Canada

Legal background

Scope and duration of copyright

Does copyright end immediately after the minimum period mandated by the Berne Convention? Yes
With some limited exceptions, such as anonymous and pseudonymous works, copyright exists in Canada for the life of the author plus an additional fifty years.
CR s. 6
Has a court or tribunal ever limited the exercise of IP rights under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders? No
The Competition Bureau issued its Intellectual Property Enforcement Guidelines in 2003 (IPEG). The IPEG notes that the use of copyright and other intellectual property rights can be challenged under the Competition Act in multiple ways. The criminal offences are: conspiracy (s. 45); bid-rigging (s. 47); price maintenance (s. 61) and some forms of misleading advertising and related deceptive marketing practices (ss. 52 – 55). The reviewable matters are: abuse of dominance (s. 79); exclusive dealing, tied selling and market restriction (s. 77); refusal to deal (s. 75); mergers (s. 92); and misleading advertising and related deceptive practices (. 74). The Competition Bureau also has oversight and enforcement authority over the “mere exercise” of intellectual property rights. Through s. 32 of the Competition Act, the Competition Bureau reserves the right to intervene in the exercise of intellectual property rights in the extreme cases of anti-competitive behaviours resulting from the exercise of intellectual property monopoly. Enforcement is limited to the misuse of an IPR that has the effect of restraining trade or other similar competitive harm. However, in one hundred years after being introduced into law (in some form), s. 32 has not yet been examined on its merits. The Copyright Act was amended in 1998 to specifically exempt the Copyright Board’s tariff set for copyright collective societies in Canada from the Competition Law provisions on conspiracy (CO s.45). The Copyright Act also allows the Commissioner of Competition to oversee the royalties assigned under a licensing agreement that is formed between users and a collective society (i.e.: a licensing agreement that does not go through the tariff-setting procedures of the Copyright Board of Canada). Where the Commissioner of the Competition finds the licence to be contrary to the public interest, s/he can intervene by referring the agreement to the Copyright Board for oversight. If passed, the Copyright Act amendment ( Bill C-11) would introduce anti-circumvention provisions to protect TPMs even where the circumvention is for the fair dealing with a legally acquired copyright. This protection for TPMs may trigger Competition Law enforcement. The only institutions at the moment that are legally allowed to circumvent these TPMs are libraries, archives or museums or an educational institution, A good and detailed explanation of this issue is available in Alex Cameron and Robert Tomkowicz’s article.
IPEG; CO; Cameron; CR at s. 70.5(3).
Has a court or tribunal ever limited the exercise of IP rights pursuant to a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? No
The relationship between the Canadian Charter of Rights and Freedoms and copyright comes up mainly in cases where, as a defence to copyright infringement, parties have tried to assert that intellectual property must be interpreted in light of Charter values, namely, the right to freedom of expression. This line of argument has so far been unsuccessful. The courts have not extended the Charter’s guarantee to freedom of expression (s. 2(b)) to support the infringing use of copyrighted property. Freedom of expression is thus not available as a defence to copyright infringement.
Michelin; Canwest; BCAA; Charter s. 2(b)
Can databases of non-original material be reproduced without infringing a copyright or sui generis database right? No
For copyright to attach in Canada, a work must be an original work of literary, dramatic, musical and artistic work, or a compilation thereof. Compilations are defined as arrangements of works or data. Originality in Canada requires some independent effort and labour on the part of the creator, that is neither mechanical, routine nor trivial. A database, like any compilation of non-original material, is subject to the same standard of originality for copyright to attach. If the arrangement of the database is sufficiently original, the compilation will be protected by copyright. However, the underlying, non-original material will not be protected.
CR s. 2; Tele-direct
Are rights holders prohibited from excluding user rights under copyright law? In part
The Supreme Court stated in CCH that the five grounds of fair dealing are always available for users to assert in their defence. However, users are free to contract out of their copyright rights. The Copyright Act provides authors and owners with moral and economic rights. Moral rights are not assignable but may be waived by contract, under the CR 14.1(2). Economic rights, however, may be both assigned and waived. Where there is a contract between a rightsholder and user(s), the effects of a breach of the contract on creators' remedies is unsettled in Canadian law. It is unclear whether the breach of such a contract would be treated as a breach of contract or as an infringement of copyright.
CCH; CR s. 14.1(2).
Is computer software excluded from the scope of patentable subject matter? In part
In Canada, patents are only available for computer programs that involve more than a method of calculation (Schlumberger). However, computer programs that do mathematical calculations that are incorporated into a system as whole may be protected by patent law since the entire system may be patentable. Computer programs count as “literary works” for the purpose of the Copyright Act. Computer software programs that are used to implement business methods, such as Amazon’s one-click purchase system, are not yet patentable in Canada. The patentability of business method software is currently being litigated in Canada so the legal status of this software may be changing.
CR s. 2 (Definition of “literary work”); Schlumberger

