Intellectual Property Legal News - June 3, 2013 • Volume 1, Number 3

Canada's Long-Awaited Copyright Modernization Takes Effect

By Paul E. Bain and Christopher G. Graham, Student-at-Law

To much fanfare and after years of debate and consultation, the government of Canada passed the most important reforms to Canadian copyright law in several generations. The Copyright Modernization Act (the "CMA") became law on November 7, 2012, with a stated policy of striking "the right balance between the needs of creators and users".

In addition to bringing Canadian copyright law into compliance with two World Intellectual Property Organization ("WIPO") treaties to which Canada is a signatory (the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty), the CMA brings Canada's copyright laws into the 21st Century, recognizing technological advances since the last changes to the Copyright Act in 1997. The changes are wide-ranging and significant.

The CMA greatly expands the concept of 'fair dealing' (ss. 29, 29.1 and 29.2), the Canadian equivalent of fair use, ie. those uses of copyrighted material which would otherwise be considered infringements. Prior to the CMA, fair dealing was limited to research, private study, criticism or review, and news reporting. The CMA introduced three new fair dealing defences: education, parody, and satire. Of course, whether a given use can be considered to fall within one of the fair dealing exceptions is up to the courts.

The CMA also created four new categories of acceptable fair dealing, primarily for personal use: format shifting, time-shifting, backup copying and user-generated content. Subject to certain limitations, s. 29.22, the format-shifting exception allows an individual to reproduce non-infringing copyrighted materials that were legally obtained (but not borrowed or rented) by the individual. For example, a person who legally purchases a non-infringing CD may now transfer the music embodied in that CD to an MP3 player without liability. The reproduction must be for the individual's private purposes and cannot be given away. Technological protection measures cannot be circumvented to make the reproduction.

With certain limitations, the time-shifting exception, s. 29.23, authorizes an individual to fix a communication signal or reproduce a work, recording or performance that is being broadcast, provided that the fixation or recording is only used for the individual's private purposes.

This exception is premised upon the individual legally receiving the signal or broadcast, making only one recording, and not giving the recording away. The individual must not circumvent any technological protection measures and may only keep the recording as long as reasonably necessary to view or listen to it at a more convenient time.

Copying for the purpose of backing up is also now allowed under s. 29.24. A person may make such a copy if the sole reason for doing so is to guard against the copyrighted material being lost, damaged or otherwise unusable. As with the other exceptions, the original may not be an infringing copy, technological protection measures may not be circumvented, and the reproductions may not be given away.

Under the user-generated content provision (the so-called 'YouTube' exception), individuals can...