Copyright Reform Process
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Canada's Bill C-61: Questions and Answers
- Amendments to the Copyright Act
- World Intellectual Property Organization (WIPO) Internet Treaties
- Internet Service Providers (ISPs)
- Photographic Works
Amendments to the Copyright Act
Q1. Why is the Copyright Act being amended? How are the proposed reforms good for Canadians?
A. Amendments to Canada's Copyright Act are needed and are long overdue. It has been ten years since the last major reform of this important legislation. In that time, we have seen nothing short of an Internet revolution and major advances in technology. These reforms will enhance copyright owners' ability to control and exploit their works in an online environment and provide Internet service providers (ISPs), educators and consumers with the copyright rules they need to put new technologies to better use.
Q2. What is in the bill that will benefit consumers?
A. The bill clarifies that consumers will now be able to record television shows for later viewing (time shifting); copy legally acquired music onto other devices such as MP3 players or cellphones; and make backup copies of legally acquired books, newspapers, videocassettes and photographs onto devices they own (format shifting). Furthermore, the bill has set new limitations on statutory damages, so individuals would be liable for a fixed amount of $500 if they have infringed copyright for private use, provided that the material is not protected by a technological measure (TM or digital lock). Individuals may still be liable for other types of damages or remedies.
New
Q3.There is nothing in the bill about enforcement. How will these new laws be enforced?
A. The new rights included in the bill would be backed by legal protections already in the Copyright Act — e.g., injunctions, actual and statutory damages and, in certain commercial cases, criminal action. It will be up to creators and other copyright owners to decide how they use these legal "tools" to assert their rights in civil cases. In criminal cases, decisions to investigate an offense that involves commercial activity are made by the appropriate law enforcement agency (e.g., the RCMP, provincial police), and prosecuted by the relevant crown attorney's office. There has been successful prosecution under the camcording legislation that the government introduced last year. It is expected that the amendments in this bill would be enforced in the same way.
New
Q4. Is the $500 a fine? Is it applied to every download or infringement? How will it work?
A. It is not a fine. It is a new $500 limitation to an existing penalty (statutory damages) that creators or other copyright owners can claim to be compensated for illegal use of their work. The courts will continue to be solely responsible for attributing damages, and the money will continue to go to the copyright owner — not the government. Under current copyright law, consumers could be liable for statutory damages for up to $20,000 per infringement. In contrast, the new $500 limitation would apply to all private use infringements identified in the lawsuit (as long as the individual has not hacked a digital lock in the process). For example, if you downloaded 100 movies without authorization for private use:
- Under current law, you could be liable for up to $2 million in statutory damages
- Under the proposed bill, you would be liable for $500
New
Q5. Are statutory damages new in relation to copyright?
A. Statutory damages are not new. They were introduced in copyright law in 1997. Creators or other copyright owners have always had a number of means at their disposal, when they choose to sue someone for copyright infringement. Statutory damages is one way of suing for infringement. What is new is that consumers will now only be liable for $500 if they are taken to court for infringing copyright material for private use (as long as the individual has not hacked a digital lock in the process). Under current copyright law, consumers could be liable for statutory damages for up to $20,000 per infringement. In contrast, the new $500 limitation would apply to all private use infringements identified in the lawsuit.
New
Q6. Does this bill affect cellphones? Can I unlock my cellphone so I can use SIM
cards from other countries to avoid hefty roaming charges? What if I
wanted to unlock my cellphone in order to switch service providers? Can
I do so?
A. The digital locks provisions in the bill are designed to provide clarity in the online marketplace regarding copyright material and to foster innovation. They were not intended to be the basis for preventing consumers from switching wireless service providers. Switching wireless service providers ought to be a matter governed by the contract between the service provider and the client, not by the Copyright Act.
Q7. How will this bill foster creativity and innovation?
A. The proposed reforms seek to support creativity and innovation in several ways. This balanced approach will provide Canadian copyright owners with a legal framework that better allows them to attack online piracy and roll out new online business models in support of the creative process. It also facilitates the use of digital technologies to provide educators and researchers with access to a vast array of copyright material and more efficient ways to conduct research, to deliver course material and lessons, and to contribute to innovation.
Q8. How is the bill different from Bill C-60, the one introduced by the former government?
A. This is a balanced bill that allows consumers to take greater advantage of digital technologies in legal ways (time shifting and format shifting) and limits their exposure to liability for infringing copyright materials for private, non-commercial use, while providing stronger legal protection for TMs or digital locks applied by rights owners to digital works. This bill also provides specific exceptions for the educational use of publicly available Internet materials.
Q9. Why were these specific issues chosen, as opposed to others?
A. The government has adopted a balanced, principle-based approach and prioritized issues that were considered the most important to Canadians. This bill strikes a balance between the access to the copyright material by consumers and the protection of creators' rights. It is important that Canada's copyright framework for the Internet be in line with international standards. In addition, issues were selected to better enable key participants in the knowledge-based economy to fully realize the global opportunities afforded by the Internet. Reform in this regard is long overdue.
World Intellectual Property Organization (WIPO) Internet Treaties
Q10. What are the 1996 WIPO treaties?