Freedoms to access and use

By Home UsersIs there any general user right that is based on a set of balancing criteria, such as a "fair use" right? Yes
In CCH, the Supreme Court of Canada clearly stated that the Copyright Act represents a balance of users' and rightsholders' rights. The balance is achieved through the “fair dealing” provisions in the Copyright Act. The Act states that it is fair dealing with works for the five purposes of research, private study, criticism, news reporting and review do not infringe copyright. The CR does not define what is “fair” for the purposes of fair dealing. Therefore, the Supreme Court in CCH set out six factors to assess in determining if a dealing qualifies as fair. These are: a) the purpose of the dealing; b) the character of the dealing; c) the amount of the dealing; d) alternatives to the dealing; e) the nature of the work; and f) the effect of the dealing on the work. CCH also makes explicit that fair dealing is more properly conceived of as a “user's right” than strictly as a defence to copyright infringement. Fair dealing is always available to users, even where there are other available exceptions to infringement such as the specific provisions for libraries, museums and archives. There is a paucity of case law treating fair dealing. However, in late 2011, The Supreme Court heard five cases focused on copyright and fairdealing. These cases included the Entertainment Software Association of Canada (whether downloading a video game involves communication to the public of the music in the game), the large telcos (music downloads), Bell v. SOCAN (song previews as fair dealing); Access Copyright; and copying in K - 12 schools. The decisions on these five cases have yet to be decided by the SCC. Currently, the new proposed Bill C-11, An Act to Amend the Copyright Act, would expand fair dealing to include exemptions for the purposes of education, parody and satire. At the same time, the anti-circumvention provisions in the Bill - that make it an infringement of copyright to circumvent TPMs - would apply to all acts, even for those uses of works that would be fair dealing.
CR s. 29; CCH; SOCAN Tariff 22; Bill c-11.
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? In part
Currently, time shifting is an infringement of copyright, and some format shifting is infringing as well. However, there is an exception for the private copying, for personal use, of recorded musical works that are otherwise non-infringing. It is non-infringing because rightsholders are remunerated for the copies through the Private Copying Tariff, which the Canadian Private Copying Collective (CPCC) administers. The Private Copying Tariff is also known as the blank media levy. Under this levy, individuals need not seek permission to make copies, rather the Copyright Act establishes a levy on manufacturers and importers of prescribed blank audio-recording media. Ultimately, the cost of the levy is incorporated into the cost to consumers of these media. The CPCC then redistributes the royalties collected to the rightsholders. The media currently covered under the Private Copying Tariff are: CD-R, CD-RW, CD-R Audio, CD-RW Audio and the tariff is at $0.29 (Can) per unit. In other words, copying recorded music onto other media is infringing copyright. In the case of the CPCC v. CSMA, the Federal Court of Canada has ruled that the permanently embedded memory in digital audio recorders cannot be levied under the Private Copying Tariff. Therefore, iPods and Mp3 players are not subject to the levy. Some copyright reformers are proposing legislative amendments to overturn this decision and thereby bring digital audio recorders such as the iPod under the scope of the Private Copying Tariff. Bill c-11 includes provisions that would allow, in certain conditions, individuals to format and time shift for non-commercial purposes. The format shifting provisions would give consumers the right to reproduce for private purposes a work so long as source copy was legally obtained; the individual does not give the copy away; the copy is not made onto a medium covered by private copying levy and that the format shifting doesn’t involve circumventing a TPM. The time shifting provisions would allow individuals to fix a communications signal or reproduce a work for the purpose of privately viewing the works at a later time if: the signal is received legally; only one recording is made; the recording is used for private purposes and not given away. Time-shifting is nonetheless infringing where it involves the circumvention of a TPM. Bill c-11 would not include digital memory permanently embedded in audio recorders to the scope of the Private Copying Tariff.
CR s. 80.1; PCT; CPCC v. CSMA
Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? In part
It is an infringement of copyright to reproduce a work in original, or modified, format, without permission of the rightsholder. This is the essence of copyright and does not matter whether the copy is for personal use or another use. There is a limited exception for copying computer programs for backup purposes. An individual can make a single copy of the computer programs she owns where the individual can show that the copy or backup is: necessary for the compatibility of the program with a computer; solely for the individuals’ use and where the copy will be destroyed if the individual ceases to own the computer program. However, if Bill C-11 is passed, it will be permissible for an individual to reproduce a work if the copy of the work is not an infringing copy; the copy of the work, was obtained legally, excluding borrowing it or renting it, and the individual owns or is authorized to use the medium or device on which it is reproduced; the work is not circumvented; the reproduction is not given away; and the reproduction is used only for private purposes.
CR ss. 3, 15, 18, 30.6
Can works be communicated to a limited public (for example, family and friends) without infringing copyright? No
The Copyright Act grants creators the right to communicate works to the public by telecommunication and the right to public performance and the right to authorize such acts. These exclusive rights exist regardless of the size or scope of the “public” to whom works are communicated.
CR s. 3.
For EducationMay students copy works for private research or study? Yes
