25.08.16

Reform of Copyright in Canada

Canada is one of the leading fronts of the war of both the copyright owners and the Internet. Despite the excellent copyright laws, the country always gets in the State Department's list of USTR301 for ‘support of piracy’. In 2012, a major reform of copyright was held for the first time in 15 years and adopted the so-called ‘law-and C’ in the creation of which participated actively in non-governmental organizations and experts. It has been the third attempt to reform copyright law, since 2006, and it was successful thanks to the greater involvement of society in the discussion of the law. Many legal experts believe Canadian law to be much better suited to the digital reality than the American DMCA. It is certainly understood, it didn't stop the American copyright owners: pressure has proceeded upon politicians. Read more about origin of сopyright.

The main provisions of the reform

• legalizing copying for private purposes, including records from the air and changing the format of copies (transcoding, creating digital copies of physical media, etc.);
• extension of the principle of free use of works (fair dealing, which is used with the terms in Canadian law).

Free use is possible in education, research, information purposes, to create parodies and satirical works, remixes and mashups, home video, as well as various forms of user-generated content (UGC), which was created by non-commercial purposes with the use of commercial music. 

Libraries can transfer files in formats they need (including any deal with digitization of works); the expansion of opportunities to work with ‘orphan’ works: Controller issues the licenses for a work with such works, if reasonable steps have been taken to identify the copyright owner; prohibition on circumvention of digital protection, except for unlocking phones and other devices, as well as for the protection of personal data, and content creation for people with disabilities; restriction imputed damages in cases of copyright infringement. 

The boundaries are set from $ 50 to $ 5,000 for non-commercial infringements for all the cases in a single case, and from $ 500 to $ 20,000 for each intellectual property for commercial infringers. The law contains provisions for the judges, on the basis of which, in most cases the fines should be appointed at the lower end; adoption the system of 'notice and notice' (notice and notice), which requires from service providers sending to violators a notice from the copyright owners.

'Notice and takedown' system

A system of 'notice and takedown' (notification and removal) works in the legislation of many countries, which were followed the example of the United States. In such a system, a service provider is obliged to respond to the requests of the copyright owners and to block or remove content that violates copyright or related rights.  In that case, the information intermediary gains immunity from prosecution for actions of users. The Canadian system of 'notice and notice' appeared from the existing self-regulatory principles. It involves immunity for bona fide information intermediaries by default. If provider receipts the notification from the copyright owners, he must report a user about the complaint. And the user can protest this decision.

Removal of content is not required by law, but it most often occurs in accordance with the user agreement of the service provider. If the provider does not send notifications of the copyright owners to users, it could be fined from $ 5,000 to 310,000. The copyright owners can sue the users and providers in a general way, if there is evidence that the main objective of the information mediator is a commercial ‘piracy’.

The second component of copyright reform in Canada became the Supreme Court decision of 2012 dealing with several cases such as: covering problems of free use, license assignments, and the problem what to consider as public reproduction. In particular, the photocopying of teaching materials in schools was recognized like free use; music in video games does not require the allocation of public performance, as well as the distribution of content in digital form (but deductions are required from streaming services); trials fragments of sound recordings in music services covered by free use for the purpose of study. This Court decisions introduced several new doctrines in the Canadian law.

The courts are obliged to take into account the broad interpretation of the principles of free use and users' rights.

Collective rights management organisations cannot claim to royalty fees if new distribution methods are appeared and they must take into account the principles of technological neutrality.

One of the purposes of intellectual property law is to provide access to the necessary materials for education, and this applies to both teachers and students.

Intellectual property law requires not only protection, but access to and dissemination of information.

Research activity in the context of the legislation is not limited to ‘the objectives of creation’, but it extends to the study of consumer or personal purposes. It is not the optional presence of a ‘transformative’ use for applying the principles of free use. The usage for personal purposes often fits under the principle of the free.

The practices that increase the sale of works cannot be considered like negative for the application of the legislation.

The concept of 'public' should be considered in the light of new technologies, technological neutrality and legal purposes. That fact that communication can be bilateral at the individual level, but it cannot be presented like 'public'.

So, Canada received one of the best doctrines of free use from existing in world practice. Despite the fact that the commercial free use still remains almost unique to the US, Canadian commercial free use of UGC (so-called ‘exception for YouTube’) is very important to protect the users' rights against the most widespread case of abuse of the copyright owners of DMCA and other similar laws.