Canada’s Copyright Modernization Act Comes Into Effect

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After receiving Royal Assent on June 29, 2012, the provisions of Bill C-11 came into force on November 7, 2012. Titled the Copyright Modernization Act, it has garnered the nickname “Canada’s SOPA” by some media outlets , referring to the highly contentious Stop Online Piracy Act bill introduced in the US House of Representatives that led to both physical and digital protests. Yet despite such bold claims, the Canadian amendment to the copyright act is a largely innocuous  piece of legislation that falls in line with its stated objectives.

Before delving into the major points of the bill and of its critics, it is important to note that an amendment has been a long time coming. The last one was in 1997. To put it into perspective: that was the year IBM’s Deep Blue defeated Garry Kasparov, and a good five years before any viable form of digital music became available for consumers. This means that for the better part of fifteen years, Canadians have been acting beyond the limitations of 20^th century technological terminology. Instead, in the void of proper legislation, the Supreme Court of Canada has set the precedents, with five of the most recent rulings made in July 2012. These rulings dealt with such issues as music royalties in downloadable video games, streaming music and tariffs for music accompanying cinematographic work, amongst others:

• Entertainment Software Association (ESA) v. Society of Composers, Authors and Music Publishers Canada (SOCAN), 2012 SCC 34
• Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada (SOCAN), 2012 SCC 35
• Society of Composers, Authors and Music Publishers of Canada (SOCAN) 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

Most of the decisions came against the associations seeking royalties, which has led to a recent counter-suit against the copyright collective SOCAN (Society of Composers, Authors and Music Publishers Canada) by major mobile service providers who are seeking $15 million for royalties paid for ringtones. Amongst other arguments, SOCAN has rightfully claimed that Bill C-11 will allow them to collect royalties from now on, under newly amended Section 2.4 subsection (1):

 (1.1) For the purposes of this Act, communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public.

Such amendments should come as no surprise to non-Canadians, as they serve to have align our copyright law with most other developed nations. This is one of the ways in which the new law meets one of its stated objectives: to meet international treaties on copyright administered through WIPO, notably the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). It has also adequately updated the Law with 21^st century terminology – sure to be outdated this time next month.

So why the controversy? This is decidedly not a Canadian SOPA, and clearly protects the idea of “fair use”:

29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it…

Major criticisms stem from two sources and over two differing issues: (i) from consumer advocates who are against the Bill C-11s provisions for “digital locks”, and (ii) from copyright collectives such as SOCAN who take issue with the bill’s educational provisions.

“Digital locks” allow media publishers to encrypt the content of their DVDs, CDs and downloadable files, effectively blocking users from extracting and copying. While the above-mentioned fair dealing provisions allow consumers to make copies for private use (such as copying a movie to an iPad, or recording a television show for later viewing), any circumvention of a “technological protection measure” as defined in section 41 is strictly prohibited. This allows copyright owners to circumvent the bill’s fair dealing provisions by essentially locking out users. It remains to be seen whether content distributors will widely adopt such measures. Taking to its extreme, it would akin to litigating against consumers who open up and modify components of their computers – though instead of a simple voided warranty, they would be subject to fines.

The second criticism also relates to fair dealing and comes from the opposite side of the table: the royalty collectors who fear educational institutions are being given free reign to copy. Schools no longer have to pay royalties or destroy copies of news programs used in classrooms, and can also freely use films and other media for educational purposes as long as the copies were obtained legally.

Post-SOPA, criticisms of Bill C-11 may appear to be reaching, but they do reflect legitimate fears. The government has attempted to tread a fine line between protecting the rights of copyright owners and the widespread practices of digital-age consumers. If anything, the greatest battles are ahead of us: will consumers be taken to task for circumventing digital locks to private use, and will educational institutions be fined for having undeclared film nights? Dr. Michael Geist, the Canada Research Chair of Internet and e-Commerce Law at University of Ottawa, recently pointed to the “real fears about where the bill might be headed”  if it gets in the hands of music production lobbyists. Others are more worried about the sections of C-11 not yet in force that may allow internet service providers to act as intermediaries between copyright owners looking to litigate against infringers on the internet.

By the time any such provisions come into affect, or the government gets around to the next round of amendments to the Copyright Act, we could well be dealing with wholly new challenges. For now, Bill C-11 has assured that Canada has caught up with the changing media landscape. Far from being an attack on freedom of speech or intellectual property, only continuing engagement with this new legislation will determine whether or not the Copyright Modernization Act is ready to deal with the problems of our age.