On November 7, 2012, most provisions of the controversial Copyright Modernization Act (“CMA”) came into force. In this article, we briefly review some of the significant amendments implemented.
There are now broad prohibitions on tampering with or removing digital locks [also known as Digital Rights Management (DRM) or Technical Protection Measures (TPM)]. The prohibitions include circumventing a digital lock, offering or providing services for the purpose of circumvention and manufacturing, importing, distributing, offering, selling or renting a device or component designed for circumventing a digital lock.
The new provisions also prohibit removing or tampering with Rights Management Information (RMI), which is information used to identify the rights holders of an original work or to outline restrictions on use of the work.
Finally, the CMA has established the criminal offence of knowingly and for commercial purposes contravening any of the forgoing prohibitions. The maximum penalty is a fine not exceeding $1,000,000 or imprisonment for a term not exceeding five years, or both.
Reproduction for Private Purposes
Three (3) new “private purposes” have been introduced for which an individual is permitted to reproduce a work or any substantial part of it, if the individual has legally obtained the work (other than by borrowing or renting it).
Time Shifting: Individuals may record programs for time shifting so long as the recording is only kept as long as is reasonably necessary to listen to or view the program at a convenient time.
Backup Copies: Individuals may make a single backup copy of a work, but the backup copy must not be given away, sold or rented.
Format Shifting: Individuals may format shift by recording a copy of a work to another medium or device which they own or are authorized to use (such as a computer, iPod or MP3 player).
In each case, the owner of the work has been given greater freedom to enjoy the content of the work privately, while at the same time not increasing the circulation of the work to third parties.
These three “private purpose “exemptions do not apply to works protected by digital locks. The broad prohibition on circumventing a digital lock applies even where: (a) the work has been legally acquired; and (b) the copy would otherwise constitute “fair dealing”.
Fair dealing in Canada was historically a narrow exception to infringement when a copying was done for the purpose of private study, criticism or review and news reporting. The fair dealing exception has now been expanded to include copying for the purposes of education, parody, and satire.
A number of provisions have been implemented which are aimed at making copyrighted content more widely available for educational purposes and providing access to content in a technologically neutral manner.
Exemptions from infringement have been introduced to permit educational institutions to:
reproduce or display a work which is required for a test or examination if that work is not commercially available;
give a live performance of a work performed primarily by students, play a sound recording of a work, a performer’s performance or a cinematographic work on school premises and for educational purposes as long as the copy which is played is not an infringing copy; and
record a single copy of a news program and replay it to students for educational purposes.
Distance learning provisions have been implemented which allow an educational institution to provide lessons by means of telecommunication to students who are enrolled in a course. In addition, students who receive lessons by means of telecommunication are permitted to make a reproduction of the lessons for use during the course, but must destroy the reproductions within 30 days after receiving their final course evaluations.
Libraries and Archives
Provisions have been implemented which permit digital transmission of materials on an inter-library basis, thus increasing access to materials in library collections. A library can now provide a copy of a work in digital form to a person who has requested it through another library, so long as it takes measures to:
- prevent the recipient from making any reproduction of the digital copy;
- limit printing to a single copy;
- prevent further communication of the digital copy to anyone else; and
- limit use of the digital copy to five business days.
Any intermediate copies created to facilitate transmission to the intended recipient must be destroyed once the recipient has received the requested material.
Engravers, photographers and portraitists are now the deemed to be the first owners of copyright the works that they have created on commission. Even after they are paid to create a work, they will own copyright in that work unless there is a written agreement to the contrary. Clients should therefore be cautioned about the need for a formal assignment of copyright whenever they retain an independent contractor to take photographs for their signage, web site or promotional material.
Internet Service Provider (ISP) Liability
Although merely providing the means for telecommunication and reproduction of digital content is not an infringement of copyright, the new provisions implemented under the CMA provide that the operation of an Internet-based service primarily for the purpose of enabling acts of copyright infringement is itself an infringement of copyright.
Still to be proclaimed in force – ISP Notice & Notice Provision
Although not yet in force, the CMA will also require that if an ISP receives notice of copyright infringement allegations from a rights holder, the ISP must notify its subscriber who posted the allegedly infringing material and keep records that will enable the subscriber to be identified for the purpose of future litigation. Once the necessary regulations have been finalized, we expect these Notice & Notice provisions to be proclaimed to be in force.
While the controversial provisions respecting digital locks do grant rights holders significant new powers to enforce their copyright, many other provisions do broaden the rights of users. In particular, educational institutions and libraries have expanded powers that enable distance education and the wider circulation of their materials. The recognition that time shifting, format shifting and mash-ups do not infringe copyright also clears up previous uncertainty about the lawfulness of many now common consumer activities.
Disclaimer: The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.