1. The rights of those who hold copyright must be balanced with the needs of users to access copyright works. Our quality of life as Canadians is closely tied to the diversity of our society and the vitality of our communities. By making use of our creativity and talent, Canadians contribute to the development of our country, culturally, socially and economically. We are creating a better society. Access to culture and information is important to Canadians. Limitations and exceptions to copyright protection are in place to complement the uses authorized by rights holders. There are several types of users (e.g., consumers, educators, libraries), each with its own copyright priorities. These groups view the Internet as an essential means of conducting research, exchanging information and stimulating further innovation. It is understandable that user groups are concerned with proposals that provide strong protection for rights holders. The Copyright Act already sets out provisions to afford access to copyright-protected material. For example, the Act provides that any "fair dealing" with a work for purposes of private study or research, or for criticism, review or news reporting, is not an infringement of copyright. In addition to fair dealing, the Copyright Act provides exceptions for different categories of users. One category is for not-for-profit educational institutions, which are permitted to make copies and perform works protected by copyright, subject to certain restrictions. Another category is not-for-profit libraries, archives and museums, which may copy published and unpublished works protected by copyright in order to maintain and manage their collections. The digital age has seen an explosion in the variety of products and formats. Canadians do not want to pay for the same song twice just so that they can enjoy the music on their computers or MP3 players. They also want to be able to record a television show at home for later viewing or make a copy of a newspaper article or photograph in a format different from the original. Not-for-profit institutions, for their part, want to fully exploit the numerous possibilities offered by the Internet for research and education. The government believes that the law must be modernized to take these new uses into account.
2. The Copyright Act must provide clear, predictable and fair rules to allow Canadians to derive benefits from their creations. People who work hard and use their talents and abilities to create things should be remunerated for their efforts. The Copyright Act provides protection to creators and other rights holders in the form of rights over the communication, reproduction and other uses of their work. The creation of Canadian and other content, and the availability of diverse choices for Canadians, depend on adequate copyright protection. Without such protection, the incentive to produce original work is greatly reduced. The Internet has threatened the ability of rights holders to prevent the unauthorized use of works and other protected subject matter. People around the world have taken advantage of the Internet to access content that is available in user-friendly forms. This access is often made through new legitimate services and platforms, and also via free alternatives, both legitimate and illegitimate, to the traditional channels of distribution of copyright material. The government believes that it is important to provide stronger measures that rights holders could decide to use to fully exploit and enforce their rights and combat infringement in an Internet environment.
3. The Copyright Act should foster innovation in an effort to attract investment and high-paying jobs to Canada. The Copyright Act affects many sectors of the Canadian economy. According to a study commissioned by the Department of Canadian Heritage, Canada's copyright industries made up 4.5 percent of the Canadian economy ($46.8 billion) in 2004. Canada has a very high rate of Internet penetration. According to a 2006 survey conducted for the Canadian Radio-television and Telecommunications Commission, 70 percent of Canadian households had Internet access, and more than 85 percent of them were using a broadband connection. The Government of Canada has invested heavily to ensure that high-speed, high-bandwidth Internet access is available to Canadians at reasonable cost. This has prompted growth in Canada's Internet service provider (ISP) community. In business, educational and research contexts, the ability to use high-quality Internet services to create or access copyright content will be an increasingly important factor in ensuring Canada's future economic success and in promoting Canada's cultural presence around the world. The Internet opens new markets and offers new ways to conduct business. Creators and rights holders recognize that traditional channels of distribution often are insufficient to remain competitive. They have been developing new online services to complement traditional ones, but have also requested, as have user groups, that the current legal framework be improved to optimize access and delivery.
4. Canada must ensure that its copyright framework for the Internet is in line with international standards. The Internet has dramatically reduced traditional boundaries between countries. Music, film and video games can now be shared around the planet with a few mouse clicks. To be meaningful, the protections offered by Canada must, therefore, be in line with the protections offered in other countries. The international community must work together to ensure domestic copyright laws are effective in the global community. The World Intellectual Property Organization (WIPO) Copyright Treaty (WCT) and Performances and Phonograms Treaty (WPPT) address copyright issues and the Internet. They provide responses to the challenges that new digital technologies have presented to copyright protection, and their approach represents the most developed and coherent response by the international community to these new challenges. The purpose of the WIPO Internet treaties is to improve the protection of the already existing copyright and related rights treaties: the Berne Convention (1971) and Rome Convention (1961). These treaties date back more than a quarter of a century, to the days before the development of personal computers and the Internet. The WCT and WPPT contain a number of new standards and serve to clarify these older treaties. Canada participated in the discussions on the WIPO Internet treaties and signed them in 1997, signalling its endorsement of the approach taken to rights and protections in these agreements.
