Hot Topics In Copyright Reform: Canada’s Proposals

On March 24, 2005, the Canadian government announced its much-anticipated response to the May 12, 2004, Interim Report on Copyright Reform (the Interim Report) released by the Standing Committee on Canadian Heritage. The Interim Report had dealt with a number of hot topics in copyright law, including private copying, WIPO ratification, rights in photographic works, and liability of Internet Service Providers (ISPs) for copyright infringement.

One of the most important items in the response is the proposed implementation of certain provisions found in the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT), and the WIPO Performances and Phonograms Treaty (WPPT). These provisions include:

• the institution of a "making available" right, which is of particular interest to sound recording makers and performers, as it would provide the right to control the making available of their material on the Internet;
• the introduction of anti-circumvention legislation, which would make it an infringement of copyright either to circumvent technical protection measures (TPMs) for infringing purposes or to tamper with rights management information (RMI) to conceal infringement of copyright;
• the extension of moral rights to performers of fixed and live performances. Moral rights, which are currently enjoyed by authors of works, include the right to be associated with the work, and a right of artistic integrity to ensure that a work isn’t, on an objective basis, distorted, mutilated, or otherwise modified to the prejudice of the honour or reputation of the performer.

The federal government has also announced its proposed approach to dealing with the thorny issue of copyright liability for ISPs. The Interim Report had recommended that ISPs should be required to observe a "notice and take down" scheme, compliant with the Canadian Charter of Rights and Freedoms, in which an ISP would be required to take down content upon receiving an allegation of copyright infringement. However, the government will only support a "notice and notice" scheme, in which an ISP, upon receiving notice of an allegation of copyright infringement, would be required to forward the notice to the subscriber against which the allegation was made, while removal of the allegedly infringing material would only be required upon court order. However, the ISPs will be required to keep a record of relevant information relating to allegedly infringing materials.

The government has adopted the Interim Report recommendations that photographers be considered the author of their photograph(s), and the term of protection for photographic works would be the life of the author plus fifty years. However, the government proposal has carved out one exception with respect to commissioned photographs. While the photographer would still be the author, an individual commissioning a photograph for personal or domestic purposes would, subject to an agreement to the contrary, be able to make personal and non-commercial uses of that photograph.

The Interim Report had recommended amending the Copyright Act to allow for extended licensing of Internet material used for educational purposes, while recognizing that the responsible copyright collective should not apply a fee to "publicly available material," which was defined in the Interim Report as "material that is available on public Internet sites (sites not requiring subscriptions or passwords and for which there is no associated fee or technological protection measures which restrict access or use) and is accompanied by notice from the copyright owner explicitly consenting to the use of the material without prior payment or permission." However, the Canadian government has determined that further consultation is needed in this area, and no amendments relating to this issue will be implemented in the near future.

There are, however, some proposed reforms that will facilitate use of copyrighted material in education. Currently, for example, in order for a performance or display of copyright material to qualify for an educational exception to copyright infringement, the performance or display must be confined to the classroom as part of a lecture. A proposed amendment would also allow the broadcast of lectures, so that "remote" students would be able to benefit from viewing such materials. Also included is a proposal to allow electronic delivery of material that has been photocopied and provided to students pursuant to an educational institution's blanket licence with a collective society, without additional copyright liability.