal, tampering with or circumvention of “digital locks” embedded in certain digital media to restrict unauthorized downloading or copying; (b) permitting reproduction of copyrighted works, for personal use, into another format (format shifting), for later use (time shifting) or for back-up purposes; (c) permitting reproduction of copyrighted works for the purposes of satire, parody and online educational purposes; (d) permitting the use of existing copyrighted works to create new, non-commercial “user generated content” (aka “mash-ups”); (e) entitling photographers to the same presumptions of ownership as other creators enjoys with respect to their works; (f) providing all copyright owners with the right to control how their works are made available online; (g) lowering statutory damages to $100 - $5000 for non-commercial copyright infringement (from the previous range of $500 - $20,000).

Until now, copyright law in Canada has been hopelessly out of date in terms of the technologies available for creating, distributing and using copyrighted works. Courts have been applying laws that were drafted a hundred years ago to modern technology, with a lot of resulting uncertainty. At the very least, the new legislation makes clearer what distributors and consumers of copyrighted works are allowed to do with them. Hopefully this will give companies and individuals more certainty in their transactions and in managing risks.

Without a doubt, it was necessary to bring Canada’s copyright laws into the digital age and to align them with the standards of the World Intellectual Property Organization. Whether each of the specific amendments was needed to fulfill those goals is hard to say. Probably the most controversial are those dealing with “technological prevention measures” (“TPMs” aka “digital locks”) that prohibit making, selling or using technology to circumvent TPMs or otherwise tampering with or removing TPMs. Personally, I think some legislation was necessary to prevent the use of technology designed specifically for pirating software, movies and other content. But the provisions in the new Act may go too far. They seem to prohibit the removal of a TPM even to engage in a permitted use of a copyrighted work – e.g. for private study, backup or format shifting.

While the goal of the new legislation was to balance the interests of creators in protecting their works with the interests of consumers in the digital age, the balance may have tipped too far in favour of consumers. For instance, the provisions dealing with “user generated content” could excuse widespread reproduction of copyrighted works in the social media realm, cheapening the commercial value of those works. And the new exceptions for educational uses of copyrighted works could threaten the viability of Canada’s scholarly, academic and text book publishing industries.

The changes that most directly affect everyday people are the explicit permission to copy works, for personal use, into another format (format shifting), for later use (time shifting), or for back-up purposes. While people have been doing these things with impunity for years, the more conscientious among us no longer need to worry about breaking the law. Social media users can also feel more comfortable in creating “mash ups” of copyrighted music and video on YouTube and their profile pages than they could previously.