A. The WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), also referred to as the WIPO Internet treaties, represent an international consensus on the standard of copyright protection needed to respond to the challenges and opportunities of the Internet and other digital technologies. The treaties, concluded in 1996, establish new rights and protections for authors, sound recording makers and performers of audio works, and build upon the existing international frameworks found in the Berne and Rome conventions. As of May 2008, 65 countries have ratified the WCT and 63 countries have ratified the WPPT, including Australia, Japan and the U.S. Canada participated in the negotiations and signed the treaties in 1997, signalling its endorsement of the approach taken to rights and protections in those agreements. Canada has not yet ratified the treaties.
Q11. Why is the government not ratifying the WIPO treaties now? Isn't the bill about implementing the treaties?
A. The bill is about updating Canada's copyright legislation. This bill does not involve Canada taking on new international obligations and does not propose ratification of the WIPO Internet treaties. While the bill would implement the rights and protections found in the treaties, the ratification process would only be considered after further work has been completed.
Q12. What is in this bill that will help copyright owners deal with the Internet environment?
A. The bill will equip rights holders with new exclusive rights that are tailored to the Internet and that encourage participation in the online economy, as well as with stronger legal remedies to address Internet piracy. Notably, all rights holders will now have an exclusive right to control the making available of copyright material on the Internet. This will further clarify that the unauthorized sharing of copyright material via peer-to-peer (P2P) networks constitutes an infringement of copyright. The bill also provides copyright owners with remedies against those who would circumvent TMs or digital locks (e.g., encryptions or password requirements applied online or on CDs or DVDs), to prevent unauthorized access to, or copying of, their digital material.
Q13. With these amendments, how will Canada compare with its international trading partners?
A. The bill will bring Canada in line with its G7 partners and most of the major economies of the Organisation for Economic Co-operation and Development (OECD) and ensure that Canada's copyright protection will be among the strongest in the world. At the same time, several aspects of the bill are unique to Canada, such as the amendments that address the liability of ISPs and the specific exception for the educational use of publicly available Internet material.
Internet Service Providers (ISPs)
Q14. Why did you choose to limit the liability of ISPs?
A. The government is of the view that those who post infringing material should be liable for copyright infringement and not those who enable access to, and use of, the Internet. Thus, to the extent that ISPs are only intermediaries that enable or facilitate connectivity, the bill clarifies that they are not liable. By providing this legal clarity for ISPs, this approach will continue to encourage the growth of Internet services in Canada.
Notwithstanding, ISPs will be required to discourage infringing uses of their facilities by participating in a "notice and notice" regime. Under this regime, an ISP will be required to forward any notice it receives from a copyright owner to a subscriber who is alleged to be engaging in infringing activities online. ISPs will also be required to retain a record containing the information that would allow the subscriber to be identified in any court proceedings that may ensue. This is important because ISPs are often the only parties that can identify and warn subscribers when they are being accused of infringing copyright. ISPs that fail to retain such records or to forward notices would be liable for civil damages. Under Canadian law, the courts have the ability to order that access to infringing material be blocked in appropriate cases.
Q15. Why has the government chosen a "notice and notice" approach rather than the U.S. "notice and takedown" approach for ISPs?
A. A "notice and takedown" regime typically requires an ISP to block access to material upon receiving a notice from a rights holder that alleges such material to be infringing. No court order is required. A drawback of "notice and takedown" is that it typically applies only to materials posted on websites. It is not well-suited to files shared on P2P networks, arguably the most prevalent source of infringing material, since the files are actually located on the computers of the persons engaged in sharing.
In contrast, the proposed "notice and notice" regime, which is current industry practice, better addresses P2P file sharing. A number of copyright owners who have used this regime have generally expressed satisfaction with the effectiveness of the approach.
Q16. What is in this bill that will help educational institutions, libraries and researchers take greater advantage of the Internet?
A. To facilitate the educational use of digital technologies, the bill includes three measures. First, it provides for a specific exception for educators to use material that has been posted on the Internet by copyright owners who do not expect to be compensated for its use. Second, educational institutions will be able to benefit from digital technology to permit classroom activities to be conducted in remote locations and course materials to be electronically delivered. Finally, libraries will no longer be required to deliver interlibrary loan material in paper form; electronic desktop delivery of materials such as scholarly or scientific journal articles would be permitted.
Photographic Works
Q17. Why is the government changing the copyright rules for photographs? Are there special safeguards for consumers?
A. The bill proposes to change the rules to put photographers on an equal footing with other creators and to harmonize the rules internationally to allow them to better compete in the global market.
More particularly, the author of a work is usually the person who creates it. However, where the work is a photograph, the current rule deems the owner of the initial negative to be the author. Further, with respect to commissioned photographs, the current rule provides that the owner of copyright is generally the person commissioning the photograph. The bill would provide that the photographer is the first owner of copyright.
With respect to commissioned photographs, those who commission photographs will be able to make private, non-commercial uses of the photographs unless they enter into an agreement to the contrary.
In addition, consumers will be allowed to make digital copies of analogue photographs for private, non-commercial use.
