New law accepts everyday activities

For the London Free Press – November 26, 2012

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You’re no longer breaking the law when you use your PVR to record your favourite TV show for later viewing.

Teachers are no longer infringing copyright when they print publicly available materials from the Internet to share with students.

Comedians are no longer violating the Copyright Act when they create a parody of a topical song or movie.

The much-anticipated, long-awaited Bill C-11 — Copyright Modernization Act — has finally become law in Canada. Though some aspects of the new act are controversial, the changes are for the most part welcome and long overdue.

The new act addresses everyday digital activities and legitimizes many of them under our copyright laws. The legislation aims to strike a balance between the interests of the creators of copyright and the rights of users.

Copyright protection is vital to the promotion of innovation. But at the same time, there are other interests best served by allowing users access to copyrighted material.

Chief among the important changes to Canada’s copyright regime is the expanded definition of “fair dealing.” Previously, the exception for “fair dealing” was limited to research, private study, news reporting, criticism and review. Now, fair dealing also includes reproduction of copyrighted materials for education, parody and satire purposes.

The new law also distinguishes between commercial and non-commercial copyright infringement. Statutory damages for non-commercial infringement are now smaller than for commercial infringement — capped at $20,000 for each infringed work for commercial purposes and $5,000 for all infringed works for non-­commercial purposes.

Of course copyright owners can still sue for actual damages that they can prove, but in many non-commercial situations, it may be hard to show actual damages exceeding the purchase price of the work.

Some of the controversy the bill generated has been the result of the digital lock provisions. It is illegal to break digital locks in most situations. A digital lock is put on content by the provider to prevent copying. It might, for example, stop you from copying a DVD or CD. That is despite the fact that the law gives consumers the explicit right to do things such as format shift a CD to a memory stick to play it on another device owned by the consumer. The digital lock rule essentially allows the publisher to take away some rights that the legislation grants.

All of the consumer-oriented provisions have come into force. These include the expansion of the fair dealing concept, the limit to statutory damages for non-commercial infringement and the exception for publicly available electronic materials used by educational institutions in non-commercial settings.

Provisions still to come include rules requiring Internet service provider to forward notices to subscribers accused of violating copyright. The ISP also has to maintain a detailed record of the notification in case court proceedings follow.

www.harrisonpensa.com/lawyers/david-canton

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