Canada Modernizes Copyright Legislation

by Bennett Jones LLP

Copyright reform in Canada has, after a decade of effort, finally moved towards implementation. On November 7, 2012, pursuant to an Order in Council, many provisions of the Copyright Modernization Act, SC 2012, c 20, came into force. Several other important provisions under the law, including the new Notice-and-Notice rules and provisions aimed at bringing Canada under the umbrella of two World Intellectual Property Organization (WIPO) treaties, will come into force at a later date.

The purpose of the Act is to modernize existing copyright legislation to account for the environment created due to the Internet and to align with the international standards contained in two WIPO treaties. The Act also aims to enhance the ability of copyright owners in the protection of content, especially in the digital context, while seeking to balance the interests of society and users and their right to fair use of legitimately acquired copyrighted material. Some important changes in the Act are discussed below.

Internet Service Providers

The Act clarifies that Internet Service Providers (ISPs) and search engines are exempt from liability under the Act when acting only as intermediaries in the communication of copyrighted works. An ISPs provision of Internet access or allowing users to download material that the user has personal control of will not amount to infringement as long as the ISP remains a conduit in that process. However, ISPs that knowingly facilitate copyright infringement may face criminal or civil penalties.

The Notice-and-Notice language in the Act, by contrast with the Notice-and-Take-Down regime in the US, provides for specific duties for Canadian ISPs when faced with allegations of hosting infringing content. This regime allows a copyright holder to inform an ISP that an ISP user may be infringing copyright. The ISP, in turn, must forward that notice to the user. Once the user has received notice pursuant to this system, their personal information may be released with a court order.

Updated Rights for Creators

The Act will bring Canadian copyright legislation in line with two WIPO Internet treaties, including giving all copyright owners a making available right. This right grants copyright holders certain control in how copyrighted material is released online. This provision is specifically aimed at the unauthorized sharing of works over peer-to-peer networks. Copyright owners can also look forward to distribution rights, which will allow the control of the first sale of every copy of their work.

The Act contains bolstered language regarding digital locks. Digital locks may be used by copyright holders to prevent unauthorized access or copying. The most controversial part of the legislation provides that, subject to very limited exceptions, it is illegal to circumvent or bypass digital locks used to prevent unauthorized access or copying of a work. A user's exercise of the fair dealing right is not an exception under this regime. It is also now illegal to manufacture, sell or distribute devices or software that is designed to break digital locks or offer services to do so.

Performers will now have moral rights in their performances, a right previously held only by authors. The term of protection under the Act has been extended for sound recordings for performers to 50 years following the publication of the performance, whereas under old legislation, the 50-year period began when a recording was made, rather than released.

Expanded User Rights

Reflecting that the copyright system seeks to balance between divergent policy needs of copyright owners and society and users, the Act provides clarity to legitimize certain everyday activities undertaken by consumers in a digital-age. Private non-commercial activities such as recording television to watch privately at an individual’s leisure; copying legitimately owned content, such as songs, to a personal music player or privately controlled computer storage; and backup copying and accessing of legally acquired software are, subject to some limitations, exempt from infringement and become user's rights.

The fair dealing exceptions are the most important of the user's rights and the purposes for which fair dealing may be conducted has been expanded to include satire, parody and education as fair uses of copyrighted materials along with research, private study and criticism.

In addition, the Act permits the use of legitimately acquired copyrighted material for users to create their own content. User generated mash-ups of clips of other works will constitute new works as long they are not for commercial purposes and do not prejudice the original copyright owner’s economic interests or moral rights.

Statutory Damages and Remedies

The Act changes the current statutory damages regime by introducing a distinction between statutory damages for private-use infringement and infringement for commercial purposes. Previously courts could award statutory damages of $500 to $20,000 per infringement, with no distinction made depending on the purpose of the infringement. The new Act significantly reduces possible statutory damages for individuals who infringe the Act for personal, non-commercial purposes. In such a case, the court may award between $100 and $5,000 in total damages. Infringement for commercial use carries the same range of fines ($500-$20,000 per infringement) as under the old legislation.


The Act entails important changes to the manner in which copyright law will be enforced in Canada. During the summer of 2012 the Supreme Court released five copyright decisions further defining the balance between the rights of copyright owners and users. With the coming into force of provisions of the Copyright Modernization Act, Parliament has added its voice and priorities to that effort to find the right balance for Canada. With many new provisions, all businesses should review their Internet-related activities in the context of the new Act and adjust practices into to find the best fit among these new provisions. Businesses should also continue to monitor the decisions of the Courts as the new provisions become further illuminated in the context of the likely litigation of many of the new rights.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bennett Jones LLP | Attorney Advertising

Written by:

Bennett Jones LLP

Bennett Jones LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.