A global consumer network on Access to Knowledge and communications issues
Home › Consumers International IP Watchlist Report 2010 › Appendix A: Country reports

Canada

Fri, 05/03/2010 - 11:55 — Michael Geist

Legal background

Scope and duration of copyright

Is the period of protection of each type of copyright work limited to the minimum duration mandated by the Berne Convention? YES
CR s. 6
Must a work be fixed in some material form before copyright attaches? YES
Is the exercise of copyright subject to competition law, for example by compulsory licensing or regulation of royalties in the case of copyright holders who misuse their monopoly power? LIMITED
The Act contains a limitation on the royalties assigned under a collective licensing agreement that the Commissioner of the Competition Act finds contrary to the public interest. The Commissioner may refer the agreement to the Copyright Board. However, the Competition Bureau has increasingly taken on the policing of IP laws, in particular relating to TPM’s and anti-circumvention technologies. The last two proposed copyright law reforms (C-60 and C-61) both would make anti-circumvention provisions. The Competition Act directly impugns the misuse of IP having the effect of restraint of trade or other similar competitive harm.		 CR s. 70.5(5); CO, s. 32(1)-(2)
Is the exercise of copyright subject to compliance with a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? NO
This issue has been brought to trial twice, but in both instances the courts have not extended the Charter’s guarantee to freedom of expression to override copyright property. However, the most recent of these cases, regarding the defence of freedom of expression (Charter of Rights and Freedoms s. 2(b)), a Canwest newspaper parody, is currently under appeal.		 Michelin; Canwest
Does the compilation of a database of non-original material fall outside the scope of copyright? NO
There is no exception for compilations of non-original material in the Copyright Act.
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them? LIMITED
The Copyright Act provides authors and owners with moral and economic rights. Moral rights which are not assignable but may be waived by contract, under the CR 14.1(2). Economic rights, however, may be assigned and waived. So, parties are free to override copyright exceptions and limitations via contract on economic rights.		 CR s. 14.1(2).