The fair dealing exception allows for teachers and students to make copies for the purpose of private study and research. However, this does not permit the copying of entire works, but only what is a ‘fair’ portion them in context. The copyright collective society that administers the reprographic reproduction of works, called “Access Copyright,” allows teachers and students to make copies of up to 20% of a work. Bill c-11 would add education to the grounds for the fair dealing exception. Like all the other fair dealing exceptions, the uses are still subject to the requirement that the dealing be ‘fair.’ This would not allow the copying of entire works either, but would require an analysis of the dealing on the 6 fairness factors as outlined in CCH.
CR s. 29; CCH; Bill c-11
Does any such research and study provision cover distance and online education? In part
Distance and online education institutions can avail themselves of some of the exemptions for educational institutions and of the fair dealing research or private study exceptions (to the extent that their uses are fair). In CCH, The Supreme Court of Canada decided that faxing (a tool of distance education) copies of legal decisions and summaries to members of the legal profession was fair dealing for the purpose of research or private study. Most of the materials used by distance education institutions is obtained legally under collective licences provided by Access Copyright, the collective society that manages the reprographic copyright in Canada. Most of the specific exceptions for educational institutions are available only where the acts are done “on the premises” of the institution, or where the copies are only kept for up to thirty days, so these exceptions are generally unavailable to distance education institutions.
CR ss. 29.4 – 30; CCH.
May translations of works be made for educational purposes? In part
The Copyright Act specifically allows educational institutions to translate a work for a test or examination. Also exempted are translations into languages and formats suitable for people with disabilities.
CR s. 29.4; CR s. 32(1).
May educators copy works for use in the classroom? In part
Educational institutions benefit from certain exceptions from infringement where the copies are used on the premises of the institution. Specifically, the exceptions are for: i) making manual copies or copies for projection in class of works; ii) the live performance of works, performance in public of a sound recording or performer’s performance in a sound recording; iii) and making a copy a broadcast or communication to the public by telecommunication and performing it to students within a year of the telecommunication. Some conditions apply that mainly restrict the type of reproduction, the location of distribution/presentation and the duration for which the educational institution may retain the copy. For example, the exemption for making manual copies and copies for projection is not available where the work is commercially available. Also, educational institutions must pay the royalties to reproduce sound recordings, broadcasts and communications to the public by telecommunication and destroy the copies made within a certain time. The extent to which copying in schools can be considered fair dealing for the purposes of research and/or private study is currently being litigated in Canada. Bill C-11 would extend the fair dealing exception to education, clarifying the fact that fair copying for instructional purposes is not an infringement of copyright. These provisions could change, because the SCC listened to Canadian educational groups and Copyright Access, where there was considerable focus on the extent to which the fair dealing categories of research and private study could include some element of classroom instruction. That discussion referenced the exclusion of a general education exception, which is not found in the current law but is included in Bill C-11.
CR ss. 29.4 - 30; CR s. 32.2(3); CCH; Bill c-11.
OnlineAre temporary or transient copies, incidental to a lawful use, excepted from copyright? In part
There is no general exception that provides for the creation of temporary or transient copies. But Bill C-11 includes a provision that states: it is not an infringement of copyright to make a reproduction of a work or other subject-matter if, the reproduction forms an essential part of a technological process; the reproduction’s only purpose is to facilitate a use that is not an infringement of copyright; and the reproduction exists only for the duration of the technological process. Broadcasters do have the benefit of an exemption for ephemeral recordings of their broadcasts that include performer’s performance or work, other than a cinematographic work, that is performed live or a sound recording that is performed at the same time as the performer’s performance or work. Whether a copy was made for permanent or transient use is a factor available to the court to consider when deciding whether a particular use was a ‘fair dealing.’ A court will be more likely to find that the dealing was fair when a copy was made and then destroyed after use.
CR s. 30.8; CCH; Bill C-11.
Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network? Yes
The Copyright Act specifically limits the liability of telecommunications providers from infringement insofar as they are simply the carriers of the content and otherwise exert no control over the content. The Supreme Court noted in the leading case of SOCAN v. CAIP, that an ISP may be liable for authorizing copyright infringement where the ISP acted more than as a mere conduit for communications and in fact approved of the communication of infringing content. In order to preserve this immunity from liability, Bill C-11 would introduce a 'notice and notice' regime, whereby ISPs will pass on to web hosts/users any notifications of infringing content the ISPs receive from rightsholders.
CR s. 2.4(1)(b); SOCAN v. CAIP; Bill c-11.
Is Internet access free of ISP filtering or monitoring for potential copyright-infringements? In part
