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This entry lists thirty-five (35+) or so questions about Canadian copyright, digital copyright and Canada's obligations under various international agreements. Bill C-11 amended existing provisions of the Canadian Copyright Act, and changes are in force as of 2012. Where we refer to Bill C-11, it should be understood that we mean the Copyright Act as amended.
What is copyright?
Copyright is the legal right given to authors and creators to control the "copying" of their intellectual property. Copyright is typically enforced by laws that grant authors and creators exclusive rights to their works. Exclusive rights are not absolute, and limited by legal exceptions within each country. As a form of intellectual property protection, copyright may be shared among many authors, each holding rights to use or licensing of their work. Authors are often referred to as "rightsholders". Copyright can include control over reproductions, derivatives, distribution rights, public performances and "moral rights" such as attribution.
What laws govern copyright in Canada?
The Copyright laws of Canada are embodied in the Canadian Copyright Act. Canada passed its first copyright law in the 19th century (1832) which, because Canada was still a colony, was subject to copyright laws established by Britain until 1921. Current copyright was established by the Copyright Act of Canada, which was first passed in 1921 and amended in 1988, 1997 and 2012. By 2011, the Canadian federal government had introduced Bill C-11 (passed in 2012, and now in effect) which was entitled the Copyright Modernization Act. Between passing the bill and subsequent developments in the law, Canada's Supreme Court re-affirmed a liberal interpretation of fair dealing which allows the copying of materials for education and research. The Court extended the interpretation to include reproduction of classroom copies for study saying "...fair dealing is technologically-neutral". Bill C-11 opens up fair dealing by including "education" as a legitimate reason to share copyrighted material. Statutory damages are limited in this new legal framework. Please consult a librarian or copyright lawyer for more information.
It is thought that on Thursday July 12, 2012, when the Supreme Court of Canada rendered judgements in five copyright cases (the so-called pentalogy) that Canada moved towards fair use of intellectual property, aligning it more closely with the United States. The SCC's judgements will shape Canada’s copyright law for years to come.
What is fair dealing?
According to the Fair Dealing Exceptions, "...fair dealing is an important statutory exception provided by the Canadian Copyright Act...". Changes to copyright law over the years, guidance from the Supreme Court of Canada and shifting practices, have altered the copyright landscape. Publishers, authors and consumers of copyrighted content are working out the details and libraries across the country play an important role in shaping the new digital environment. To participate fully, libraries must develop and expand their capacity to deal with copyright issues.
In the United States, the equivalent to fair dealing is fair use.
Copyright Modernization Act, Bill C-11
The Copyright Modernization Act, Bill C-11 (Bill C-11* received Royal Assent on June 29, 2012, and most of its provisions were brought into force on November 7, 2012. All remaining sections were brought into force by January 2, 2015.) allows Canadians to copy content from one device to another such as a compact disc onto computers and mobiles. This does not apply to content protected by digital locks; a digital lock is any technological measure, such as encryption or digital signature, that is imposed to restrict access to or prevent copying of CDs, DVDs, e-books, digital files and other digital materials.
The copyright act allows Canadians to record television, radio and internet broadcasts and listen or view them on any device but not to build their own library or for commercial use. This provision does not extend to content offered "on-demand" (such as streamed video, for example) or that is protected by digital locks. The act allow Canadians to make a backup copy of content to protect against loss or damage -- again unless that content is protected by a digital lock or offered as an on-demand service.
Fair Dealing as seen by the Supreme Court of Canada
The Supreme Court of Canada has re-affirmed the interpretation of fair dealing. In fair dealing and other cases, the Court extended fair dealing to include the reproduction of classroom copies of copyrighted works. Another Court decision affirmed the notion that fair dealing should be technology-neutral, an important development as different devices should be able to access content without fear of copyright infringements. These Court rulings are based on the old, non-updated copyright laws. Bill C-11 opened up the concept of fair dealing by including "education" as a legitimate reason to share digital content. New statutory damages therefore will limit institutional liability, so there is little risk in making full use of fair dealing rights. See http://www.michaelgeist.ca/content/view/6588/125/
What does copyright mean in Canada? Which government department is responsible for copyright?
Any and all intellectual and creative works in Canada are protected by copyright. Copyright protects creators from having their works used in any form without their permission. The law applies to reproduction, adaptation, translation, transmission and performance of works. The Canadian Copyright Act is implemented by the Copyright Policy Branch of the Department of Canadian Heritage in co-operation with the Intellectual Property Policy Directorate of Industry Canada.
