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Frequently Asked Questions
Amendments to the Copyright Act
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Why is the Copyright Act being amended?
A. Canada's Copyright Act needs to be updated and clarified to better address the
challenges and the opportunities presented by the Internet and digital technology in general.
In accordance with the agenda for copyright reform set out in Supporting Culture and Innovation:
Report on the Provisions and Operation of the Copyright Act (the "Section 92 Report"), the bill
addresses the short-term priority issues relating primarily to the Internet. These amendments
will: enhance protection of works in the online environment, both to address infringement and to
enable the development of new business models; enable use of the Internet as a tool for learning
and research; and clarify Internet service provider (ISP) liability. The enhanced protections will
be provided through the implementation of the obligations set out in two treaties that were
concluded in 1996 at the World Intellectual Property Organization (the "WIPO Treaties").
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Has the Government thoroughly consulted on the issues in the proposed bill?
A. Copyright law is complex and contentious, more than ever now in the Internet environment.
Every country around the world that has introduced or contemplated measures similar to those
proposed by the Government of Canada has struggled to address the Internet challenge. In 2001,
the Government launched online consultations on four key issues addressed in the bill. Over 700
submissions were received as a result of these consultations. These were followed up by
face-to-face consultations in six Canadian cities. With respect to the other issues,
consultations were targeted to stakeholders that were most affected by the amendments under
consideration. On the matter of the educational use of Internet content, extensive consultations
were undertaken and a working group was set up with a view to reaching a consensus on the most
pressing questions. Extensive policy, legal, economic and comparative research has also been
undertaken to resolve the many outstanding questions.
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What are the WIPO Treaties?
A. The treaties in question are the WIPO Copyright Treaty (WCT) and the WIPO Performances and
Phonograms Treaty (WPPT). They were concluded in 1996 at the World Intellectual Property
Organization to address the Internet. Together, these treaties establish protections for authors,
sound recording makers and performers of audio works. Canada participated in the negotiations and
signed the treaties in 1997, signalling its commitment to the principles they embody, but has yet
to ratify them. The treaties came into force in 2002. Canada will be bound when it ratifies the
treaties. As of May 6, 2005, there were 52 members of the WCT and 49 members of the WPPT. Among
the ratifying countries, Japan and the United States are the only G-8 members.
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Will the Government be ratifying the WIPO Treaties as a result of this legislation?
A. Canada will be able to ratify the treaties once the Copyright Act has been amended to
bring it into conformity with the treaties' requirements. The bill will implement all the
rights and protections provided for in the WIPO Treaties. The Government will consider
ratification of the treaties after the bill has passed. It is still necessary to analyze
whether amendments will also be necessary to amend the private copying regime to bring the
Copyright Act fully into conformity with the treaties. Public consultations on the private
copying regime as a whole will be launched as soon as possible after tabling of the bill.
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What is in this bill that will help copyright owners deal with the Internet environment?
A. Generally, the bill addresses the challenge of digital technology by implementing
the provisions of the WIPO Treaties. In particular, rights holders will have an exclusive right
to control the making available of copyright materials on the Internet. This will clarify that
the unauthorized posting or the peer-to-peer (P2P) file-sharing of material on the Internet
constitutes an infringement of copyright. The bill also contains legal protections for
technological measures (encryptions, password requirements) and rights management systems
containing information for the purpose of tracking uses of works. For example, the removal of or
tampering with technological measures (TM) for the purpose of infringing copyright will itself
constitute an infringement of copyright.
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How does the bill address unauthorized P2P file-sharing? What will be the impact on
individuals who share files?
A. The bill provides creators and other rights holders with additional tools to seek legal
recourse against individuals engaged in P2P file-sharing or unauthorized posting of copyrighted
material. Specifically, rights holders will have the right to control the making available of
their copyrighted material on the Internet. It will also clarify that private copies of sound
recordings cannot be uploaded or further distributed. Individuals may therefore be subject to
legal action for their unauthorized file-sharing activities, but it will be up to rights holders
to exercise their new rights. Even so, file sharing has remained a challenge in other countries
that have implemented the WIPO Treaties obligations in this respect.
Is there a risk that protection of technological measures (TMs) will adversely affect
users?
A. The protections for TMs contained in this bill will apply consistently with the application
of copyright. That is, the circumvention of a TM applied to copyrighted material will only be
illegal if it is carried out with the objective of infringing copyright. Legitimate access, as
authorized by the Copyright Act, will not be altered. These measures will not affect what may
already be done for the purposes of security testing or reverse engineering. Circumvention for
the purposes of making private copies of sound recordings will not be permitted, however. The
proposals have been developed so as to ensure that Canadians' privacy rights are not reduced or
undermined.
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Why are Internet service providers (ISPs) being exempted from potential copyright
liability? What will ISPs be required to do?
A. ISPs will be exempt from liability for copyrighted material circulating on their networks
over which they have no control or authority, i.e., when they act purely as intermediaries.
Copyright liability will remain with those persons, including ISPs, who post or transmit
copyrighted material without authorization. This approach provides legal clarity for ISPs so as
to continue to encourage the availability of high-quality Internet services to Canadians at
affordable cost. It is also consistent with the 2004 decision of the Supreme Court of Canada.