There is no positive obligation on ISPs to monitor Internet usage for copyright infringement. However, ISPs are able to use reasonable Internet Traffic Management Practices, including the slowing down of P2P traffic that may easily be used to communicate infringing copies of works. In addition, if the new Bill C-30, a Bill on “Lawful Access” is passed, ISPs will be required to monitor consumer activities online more stringently. Moreover, there is a provision that opens the door to police approaching ISPs and asking them to retain data on specified subscribers or to turn over any subscriber information - including emails or web surfing activities - without a warrant. ISPs can refuse, but this provision is designed to remove any legal concerns the ISP might have in doing so, since it grants full criminal and civil immunity for the disclosures.The Canadian Radio-television Telecommmunications Commission has regulatory authority over ISPs and in its Net Neutrality decision, set out a framework for assessing the reasonableness of the ITMPs. CRTC findings are binding on the ISPs.
Net Neutrality Decision; Bill C-11.
By content creatorsIs there any protection for consumers who non-commercially remix or mash up copyright works? No
The unauthorized creation of remixes and mashups of copyrighted works is an infringement of both the economic and moral rights of the rightsholders. This is the case whether the use is commercial or not. Bill c-11 would create an exemption for individuals’ creation of non-commercial mashups where the source copies are non-infringing.
Bill c-11.
May computer software be reproduced or transformed for the purpose of reverse-engineering interoperable software? Yes
It is not an infringement of copyright for individuals to make a single copy of a computer program, or adapt, modify or translate the computer program into another computer language where such a copy is necessary for the compatibility of the program with a computer. This copy must be limited to the individual’s personal use and must be destroyed when done with the copy.
CR s. 30.6.
Is the incidental inclusion of a work in other material permitted? In part
Incidental inclusion of copyrighted works in another work is not an infringement of copyright where the inclusion is not deliberate.
CR. S. 30.7
Is there are copyright exception for parody or satire? No
There is currently no copyright exception for parody or satire in the Copyright Act. Attempts to advance the law in this area through litigation have been generally unsuccessful. However, Bill c-11 proposes to add parody and satire to the fair dealing provisions.
Michelin; Canwest; Bill c-11.
By the pressIs there a copyright exception for the news of the day? No
Only the expression and arrangement of facts can be copyrighted, and not the underlying fact. Copying for the purposes of news reporting is a ground for the fair dealing exception, if certain conditions are met. So, copying may be done to the extent that it is fair and that the following information is given: the source; name of the author/performer/maker of sound recording or broadcaster.
CR s. 29.2.
May copyright material be reproduced for the purposes of review and criticism? Yes
Copying for the purposes of review and criticism is a ground for the fair dealing exception, if certain conditions are met. So, copying may be done to the extent that it is fair and that the following information is given: the source; name of the author/performer/maker of sound recording or broadcaster.
CR s. 29.1.
May quotations be used for any purpose? In part
The Copyright Act recognizes the moral rights of authors which includes the right to be associated with works, as well as the right to remain anonymous. So, subject to proper attribution, quotations may be made if they preserve the appearance and attribution of the quote. Aside from breaching the moral rights of the author, the lack of proper attribution may arguably fall under the under the common law tort of passing off. Furthermore, in order to use quotations under the fair dealing grounds, proper attribution is a condition of the use being 'fair.'
CR s. 14.
By LibrariesMay libraries copy works if they cannot reasonably be obtained commercially? Yes
There is an exception to infringement for libraries, archives and museums to make copies of works – whether published or not - that are either: rare, in an obsolete format, in need of restoration; deteriorating, or can be damaged by viewing. However, where there is a commercially available copy of these types of work, the library cannot avail itself of the above exception.
CR s. 30.1.
May librarians copy works for users for the purpose of research or study? Yes
Libraries, archives and museums (and their employees) may avail themselves of the fair dealing exceptions for research and private study as well. Also, libraries may make a single copy of a scholarly, newspaper or periodical work that is at least one year old, upon request, where the library is satisfied that the copy will only be used for research or private study. This exception is not available in respect of a work of fiction, poetry or a dramatical or musical work.
CR s. 30.2(1-2).
Are libraries allowed to make preservation or archive copies of materials in their collections? Yes
There is an exception to infringement for libraries, archives and museums to make copies of for the purpose of internal record-keeping and cataloguing.
CR s. 30.1(1)(d).
Can lending libraries operate without incurring public lending rights fees to copyright owners?
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? Yes
Except for the making of a large-print book, people with perceptual disabilities, or a non-profit organization acting on their behalf, may request from an individual to make copies of works, sound recordings, performances or other translations and adaptations into an appropriate language. These are non-infringing copies, except where the work or sound recording is commercially available in an appropriate form for the person who needs it.
CR s. 32.1.
In public affairsAre laws excluded from copyright? No
Laws are considered to be Crown copyright. However, a Federal regulation has indefinitely licensed laws, administrative decisions, and tribunal decisions to the public. The license is subject only to the condition that due diligence is exercised in ensuring the accuracy of the reproduction and if it is not represented as an official version. The government retains the moral rights.
RFLO.
Are other governmental works either excluded from copyright, or routinely shared under permissive licences? No
For works prepared or published under the direction of the Queen or Government, a copyright is granted to the Queen, for the remaining time in the calendar year of publication plus fifty years.
CR s. 12.
Are the results of publicly funded research required to be published under an open access licence? No

