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The good and the bad of the new copyright law

by Victoria Owen

Canada’s copyright law has undergone significant change recently. After years of review, consultation and public engagement Parliament passed Bill C-11, the Copyright Modernization Act in June 2012.  Bill C-11 introduced some positive changes, such as technological neutrality, a provision for user-generated content, the ability to time and format shift, and the expansion of fair dealing to include education, parody and satire. However the adoption of digital lock protection in Canadian copyright law is a massive and profound loss for all Canadians and eviscerates many of the gains achieved in the bill.

Canadians were very active in the long run-up to the new legislation and many of the new provisions resulted from activism from consumers, educators, librarians, and the communications industry. Consumers gained the right to format shift content for use on a variety of personal devices and to copy and modify works for non-commercial uses. Bill C-11 added a limited liability to a maximum of $5,000 in statutory damages for non-commercial infringement, added public performances for schools, digital interlibrary loans, and alternate format reproduction for people with perceptual disabilities. New fair dealing exceptions added making copies for educational uses and for the purposes of parody and satire to the earlier list of exceptions for the purposes of research, private study, criticism, review and news reporting.

These important and laudable additions to the statutory rights of Canadians that enable the dissemination of works may be gutted by the bill’s anti-circumvention provision for technological protection measures if the regulations exclude authorized uses. Many Canadians proposed a viable solution that exempted non-infringing uses from the digital locks provision. This vociferously supported approach to statutory rights was not directly addressed in the bill but may yet be included in regulations or in interpretation. If. Digital locks cannot be removed, bypassed or deactivatedCanadians will have lost significant ground. They can prevent Canadians from exercising their statutory rights otherwise protected under the Copyright Act. Without the ability to bypass locks Canada’s information policy would no longer be a nuanced matter of law but an off/on toggle that has been effectively handed over to the content industry. Without a circumvention provision Canadians may not use any of the new users’ rights gained in Bill C-11 and further, lose the ability to exercise rights gained in earlier legislation.

Bill C-11 is new and its full implications will become known as we apply the law and look to any regulations and interpretations that clarify it.  As time and space permit, this space will provide an examination of various aspects of the Copyright Act that may be of interest to our community. 

Victoria Owen is UTSC's Head Librarian.


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