Canada Introduces Copyright Law Reforms June 7, 2010

Canada has introduced legislation to create major reforms in its copyright law.  Bill C-32, the Copyright Modernization Act, had its first draft read in Parliament last week.  There is an excellent summary of it on the blog of Barry Sookman, one of Canada’s leading digital copyright attorneys.

A study of this bill should be especially interesting to copyright geeks in the US who want to get a glimpse into how other sophisticated copyright systems are evolving in response to the digital age.  (Sookman’s summary is especially worth reading because the bill itself is presented as a series of amendments to the existing Canadian copyright law rather than as a standalone document.  And let’s face it: Canada’s two-column bilingual format for legal documents is a little hard on readability.)

This bill shows that Canada, like many other technologically advanced countries, doesn’t currently have the same degree of complexity that the US has reached in copyright law.   Complexity can be a good or bad thing — with the latter more likely as a result of what Sookman aptly calls “unintended consequences.”

Part of what Canada is doing with C-32 is falling into  line with the two major international copyright treaties, the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).  Otherwise the draft legislation takes some ideas from US and French copyright laws and adds some innovations of its own.

WCT compliance in C-32 includes provisions criminalizing circumvention of DRM systems, like DMCA 1201 in the US, and allowing certain types of uses under Fair Dealing, such as parody and criticism.  At the same time, Canada is not looking to adopt a provision similar to the US 512 “notice and takedown” law, in which a content owner can ask a service provider (e.g., website or file-sharing service) to remove content from its network or service, and if the service provider does so, it escapes liability for infringement.  Canada instead proposes a “notice and notice” system, in which the service provider’s obligation is simply to pass the notice on to the uploader of the content.

C-32 also introduces a secondary liability provision, i.e., a set of principles by which people or companies can be held liable for other people’s actual infringements because they helped or benefited from them in some way.  The language in the Canadian bill resembles a roll-up of the US contributory and vicarious liability theories as well as the inducement theory established by the Supreme Court’s Grokster decision of 2005.

Perhaps the most controversial part of C-32 is its treatment of “Non-commercial user generated content” content.  This provision is intended to allow “mash-ups” and personal uses of content, such as background music that happens to be playing during your YouTube video of your kids.  Such content is given broad exceptions from infringement liability: essentially it need only pass the equivalent of the US fair use test of not having a negative effect on the market for the original work.  User-generated content that contains copyrighted material need not pass the “transformative” test commonly used here.

Canada has been grappling with copyright reform for years, and this draft of C-32 is likely to be far from the end of that process.  But it’s an interesting piece of legislation to look at in light of changes that need to take place to a system that becomes increasingly ill-suited to the digital age as time goes on.