ISPs can play a significant role in curbing infringing activities of subscribers on those networks,
however. This is important because very often they are the only parties who can help rights holders
identify those who are alleged to be infringing copyright, and without whom rights holders could
not properly enforce their rights on the Internet. The bill provides that ISPs be required to
forward notices of claims of infringement from rights holders to their subscribers (a "notice
and notice" requirement). Limited liability of information location tools (e.g. search engines)
will also be included.
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How does a "notice and notice" regime work? How will it help to curb the misuse of the
Internet for infringing purposes?
A. Under the proposed "notice and notice" regime, an ISP will be required to forward any
notice it receives from a copyright owner to a subscriber who is alleged to be engaging in
infringing activities online. The ISP will also be required to retain, for a set period of
time, information sufficient to identify the subscriber in question. Through this regime,
rights holders will have a mechanism for notifying Internet users that their activities may
be infringing the rights holders' copyright. In the event that such activities lead to
litigation, the record-keeping requirement will better enable identification of the parties
alleged to be involved. In this respect, however, the regime will not require disclosure of
the identity of a subscriber; in order to protect Internet users' legitimate expectations of
privacy, a court order will be required.
Why is the Government not instituting a "notice and takedown" regime for ISPs
(as other countries have done)?
A. A "notice and takedown" regime typically requires an ISP to block access to material
upon receiving a notice from a rights holder that alleges such material to be infringing. The
obligation to block access lies with the ISP whose facilities are being used to host the
allegedly infringing material. Under Canadian law, the courts already have the ability to
order the takedown of infringing material in appropriate cases.
A drawback of "notice and takedown" is that it typically applies only to materials posted on an
ISP's facilities; it cannot cover P2P file sharing, arguably the most prevalent source of
infringing material, since the files are actually located on the computers of the persons
engaged in sharing. The proposed "notice and notice" regime will address P2P file sharing.
What is in this bill to ensure that users' interests are equitably addressed?
A. In addition to the clarification of copyright liability of ISPs, there are provisions that
facilitate the use of digital technologies for educational and research purposes. Specifically,
educational institutions and libraries will be able to benefit from digital technology to permit
classroom activities to be conducted in remote locations and documents to be electronically
delivered. To prevent abuse, the provisions will only apply if appropriate safeguards preventing
the unauthorized transmission of works have been put in place. Should these safeguards prove to
be ineffective, the educational institutions and libraries will not be able to benefit from these
provisions until such time as their effectiveness is restored.
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Why is it necessary to grant photographers copyright for their photographs? Are
there special safeguards for consumers?
A. The author of a work is usually the person who creates it. Where the work is a photograph,
the owner of the initial negative is deemed to be the photograph's author (though this is often
the photographer in practice). With respect to commissioned photographs, the owner of copyright
is the person commissioning the photograph, subject to an agreement to the contrary. The existing
rules on photographs will be repealed to harmonize the copyright treatment of photographers with
those of other authors. With respect to commissioned photographs, those who commission photographs
for personal purposes will be able to make private or non-commercial uses of the photographs unless
they enter into an agreement to the contrary. Existing protections of personal information and
privacy legislation at the federal and provincial levels will continue to apply, regardless of the
ownership of copyright in commissioned photographs.
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Why is the Government not following all of the recommendations in the Standing Committee
on Canadian Heritage's Interim Report on Copyright Reform?
A. The Government is, in fact, following many of the committee's recommendations. The Government
otherwise carefully considered the important work undertaken by the committee. As well, some of
the recommendations made by the committee give rise to issues that the Government sees as best
addressed in the medium-term review of copyright reform issues.
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Which parliamentary committee will consider this bill?
A. The Leader of the Government in the House of Commons will make that decision in consultation
with his counterparts on the opposition parties. The Government will seek to ensure throughout the
legislative process that the proposed amendments benefit from a consideration of the full range
of cultural and economic perspectives that should be reflected in modern copyright law.
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Why is the issue of educational use of publicly available material on the Internet not
being addressed in this bill? Why another consultation?
A. This has proven to be a very complex and contentious issue. Educational institutions seek
clarity in the law in order to use so-called "publicly available" Internet material without
worrying about whether that will result in copyright liability. Rights holders seek tools to
enable them to be paid for Internet material that is intended to be paid for. It is difficult
to know which material on the Internet is intended by rights holders to be freely used in an
educational setting and which is not. Moreover, there has been no agreement on the criteria to
be used to identify "publicly available" material, nor on how or when educational use of this
material is to be permitted. Although some consultations have already been held on this issue,
common ground between the concerned stakeholders has not been found. Further public input and
consideration is required, and now that the bill has been tabled, the Government is ready to
soon proceed with its consultation process
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Why is the Government not acting on the private copying issue?
A. In the October 2002, as part of the Section 92 Report on the Provisions and Operation of the
Copyright Act, the Government identified private copying as a medium-term issue. The Government
intends to release a discussion paper on the matter as soon as possible.
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When will the other copyright reform issues be dealt with?
A. Work is already underway on certain medium-term issues identified in the Section 92 Report.
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