Freedoms to share and transfer

Do copyright owners have the right to release their works to the public domain, without any limitation on how those works may be used? Yes
Since copyright arises in Canada without any formality such as registration, there is no requirement for specific formalities in order to release a work to the public domain.
Can public domain works be used without the need for any payment or registration of the use? Yes
Does the law make special provision for the legal use of orphaned works? Yes
The Copyright Act sets out a system for unlocateable owners that allows for the licensing of orphan works at the Copyright Board of Canada. The Copyright Board will issue licenses to publish, perform or broadcast works of unlocateable creators where the applicant shows that she has taken all reasonable measures to locate the author without success. The Board will then grant a non-exclusive, payment for which is made to the relevant collective society. If the rightsholder does not come forward within five years, the Board will allow the collective society to put the payment towards its general revenue.
CR s. 77(1)-(3).
Is parallel importation of copyright works permitted? No
Under s. 27(2) of the Copyright Act, it is an infringement of copyright to import into Canada non-infringing copies of works (in the source jurisdiction) that the importer knows or should have known would infringe copyright if they had been made in Canada. This is also referred to as ‘secondary infringement’ and the Supreme Court in Euro-Excellence stated that s. 27(2) first requires the presence of primary infringement. The leading case on parallel importation in Canada, Euro-Excellence, makes clear that liability for s. 27(2) will be found regardless of how 'incidental' the copyrighted work is to the article being imported. So, importers of chocolate bars bearing a copyright symbol on the packaging, where the symbol is or would be infringing in Canada, will still be caught by s. 27(2). At the request of rightsholders, Customs officials may seize the imported items at the border. S. 27.2 of the Copyright Act makes special provisions for the parallel importation of books into Canada. A Canadian bookseller who is the exclusive distributor of a work in Canada can stop the importation into Canada of the works that fall under their sole distribution right. This is done by notifying the importer of the fact that the importer’s wares fall under the exclusive distribution agreement. The details of this regime and the formalities of the required notice are outlined in the Book Importation Regulations.
CR s. 27(2); Euro-Excellence; CR s. 27.2; Book Importation Regulations
Are there national programmes or policies to promote the use, production or dissemination of openly-licensed material such as free and open source software or open educational resources? No
There are only private organizations that promote the creation and use of open-source materials in Canada, such as Creative Commons Canada and Open Medicine.
Are there national programmes or policies that specify or promote the use of open document formats? No