Canadian view of copyright for materials created by employees
A 2014 decision in the BC Supreme Court ruled on ownership of copyright in works created by employees. In section 13(3) Works created in the course of employment, the employer is the first owner of copyright (absent a contract to the contrary) where the work is considered part of the employee’s duties. But this does not give the employer rights over all creations that may be created by an employee where there is no express responsibility to do such work. The case (see the decision here: http://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1559/2014bcsc1559.html) involved an instructor at a college who took a photograph on the premises and the subject matter included college students. The court ruled that, even in the circumstances described, the photograph was not part of the instructor’s contractual duties and therefore the instructor retained first ownership in the copyrighted work. You can see some discussion of the implications for employers and employees in this post from the snIP/Its blog (Mccarthy-Tetrault law firm) here: http://www.canadiantechlawblog.com/2014/09/02/when-does-an-employer-own-copyright-in-a-photograph-made-by-an-employee/
What is Access Copyright? What is it's purpose?
Access Copyright (AC) is the name of the Canadian Copyright Licensing Agency (formerly Cancopy). As a non-profit copyright collective, AC collects revenues from Canadian universities and other copyright users for distribution to copyrights holders including publishers and authors. Its purpose is to provide users permission to copy copyright protected materials and to facilitate fair compensation between creators and publishers. It balances the rights of copyright owners with the rights of the public for access to and use of works published in Australia, Argentina, Canada, Denmark, France, Germany, Greece, Hong Kong, Iceland, Ireland, Italy, Liechtenstein, Malta, Netherlands, New Zealand, Norway, South Africa, Spain, Switzerland, United Kingdom, and the United States.
What is the Berne Convention and how does it affect copyright?
The Berne Convention is one of many agreements that provides protection for intellectual works in countries outside of their borders. Canada signed the 1886 Berne Convention in 1923 which has considerable impact on our sovereignty over cultural matters. While the Act protects the rights of creators, Berne and other treaties expand protections to territories of other countries. Formally known as the International Union for the Protection of Literary and Artistic Works, Berne underwent major revisions in 1929 and 1971. There are 184 member states in WIPO whose purpose is to provide international copyright protection. Members agree to provide protection as though the work originated in their own country. Berne does not dictate laws but sets minimum standards for members. Canadian law meets the standards of the 1971 revision but they have no legal effect. Berne can be referred to when interpreting the Copyright Act. Works copyrighted in Canada automatically have copyright protection in Berne member states. Berne is one of many international agreements and others include:
What is the Berne Timeline?
What does "... in the public domain" mean?
In Canada, works generally enter the public domain fifty (50) years after an author’s death. Under the Copyright Act (C-42), copyright lasts from the time materials are created throughout the author’s life including the calendar year of his death plus fifty (50) years. If works are given “new and novel expression” e.g. new editions or arrangements (“transformative” works) then a renewed copyright comes into effect. While an author's heirs do not inherit copyright of a work, they do inherit moral rights and occasionally trademarks.
A work falls within the public domain when:
When do printed works fall into the public domain?
The general rule for printed works is "life of the author, remainder of calendar year in which author dies, and period of fifty years following the end of calendar year". This duration is the "life-plus-fifty rule". Exceptions are works owned by government. Works published or prepared by federal, provincial or territorial governments base their copyright duration on the first published date. Once published, copyright "continues for a period of fifty years to the calendar year-end from the date of the first publication of the work". For government works that are never published, they have perpetual copyright protection. (For more information see Harris LE. Canadian Copyright Law. Toronto: McGraw-Hill Ryerson, 2001.)
When does a photograph fall into public domain?
In Canada, the rule for photographs is the same as other content: "life-plus-fifty". Photographs are protected from copyright infringement during the life of the photograph's creator plus another fifty years after death. If a photographer dies on January 1, 2009 her photos do not fall into the public domain until January 2059. In other words, photographs fall into the public domain if they were taken before 1 January, 1949 or dedicated by copyright owners. Photographs by anonymous or pseudonymous owners fall into the public domain 50 years following publication or 75 years after the work was created (whichever is earlier provided the author does not become known during that time).
What is WIPO and what responsibility does Canada have under WIPO?
The World Intellectual Property Organization (WIPO) is one of 16 specialized agencies of the United Nations. It is an international body "dedicated to developing a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest". As a member state of the UN, Canada has joined WIPO. There two treaties which have been created by the organization: the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). As participants in the development of these treaties, Canada agrees to uphold the principles they contain. The Canadian government must amend the Copyright Act to align with WIPO treaties.
