Copyright Year In Review, 2010

This past year saw several developments in copyright law, but the tabling of Bill C-32 has the potential to change the face of copyright in Canada. This article discusses highlights of Bill C-32, the Copyright Modernization Act, as well as other key developments in Canadian copyright law in 2010. Aside from Bill C-32, 2010 saw a number of judicial review decisions that upheld Copyright Board rulings, potential changes to the interpretation of the fair dealing provisions and an affirmation of the territoriality of copyright law.

Bill C-32

The title of Bill C-32, the Copyright Modernization Act, describes the stated intent behind the Bill, which received first reading in June and second reading in November. The objectives of Bill C-32 include:

update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards; clarify Internet service providers' (ISPs') liability and make the enabling of online copyright infringement itself an infringement of copyright; permit businesses, educators and libraries to make greater use of copyright material in digital form; allow educators and students to make greater use of copyright material; permit certain uses of copyright material by consumers; give photographers the same rights as other creators; ensure that the Copyright Act remains technologically neutral; and require a review of the Copyright Act by Parliament every five years. The Bill seeks to achieve these goals through four major changes: (i) implementing a notice-and-notice scheme to immunize ISPs from liability; (ii) expanding the scope of the fair dealing exception; (iii) creating new exceptions aimed at consumers; and (iv) making it an offence to circumvent technological protection measures. The parliamentary committee overseeing this Bill is currently hearing from witnesses about these and other key provisions.

Judicial Review of Copyright Board Decisions

The past year saw a number of applications for judicial review of Copyright Board decisions heard by the Federal Court of Appeal (FCA). All but one of these applications were dismissed (leave to appeal to the Supreme Court of Canada was sought on four of these decisions, which will be discussed in detail below). The FCA upheld the decisions of the Copyright Board on issues of fair dealing, evidence, certification of tariffs, whether Internet communications are "to the public," the territorial...