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? The Copyright Act distinguishes between civil and criminal remedies. The civil damages for individuals’ infringement is as follows: The court may order statutory damages or the rightsholder may elect to recover compensatory damages and an accounting of profits on each infringement instead of the statutory damages award. The maximum amount of statutory damages is a sum of not less than $500 or more than $20,000. Damages and profits are a calculation of the actual damages of the infringement plus any profits that the infringer accrued from the infringement can be added above the damages. The criminal penalty for individuals’ infringement are as follows: The maximum amount of damages on summary conviction is a fine not exceeding twenty-five thousand dollars or incarceration up six months or to both. The maximum amount of statutory damages on conviction on indictment is a fine of up to $1,000,000 or incarceration up to five years, or both. Bill c-11 would limit the liability for non-commercial infringements to between $100 to $5000 for all infringements. CR s. 35(1), 38 and 42; Bill c-11
What is the maximum penalty for copyright infringement for a corporation? As legal persons, corporations are liable for the same penalties as any other person who infringers; the CR does not differentiate between individuals and corporations. It is notable that the CR limits recovery to a single award from any two or more infringers who are jointly and severally liable for an infringement. The Plaintiff thus cannot separately sue all the officers of a corporation for a single infringement. CR s. 38.1(2)
Is innocent infringement of IP treated differently by the law? Yes
Where the defendant can prove that, at the date of infringement, she was not aware and had no reasonable ground to suspect that her act was infringing, the Plaintiff is only entitled to an injunction to stop further infringement. However, this limitation on liability is available only where a copyright is not registered. The court has further discretion to treat innocent infringers differently by taking into account the good or bad faith of the infringer when determining the quantum of damages. The sliding scale of statutory damages allows the court further flexibility to reduce the quantum of damages on the basis of the defendant’s innocence.
CR s. 39; 38. 1(2 and 5)
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for legal purposes? Yes
Yes, for copyright-neutral technologies, one is permitted to create and distribute circumvention technologies. However, this will not be the case where the technology is used primarily for causing acts of infringement. In this case the maker of the technology may be liable for authorizing infringement. Bill c-11 would make it an infringement of copyright to circumvent a TPM.
Bill c-11.
Is the use of such devices by consumers or intermediaries permitted in the legal exercise of user rights? Yes
Currently, circumvention of a TPM is not an infringement of copyright.
Does national copyright or consumer protection law require that the effect of TPMs distributed with copyright works be disclosed to consumers? In part
There is no positive obligation to disclose the inclusion of TPMs on works that users legally acquire, except where the TPM collects users' personal information. This is protected by the Canadian private-sector privacy legislation, the Personal Information Protection and Electronic Documents Act.
PIPEDA.
Are there cases in which the availability of injunctive relief for IP infringement is limited by the law on public policy grounds? In part
The adoption of a doctrine of IP misuse is often considered in Canada although it has not yet been adopted at common law, nor is it a statutory prohibition. There is no individual liability for "copyright misuse." So this policy is not as effective as it could be for consumers. The doctrine of IP misuse derives from the equitable principle of approaching the court for relief only with "clean hands." This is considered when requesting injunctive relief which is an equitable remedy. This means that the court can exercise its discretion to deny plaintiffs remedies where their behaviour or motivations in making claims are inappropriate, vexatious or unfounded. For example, the doctrine may arise where a patent holder attempts to extend its monopoly over profits from a creation by claiming a copyright on the creation near the end of the patent. Another example might be the where the holder of a non-exclusive licence alleges copyright infringement against a user. IP misuse can have anti-competitive and abusive effects for competitors. Litigation in this area may arise in the future that will outline the parameters of the doctrine of misuse in Canada.
CO s. 32.1; Euro-Excellence.
Does the law protect a user's Internet access from being suspended for alleged copyright infringement, except after a hearing in court? Yes
There is no requirement in the Copyright Act for ISPs to pass on to users notifications of the allegations of infringement. However, the Supreme Court stated in the case of SOCAN v. CAIP that failure to pass on such notification might be indicative that the ISP is acting as more than a mere conduit and therefore may be liable for authorizing the acts of copyright infringement of its customers. Bill c-11 would formally set up this "notice and notice" regime in law. The cost of this regime will ultimately be passed on to consumers.
SOCAN v. CAIP
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? No
Even a single infringement can trigger criminal sanction. For instance, there is a criminal prohibition on unauthorized recording (‘camcording’) of a public performance (categorized under “mischief” in the Criminal Code of Canada).
CCC s. 432(1); CR s. 42.1(f -g)
Are damages for copyright infringement limited to the loss sustained, rather than a pre-established or statutory damages award? No
The Copyright Act provides for different remedies – compensatory, statutory and punitive. The quantum of damages for copyright infringement may be made according to the loss sustained, and/or according to the profits accrued to the person who infringed. Otherwise, the Act specifies the range of the quantum of damages that courts may award.
Is there provision to penalise the wrongful allegation of copyright infringement? In part
Some of the remedies for copyright infringement are equitable remedies, like interlocutory injunctions. The claimant must come to the court with clean hands and act appropriately (not unconscionably or vexatiously) otherwise the claimant may be penalized for starting proceedings in this manner. The claimant will have to pay any damages the defendant incurs during the trial of an injunction ultimately decided against the claimant.
Is there provision to penalise the obstruction of consumers' exercise of user rights? No
Does the patent system allow for pre-grant opposition?