What is the Digital Millennium Copyright Act (DCMA)?
The DCMA protects electronic material and the rights of copyright owners. It arose from two treaties signed in 1996 at WIPO. A variety of intellectual and digital copyright issues are covered by DCMA including performances, liability limitation for ISPs, backup copies of software, long-distance learning and exemptions for libraries. It provides for re-institution of copyright for materials outside the US that fall into the public domain but are still under copyright in their original country. Remedies and provisions for restitution are written into the DCMA. Software and entertainment communities were in favour of DCMA but academics and librarians were not. Two contentious issues were criminalization of breaking anti-piracy locks on software and the requirement that ISPs must remove web content from client sites that break the law.
What is fair dealing as defined in Canadian copyright law?
Fair dealing is a long-standing feature of Canadian copyright law that permits certain uses of copyright material in ways that do not unduly threaten the interests of copyright owners, but which could have significant social benefits — but only if they are fair. Currently, fair dealing in Canada is limited to five purposes: research, private study, news reporting, criticism and review. To recognize the important benefits of education, parody and satire, the proposed Bill would add these three elements as new purposes to which fair dealing applies. The 1985 Copyright Act (sec.29) states that "fair dealing for the purpose of research or private study does not infringe copyright". Use of material for the purposes of criticism and news reporting is fair when properly attributed to the copyright owner or source. In addition, according to a Supreme Court of Canada, even commercial use of material can be considered fair under certain circumstances. Some copyrighted information used for private research or study, criticism or review is acceptable. However, fair dealing does not prevent copyright owners from taking legal action against users but gives protection where "fair dealing" can be demonstrated.
What is fair use as defined in US copyright law?
According to US Copyright, fair use allows for the reproduction of a copyrighted work by someone other than the author without their permission. This is an important limitation to rights accorded to owners of copyright. US law sets out conditions under which use can be considered "fair" such as reporting, research and teaching. It outlines four factors that should be considered when determining whether the use of a work is fair. Fair use can be defined differently depending on the individual case. In contrast to "fair dealing" in Canada, fair use allows users to use copyrighted materials freely in more situations and is meant to foster creative freedom for users of copyrighted material and subsequently for the enrichment of the public.
What do the concepts "rights of the creator" vs. "rights of the user" mean?
The concept of the “rights of the creator vs. the rights of the user" refers to copyright laws, and whether these laws favour creators for compensation and protection of authorship or users regarding sufficient access to works through public domain and fair dealing. Laws favouring rights of creators often restrict access to works, requiring subscription or payment to view, or penalties for accessing the work beyond specified parameters. Laws favouring rights of creators allow for largely unrestricted access to works as long as they are compensated fairly (when applicable) and users are not profiting from works created by other people.
What does "Collective Rights Management" mean?
Collective Rights Management (CRM) means that another organization or society takes care of, or manages, the authorization of individual works of authors, artists, photographers and other rights holders. The ability to use intellectual works is given to users in a more efficient manner than by contacting individual rights holders. Usually collecting agencies are non-profit organizations, owned by members, and the right holders they represent. Some examples include Canadian Musical Reproduction Rights Agency Ltd (CMRRA), Canadian Private Copying Collective (CPCC), Society of Composers, Authors and Music Publishers of Canada (SOCAN), etc. http://www.cla.ca/resources/copyright.htm
What is SOCAN? What is its purpose?
SOCAN or the Society of Composers, Authors and Music Publishers of Canada is a not-for-profit organization that protects the intellectual property rights of Canadian music creators and publishers. (This does not include reproduction rights). Founded in 1990 out of a merger between the Composers, Authors and Publishers Association of Canada and the Canadian Performing Rights Society, SOCAN is a "member-based organization" that lobbies government regarding the use of the works of its subscribers (“Our History” para. 5). SOCAN is responsible for collecting licensing fees from individuals and organizations that use the music of SOCAN artists or publishers. SOCAN pays royalties to the corresponding member(s) as needed. SOCAN acts as an intermediary between artists and their customers, but it is not responsible for obtaining or maintaining copyrights on any of the works they license. SOCAN works with governments to create legislation that will balance the rights of creators and users and will enforce rights.
What is CPCC (Canadian Private Copying Collective)? What is it's purpose?
