Bill C-11 - Canada's 'New and Improved' Copyright Act

After seven years and three previous attempts at amending the Copyright Act, Canada's Copyright Modernization Act ("Bill C-11") was finally proclaimed into force on November 7, 2012. The following summary will highlight the events leading up to, and some of the main features of, the new additions to Canada's copyright law.

History of the Amendments

The Copyright Act was last amended in 1997. The 1997 amendments were introduced in order to bring Canada into compliance with its international treaty obligations, including the North American Free Trade Agreement and the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations.

Almost a decade after the 1997 amendments, further attempts at legislative reform came in quick sequence: Bill C-60 in 2005, introduced by the Liberal Government of Paul Martin, and then Bill C-61 in 2008 and Bill C-32 in 2010, both introduced by the Conservative minority Governments. All three bills died on the Order Paper when federal elections were called. Stephen Harper's current majority Government finally succeeded in enacting Bill C-11. Bill C-11, when introduced, was identical to Bill C-32. During the Committee process the Government introduced some slight amendments to Bill C-11. Bill C-11 received Royal Assent on June 29, 2012.

A limited number of provisions in Bill C-11 were not proclaimed into force on November 7, 2012, including those provisions relating to the establishment of a "notice and notice" regime, explained below. Rather, they will come into force through a separate order-in-council process in the future.

Rationale for the Amendments

When assessing Bill C-11, it is important to take the external context into account. As was the case in relation to the 1997 amendments, today, Canada's copyright law is being amended to bring it into compliance with two World Intellectual Property Organization ("WIPO") treaties that date back to 1996—the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty ("WPPT").

Not surprisingly, as more than ten years have passed since the time of the 1997 amendments, and in view of consumers' avid consumption of digital materials today, Canada's copyright laws often appear out of step with the ways everyday Canadians use copyright materials. As a result, during the past decade, Canadian courts have been solely responsible for interpreting Canadians' copyright obligations in today's world. This has led to at least ten seminal Supreme Court of Canada judgments shaping copyright law in Canada:

Théberge v. Galerie d'Art du Petit Champlain inc., 2002 SCC 34 CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45 Robertson v. Thomson Corp., 2006 SCC 43 Euro-Excellence Inc. v. Kraft Canada Inc., 2007 SCC 37 Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34 Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36 Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 Re:Sound v. Motion Picture Theatre Associations of Canada, 2012 SCC 38 Highlights of Bill C-11, as Proclaimed in Force

As its name suggests, the Copyright Modernization Act accomplishes the task of modernizing Canadian copyright law in accordance with the WIPO treaties. This being said, some have commented that the new protections granted to copyright owners by Bill C-11 exceed the strict requirements...