Recent or upcoming changes

Summary of position

 

Canada’s copyright laws are in a third phase of amendment that has been ongoing since the 1980s. Copyright is an area of law that is gaining increasing attention in the public eye. Canada’s laws are compliant with the Berne Convention but have faced pressure from the United States - including placement on the USTR Special 301 list - for new digital reforms. The external pressure to amend Canadian copyright in accordance with US standards found in the Digital Millennium Copyright Act (DMCA) and the Anti-Counterfeiting Trade Agreement(ACTA) have met with resistance in the Parliament as well as in public opinion. Canada also faces pressure to implement the two WIPO Internet Treaties. Canada signed them in 1997 but has yet to incorporate the obligations into the Copyright Act.

Three bills that sought to introduce digital copyright reforms died on the order paper due to national elections. Moreover, a 2009 public consultation on copyright and conducted by the federal government generated over 8,000 responses. This unprecedented number signals deepening public concern over proposed restrictions in copyright law that would widely affect Canadians’ use of the Internet, art and digital media along the lines of the DMCA, and now ACTA. A citizen’s group, Fair Copyright for Canada, began to advocate for the public interest in Copyright reform and this quickly grew into a national presence with at least twenty-five chapters.

Copyright policy is a shared portfolio of the Departments of Industry and Canadian Heritage. Jointly in the summer of 2011, the Ministers tabled Bill C-11, An Act to Amend the Copyright Act (this is the same as Bill C-32 that died on the order paper because of a national election in May 2011). The Bill is currently in its second reading and is being debated extensively in legislative committee. Bill C-11 does expand the scope of user rights in some areas, such as expanding the fair dealing provisions to education and parody, as well as giving more scope to create non-commercial, derivative works. However, the expansion of user rights is severely undercut by new provisions that would make it an infringement of copyright to circumvent TPMs. The exceptions for permissible circumvention are limited. These provisions are widely criticized as favouring rightsholders by protecting their works even against legitimate and fair uses of copyrighted works, inherent in the Copyright Act as users’ rights. Therefore, consumers may not benefit in the end from a more balanced and modern Copyright Act after all, should Bill C-11 pass in its current form.

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