Freedoms to access and use

By Home UsersIs there a general exception for the fair use of copyright material for any purpose that satisfies a set of balancing criteria? NO
The “fair dealing” provision establishes specific exceptions for research, private study, criticism, review, and news reporting.		 CR ss. 29 – 29.2
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? LIMITED
Time, space, and format shifting is not permitted. However, private copying of sound recordings for personal use is permitted.		 CR s. 80 (1)
Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? LIMITED
Reproduction of a computer program is permitted if the copy is either: only for personal use, essential for the compatibility of the computer program with a particular computer and destroyed immediately after the person ceases to be the owner of the copy; or, if the person proves that the reproduction for backup purposes is destroyed immediately when the person ceases to own of the copy of the computer program.		 CR s. 30.6(a) – (b)
Can works be communicated to a limited public (for example, family and friends) without infringing copyright? NO
Does a collective licensing scheme permit the copying or sharing of copyright material by consumers in exchange for a media or equipment levy? YES
Blank media including audio tapes, CD-Rs, CD-RWs, CD-R Audios, CR-RW Audios, and Minidiscs have a $0.29 levy which is collected by the Canadian Private Copying Collective.		 PCT and CR s. 82
For EducationIs reproduction permitted for the purposes of research or study? YES
Fair dealing includes the categories of research and private study. 		CR s. 29
Does any such research and study provision cover distance and online education? LIMITED
Only to the extent that the distance and online education involves research or private study. 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. 		CCH
May translations of works be made for educational purposes? LIMITED
Translations of copyright material for the purpose of examinations in educational institutions are exempted. Also exempted are translations into languages and formats suitable for people with disabilities.		 CR s. 29.4 (2)(a), CR s. 32(1)
May works be reproduced and published by educational institutions in connection with systematic instructional activities? LIMITED
Educational institutions are fully exempt from liability for the performance of works of theatre or music. However, reproduction of other works involves increased strictures against the reproductions, location of distribution, and length of the existence of the reproduction.In addition to this specific exemption for educational institutions, they may also have recourse to the general fair dealing exemption for research and private study. The presence of a specific institutional exemption does not preclude an institution from availing themselves of the general fair dealing exemption as well.		 CR ss. 29.4 - 30; CR s. 32.2(3); CCH at para. 49.
OnlineIs hyperlinking to a Web site allowed without permission of the site's owner? LIMITED
Although this issue was not addressed directly in a case, Binnie J. in obiter wrote in the SOCAN case that hyperlinking may attract copyright liability and thus preclude an ISP from protection under the Copyright Act for communications transmitters qua service providers.		 SOCAN at para. 102; CR s. 2.4(1)(b)
Are temporary or transient copies, incidental to a lawful use, excepted from copyright? NO
There is no specific exception for temporary or transient copies. However, whether a copy was made for permanent or transient use is a consideration available to the court in deciding whether a case is a ‘fair dealing.’ A court will be more likely to find that the dealing was fair when a copy is made and then destroyed after use.		 CCH at para. 55.
Are ISPs protected from liability for infringements by third parties, because the law either does not impose liability upon intermediaries or limits their liability in certain circumstances? YES
Yes. The Copyright Act specifically limits the liability of telecommunications providers from infringement insofar as they are simply the carriers of the data and not the users.		 CR s. 2.4(1)(b); SOCAN
Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material? YES
However, many ISPs employ deep packet inspection to monitor data transmissions and throttle traffic speed.
Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs? LIMITED
Privacy laws do apply, which establishes limits on disclosures. However, the courts have established a framework that permits disclosure subject to appropriate privacy safeguards.
By content creatorsCan copyright works be non-commercially remixed or mashed up into new works? NO
May computer software be reverse engineered for the purpose of creating interoperable software? NO
There is no specific exception for reverse engineering.
Is the incidental inclusion of a work in other material permitted? LIMITED
Incidental inclusion of copyrighted works only escape liability if they are not deliberately included.		 CR. S. 30.7
Is there are copyright exception for parody or satire? NO
Canwest
Do creators who license their work retain the moral right of attribution? YES
Moral rights may not be assigned but may be waived in whole or part. An assignment does not automatically constitute a waiver of moral rights.		 CR s. 14.1(2)-(3)
By the pressIs there a copyright exception for the news of the day? YES
There is a news reporting exception under the fair dealing provision.
May copyright material be reproduced for the purposes of review and criticism? YES
Under the fair dealing system, reproduction for the purposes of criticism are allowed as long as the source is disclosed.		 CR s. 29.1
May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose? LIMITED
Political speeches delivered in public may be reproduced for the purposes of news reporting. (CR s. 32.2.(e)). However, speeches of public officials may also be copyrighted insofar as they are works created under the government’s direction, in which case, copyright vests in the Crown. (CR s. 12). Each case will be decided on the facts.
May quotations be used for any purpose? YES
Subject to proper attribution.
By LibrariesMay libraries copy works that cannot reasonably be obtained commercially? NO
CR s. 30(2)
May libraries copy works for users for the purpose of research or study? YES
Libraries may make copies of materials for people’s research, private study or for criticism and review.		 CR s. 30.2(1)
Are libraries allowed to make preservation or archive copies of materials in their collections? YES
Except where an appropriate copy is commercially available in an appropriate medium.		 CR s. 30(1)-(2)
In making permitted copies, are libraries entitled to circumvent technological protection mechanisms (TPMs)? YES
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? YES
CR s. 32(1)
In public affairsAre laws excluded from copyright? NO
Laws are considered to be Crown copyright. However, federal regulations have licensed, indefinitely, 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 moral rights.		 RFLO
Are other governmental works excluded from copyright? NO
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
Is there a copyright exception for use of material in judicial proceedings? YES
Judicial proceedings and decisions are beyond copyright protection, provided that due diligence is exercised in ensuring the accuracy of the reproduction and if it is not represented as an official version.		 RFLO
Are the results of publicly funded research required to be published under an open access license? NO