Canadian Private Copying Collective (CPCC) is a non-profit organization that collects and distributes private copying royalties on behalf of songwriters, recording artists, music publishers and record companies. In Part VIII of Canada's Copyright Act, it stipulates that a private copy is a full or partial reproduction of a track of recorded music made by an individual for personal and private use. If additional copies are made for others or for profit, they are no longer considered private copies. Copyright owners have the right to receive compensation of "royalties for private copying" or they may be subjected to penalties in court. The CPCC enforces private copying tariffs by representing copyright holders before the Copyright Board and are subjected to the "Private Copying Tariff, 2008-2009". The Copyright Act has created an exemption to benefit the disabled population where a rebate may be claimed on royalties paid, by the representing Society, Association or Corporation, recognizing that disability inhibits an individual to access original work by a musician or artist. It is recommended that these individuals qualifying for rebate have the option to purchase royalty-free under the CPCC's zero-rating program.
What does ISP liability refer to?
ISP liability refers to an internet service provider's liability where copyright infringement occurs by their customers on their networks (i.e. posting copyrighted items or downloading copyrighted material). In Canada, if a copyright holder believes that infringement has occurred, the ISP can be contacted and an official complaint is registered. The ISP is required to speak to the customer to let them officially know about the violation - called a "notice and notice" action. ISPs are required to record their complaints in case the information is needed by the courts in the event of legal action. ISPs can also be asked by the courts to block any offender's access but this too requires official notice. In the United States, ISPs who take complaints of infringement are required to block an offender's access immediately without a court order (called "notice and takedown").
The Supreme Court made a ruling about ISPs and the downloading of music. What is the thrust of the ruling?
The Supreme Court dismissed an action brought by the Canadian Recording Industry Association (CRIA) against 29 individuals for loss of revenue by downloading music files and file-sharing by using directories known as peer-to-peer (P2P). (The ISPs did not disclose the identities of their clients citing privacy concerns). The judge ruled under the Personal Information Protection and Electronic Documents Act (PIPEDA) that ISPs cannot disclose personal information without a client's consent and that it requires a court order. The ruling said that downloading music for personal use is not an infringement of copyright nor is it considered distribution. The Court ruled that ISPs cannot be held responsible for distribution of material by their clients. The Society of Composers, Authors and Music Publishers of Canada sought to collect royalties from Canadian ISPs. The court ruled ISPs merely act as intermediaries.
Deep linking refers to a special kind of hyperlinking where links on a webpage bypass the homepage of the site. There is no legislation in Canada addressing deep linking but suggested guidelines include getting permission from a site’s creator to use them. Internationally there have been rulings on the legality of deep linking but judgments are mixed. Supporters claim that deep linking is harmless while others say that sites from which links are taken result in lost revenue.
What are "Technological Protection Measures (TPMs)"? How do they relate to copyright reform?
TPMs refer to extending copyright to digital environments. They are used to promote intellectual property by restricting access to such works or various uses including copying, distribution, performance and display. This can be from an ebook in a library or mp3 from websites; DVDs using CSS (Content Scramble System) when inserted into a computer if the user tries to tamper with it. With high-tech solutions come high-tech problems; people hack into closed systems, post passwords and keys, decrypting by brute force and pirating programs. TPMs are the center of some controversy. Some say they reinforce current copyright laws while others say they "destroy the balance" by giving too much power to copyright owners whether they are corporations, record labels or artists. As shown in RiP! A Remix Manifesto, individual rights are practically non-existent. TPMs and DRMs (Digital Rights Management) take basic rights away from people and limit intellectual freedom.
Why does the CIPPIC feel the privacy of Canadians is threatened by changes sought by the Canadian recording industry?
BitTorrent and Peer-to Peer tools make sharing of digital files easy on the web and have created the opportunity to distribute illegal copies of music, files and movies. The Canadian recording industry wants to identify file-sharers and target those they believe are Canadian file-sharers. CIPPIC’s (Canadian Internet Policy and Public Interest Clinic) worry for the non-aligned copyright community is that industry would be able to sue Canadians they find are sharing music. CIPPIC believes the privacy of users is at stake and that unnecessary gathering of personal and confidential information to pursue a claim infringes privacy. CIPPIC believes this practice endangers innocent people and exposes them to litigation. Information shows when you purchase music from iTunes, any file you download will contain personal information in the metadata. If you share it, or distribute it, iTunes can see who sent the file because every file is unique. CIPPIC feels the privacy of Canadians is threatened because what users listen to, read or watch is monitored. The law makes it illegal to break digital locks even if your use is legal. CIPPIC feels this leaves no room to enjoy copyrighted works.
What are educational exceptions in the current copyright act?