1. Private Use by Canadian Consumers The proposed bill balances the new rights and protections of rights holders with those of Canadians who use digital technologies for personal enjoyment at home and with their families. These new measures are needed to allow Canadian consumers to benefit from the new products and formats available. The following provisions would ensure that Canadian consumers can legally take advantage of these new technologies for private, non-commercial use:
2. New Rights and Protections New rights and protections are required if rights holders are to better reach new markets, adapt their business models and combat infringement. The government considers a "making available" right and legal protection for TMs essential. In a digital environment, reproductions are easily made and disseminated. Copyright regimes must provide rights holders with the ability to seek remuneration from uses of their works and to authorize uses that serve their interests. The bill proposes a making available right that would give the rights holder the ability to determine whether and how their material is posted and shared online. The Act already provides authors with a making available right. The bill would extend such protection to performers and producers as well. TMs are another mechanism to achieve this important copyright objective. The bill would make it illegal to circumvent or bypass technologies that control access to protected material. It would also become illegal to provide, market or import tools designed to enable circumvention. The bill offers protection for Rights Management Information (RMI). RMIs are used to identify the rights holders of original work or to outline copyright restrictions on the use of the work. The bill would prevent the removal or alteration of RMIs. The bill contains further provisions:
3. Access for Research and Education The bill contains several provisions to address concerns from educators and researchers about reasonable access by:
4. Internet Service Providers The bill contains provisions to address the liability of ISPs and the role they should play in curbing copyright-infringing activities on their networks. To the extent that ISPs enable Internet connectivity and facilitate communication between users, the bill makes it clear that they are not liable for the infringements of their subscribers. At the same time, however, ISPs must do their part in discouraging copyright infringement. ISPs are the link between the copyright owner and an alleged infringer. That is, but for the ISP, the copyright owner has virtually no means of identifying and communicating with the alleged infringer (a "notice and notice" approach). ISPs would become legally obligated to forward to their subscribers any allegations of infringement that they receive from rights holders. ISPs also would be obliged to keep a record of the information that would enable the identification of the subscriber engaged in the alleged infringing activity for six months. In the event of litigation, this record-keeping requirement would help ensure that relevant information was not lost. This "notice and notice" approach represents a unique made-in-Canada method of dealing with copyright infringement. Some rights holders do not support the proposed exemption from liability for ISPs. Nor do some favour the proposed "notice and notice" approach, preferring instead the "notice and takedown" model adopted in Australia and the United States. In these countries, ISPs are expected to block access to alleged infringing material after having been notified by the rights holder. But this notice and takedown model was adopted before the emergence of peer-to-peer file sharing applications and is not well-suited to manage such activities. In addition, a provision that would result in a "takedown" of material without sufficient due process may be inconsistent with Canada's legal framework. The bill would also clarify that information location tools, such as search engines (Google, Yahoo, etc.) would not be liable to pay damages for reproductions made in the course of providing such tools, unless they ignore a notice requesting the removal of alleged infringing material.
5. Photographs The Copyright Act currently treats photographers differently from other creators in terms of ownership and term of protection. The bill would harmonize the copyright treatment of photographers with that of other creators. The photographer would become the owner of the copyright, rather than the individual who commissions the photograph or portrait. It would not, however, be an infringement of copyright for the individual who has commissioned the work for personal purposes to make private, non-commercial use of that photograph or portrait, subject to any agreement to the contrary. The term of protection would be based on the life of the photographer plus 50 years after his/her death.
OTTAWA, June 12, 2008 Today the Government of Canada introduced long-overdue and much-needed amendments to the Copyright Act that will bring it in line with advances in technology and current international standards. "Our government has committed to ensuring Canada's copyright law is up to date, and today we are delivering by introducing this "made-in-Canada" bill that balances the interests of Canadians who use digital technology and those who create content," said the Honourable Jim Prentice, Minister of Industry. "It's a win-win approach because we're ensuring that Canadians can use digital technologies at home with their families, at work, or for educational and research purposes. We are also providing new rights and protections for Canadians who create the content and who want to better secure their work online." "These proposed amendments represent the first major reform of the Copyright Act in more than a decade. In that time, the Internet and other new technologies have radically changed the way we produce and access copyright material," said the Honourable Josie Verner, Minister of Canadian Heritage, Status of Women and Official Languages and Minister for La Francophonie. "Canadians are known around the world for their creativity and ingenuity, and many of their ideas are found in the books we read, the music we listen to, the movies we watch, and the new digital technology we use in our day-to-day lives. Our balanced copyright reform builds on these successes." Today's announcement follows the government's commitment in the 2007 Speech from the Throne to proceed with copyright reform. The proposed amendments include:
For more information, please visit the Copyright Reform Process website at www.ic.gc.ca/epic/site/crp-prda.nsf/en/home.
For further information (media only), please contact:
Deirdra McCracken
Press Secretary
Office of the Honourable Jim Prentice
Minister of Industry
613-995-9001
Media Relations
Industry Canada
613-943-2502
Dominic Gosselin
Press Secretary
Office of the Minister of Canadian Heritage, Status of Women and
Official Languages and Minister for La Francophonie
819-997-7788
Media Relations
Canadian Heritage
819-994-9101
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.
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:
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.
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.
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.
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.