Freedoms to share and transfer

May copyright works be freely offered for commercial rental? NO
rental requires permission from the copyright owner.		 CR s. 27(2)(a)-(c) and 42(1)(b)
Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than an overt act of relinquishment? NO
Are orphaned works treated differently in the law to other copyright works, for example by allowing them to be compulsorily licenced, limiting remedies, or by releasing them into the public domain? YES
There is a system for unlocateable owners that allows for licensing of orphan works. The Copyright Board will issue licenses to publish, perform or broadcast orphaned [unlocateable authors] works where the applicant to the Board has shown that they’ve taken all reasonable measures to locate the author without finding. This type of license is not exclusive and subject to conditions set by the Board. The owner of the copyright may come forward and request royalties obtained by the Board from that license no later than five years after its expiration.		 CR s. 77(1)-(3)
Is parallel importation permitted? NO
However, the CR only prohibits the parallel importation of books into Canada.		 CR s. 27(1)
Are there incentives for the use, production and dissemination of free and open source software within copyright law or elsewhere in national law/policy? NO
Are there incentives for the use, production and dissemination of open access material (e.g. textbooks) within copyright law or elsewhere in national law / policy? NO
Are there specifications or incentives in national law/policy for the use of open document formats? NO

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? A fine of up to $1,000,000 or incarceration up to five years. CR s. 38.1(1)
What is the maximum penalty for copyright infringement for a corporation? A fine of up to $1,000,000. CR s. 38.1(1)
Do the penalties for copyright infringement distinguish between personal versus (large-scale) commercial use, other than at the discretion of a judge? YES
The statutory damages provision provides a sliding scale that allows a court or judge to take these differences into account.
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for purposes that would not infringe copyright? YES
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright? YES
Does national copyright or consumer protection law require disclosure to consumers of the existence of TPMs and any potential limitations on the use of TPM-protected material? NO
Are the operations of copyright collectives subject to public oversight? LIMITED
Limited. All collective societies that grant licenses or collect royalties for copyrighted works’ performances must be responsible to the public by answering all reasonable requests for information about the collective’s repertoire, performances, and recordings.		 CR s. 67
Are ISPs independent of copyright owners, to the extent that no law or industry code of conduct requires them to notify their users who are alleged to have committed a copyright infringement online? YES
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? NO
There are some criminal sanctions for copyright infringement. For instance, there is a criminal prohibition on unauthorized recording (‘camcording’) of performances (categorized under “mischief” in the Criminal Code of Canada). The Copyright Act stipulates Criminal remedies for infringement, which can be both on summary conviction of indictment.		 CCC s. 432(1); CR s. 42.1(f)-(g)
Are damages for copyright infringement based on the loss sustained, rather than by a pre-established or statutory damages award? NO
The quantum of damages for copyright infringement may be made according to the loss sustained, or according to the profits sustained by infringer. The infringer may also face pre-determined statutory damages: on summary conviction, a copyright infringer is liable to pay up to $25,000 or serve up to six months in jail; and on conviction of indictment, the infringer is iable to pay up tot $1,000,000 in damages or serve up to five years in jail.		 CR s. 35(1); CR s. 38.1(1)
Is there provision to penalise the wrongful allegation of copyright infringement? LIMITED
There is no criminal sanction for the wrongful allegation of copyright infringement, however, there may be a civil suit to be made under defamation or abuse of civil proceedings, or economic torts.

Conclusions

Canada’s copyrighti 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 Conventioni but have faced pressure from the United States - including placement on the USTR Special 301 list - for new digital reforms. Pressure to amend Canadian copyright in accordance with US standards found in the Digital Millennium Copyright Act (DMCA) have met with difficulty in the Parliament as well as in public opinion.

Two bills that sought to introduce digital copyright reforms died on the order paper due to national elections. Moreover, a 2009 public consultation on copyright 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. 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.

With a new session of Parliament beginning in March, 2010, the Speech From the Throne (that sets the Government’s agenda for the next Parliamentary session) identified copyright law reform as a priority. Further, the Industry Minister Tony Clement stated that Canadians should expect a "Made in Canada" approach to copyright reform. This suggests the Government is keenly aware of the Canadian public’s negative perception of DMCA-style reforms and is willing to participate in reforming Canada’s copyright laws in its best interest.

Creative Commons license icon
This work is licensed under a Attribution Share Alike Creative Commons license