Exceptions to the Canada Copyright Act include a 'fair dealing' exception for research or private study and exceptions for educational institutions. A not-for-profit educational institution can copy texts and perform theatrical works in the classroom as long as it is for educational purposes. Educational institutions can make recordings of news programs from television or radio, but not documentaries.
Allowances are made for:
How does the government intend to proceed on the educational use of Internet material?
The government wants to change legislation so that students can access the same information on the web that they can in a class (for example web based classes) free of liability. As long as safeguards are in place, students should be able to access materials from home or school. The government wants the blanket institutional license to extend to electronic copies as well as physical copies as long as measures are in place to prevent misuse.
What is the philosophy behind a creative commons agreement?
Creative Commons aims to offer an alternative to full copyright by trying to create a bridge between tightly regulated control and wide open freedom. CC hopes to protect the creators of new works while allowing freer use of materials - a "best of both worlds" arrangement. Further, the intention of CC is to avoid problems that arise with respect to copyright and sharing information for research or study.
What is the philosophy of open source software?
Open source software (OSS) describes software that can be downloaded and used by anyone, often with no charge. This results in more choice, because of the number of available programs, and freedom to users because the code can be used or altered. The philosophy is that a community of contributors create something instead of it being developed in isolation. An example of OSS is Ubuntu or Mozilla Firefox. OSS should comply with certain criteria, enjoy free distribution, maintain integrity of author source code and not discriminate against persons. OS Initiative (OSI) was formed to develop rules and practices, as well as to educate consumers about OSS.
What is Digital Rights Management and how does it affect copyright?
DRM is also called "Digital Restrictions Management", a term used by manufacturers, publishers, copyright holders and individuals to limit use of digital content. The term describes any technology that inhibits use of digital content that is not desired or intended by the content provider. It does not refer to other forms of copy protection, which can be circumvented without modifying the file or device, such as serial numbers or keyfiles. It can refer to restrictions associated with specific instances of digital works or devices. Digital rights management is used by companies such as Sony, Amazon, Apple and Microsoft.
Are messages posted on listservs in the public domain?
Emails or messages posted to a listserv are not considered to be in the public domain. The definition of public domain is that copyright has expired. This happens fifty years after the death of the creator of the work. Some people believe that posting to listservs should automatically grant permission to others to copy. But if an author wants that to be the case, s/he should state outright that others may use the post without permission. Source: "Canadian Copyright Law". (2005). McGraw-Hill Ryerson.
Others believe that putting something on a listserv places it in the public domain. A listserv user document on the BC Psychological Association website states "...Please remember at all times that something written on the ListServe becomes a document that can be printed, duplicated, modified and so forth by anybody else. Once you have posted an opinion or information, you cannot retract it; it is now in the public domain and you have lost control over it." (http://www.psychologists.BC.ca/Guidelines.pdf). The Canadian Bar Association's discussion Group Code of Conduct states "By posting material, the posting party represents and warrants that s/he owns copyright on such material or has received permission from the copyright owner. In addition, the posting party grants CBA and users of this discussion group/listserv the nonexclusive right and license to display, copy, publish, distribute, transmit, print and use such information or other material." http://dev.cba.org/CBA/Sections/C_ship/Code_Conduct_Listserv.aspx
Does a photographer have copyright over a digitized version of their photos and the original?
In Canada, there is a copyright on original photographs and digital versions as well. American law is not as clear on copyright for photographs (McGraw-Hill, 2009). Canadian copyright defines "photograph” as a “photo-lithograph and any work expressed by any process analogous to photography”. Legislation was amended to accommodate new ways of producing works and the definition of “photograph” to include “any work expressed by any process analogous to photography” to capture works created using new technology such as digital photos” (Scassa, 2004).
What are CLA's concerns about copyright legislation?
In the letter from the Canadian Library Association (CLA) regarding copyright the CLA expresses four concerns with the previous attempts to amend the Copyright Act:
How did Canada's Supreme court rule on downloaded music?
The thrust of the ruling made by the Supreme Court, known as Tariff 22, was based on a case between the Society of Composers, Authors and Music Publishers of Canada (SOCAN) and the Canadian Association of Internet Providers regarding ISP liability. SOCAN asked ISPs to pay them royalties for digital music files downloaded by Canadians. Its decision exempted ISPs from potential copyright liability for material circulating on their networks over which they have no authority and act only as intermediaries. Copyright liability will remain with those, including ISPs, who post or transmit copyright material without authorization. - Geist M. Supreme Court Tariff 22 Decision. http://www.michaelgeist.ca/index.php?option=com_content&task=view&id=594&Itemid=89
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