The Two Weeks That Changed Canadian Copyright michael geist canada research chair in internet and e-commerce law university of ottawa

Years

14 Days

Canada = most copyright user rights friendly country in the world

June 29 th – July 12 th, 2012

June 29 th Bill C-11 Receives Royal Assent

July 12th SCC Releases Copyright Pentalogy

July 4 th European Parliament Rejects ACTA

What happened?

How did it happen?

June 29 th, 2012

Issue2005 (C-60) Fair DealingNo Consumer Exceptions (time shifting, format shifting, backup copies) No Internet Exceptions (Internet content, user generated content exception) No Statutory Damages ReformNo Digital LocksYes Internet Service Provider Safe Harbour Yes

books

Issue2005 (C- 60) 2008 (C-61) Fair DealingNo Consumer Exceptions (time shifting, format shifting, backup copies) No Internet Exceptions (Internet content, user generated content exception) No Statutory Damages ReformNoMinor Digital LocksYes Internet Service Provider Safe Harbour Yes

Issue2005 (C-60) 2008 (C-61) 2010 (C-32) Fair DealingNo Yes Consumer Exceptions (time shifting, format shifting, backup copies) No Yes Internet Exceptions (Internet content, user generated content exception) No Yes Statutory Damages ReformNoMinorYes Digital LocksYes Internet Service Provider Safe Harbour Yes

July 4, 2012

July 12, 2012

1990

Bishop v. Stevens This distinction between the right to perform and the right to record a work is unsurprising in light of the object and purpose of the Act. As noted by Maugham J., in Performing Right Society, Ltd. v. Hammond's Bradford Brewery Co., [1934] 1 Ch. 121, at p. 127, "the Copyright Act, 1911, was passed with a single object, namely, the benefit of authors of all kinds, whether the works were literary, dramatic or musical".

2002

Theberge “Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.”

2004

CCH “the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.”

2012

ESAC v. SOCAN “The principle of technological neutrality requires that, absent evidence of Parliamentary intent to the contrary, we interpret the Copyright Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user. To do otherwise would effectively impose a gratuitous cost for the use of more efficient, Internet-based technologies.”

SOCAN v. Bell “Limiting research to creative purposes would also run counter to the ordinary meaning of "research", which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework..”

Alberta v. Access Copyright “…they study what they are told to study, and the teacher's purpose in providing copies is to enable the students to have the material they need for the purpose of studying. The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study. Instruction and research/private study are, in the school context, tautological.”

Doesn’t End There…

Canadian Copyright 2013

Fair dealing as a users right

Canadian Copyright 2013 Fair dealing as a users right Expanded fair dealing purposes

Canadian Copyright 2013 Fair dealing as a users right Expanded fair dealing purposes Notice-and-notice

Canadian Copyright 2013 Fair dealing as a users right Expanded fair dealing purposes Notice-and-notice User Generated Content Exception

Canadian Copyright 2013 Fair dealing as a users right Expanded fair dealing purposes Notice-and-notice User Generated Content Exception Cap on non-commercial statutory damages

Canadian Copyright 2013 Fair dealing as a users right Expanded fair dealing purposes Notice-and-notice User Generated Content Exception Cap on non-commercial statutory damages Internet exception for publicly available materials

Canadian Copyright 2013 Fair dealing as a users right Expanded fair dealing purposes Notice-and-notice User Generated Content Exception Cap on non-commercial statutory damages Internet exception for publicly available materials Technological neutrality

Canadian Copyright 2013 Fair dealing as a users right Expanded fair dealing purposes Notice-and-notice User Generated Content Exception Cap on non-commercial statutory damages Internet exception for publicly available materials Technological neutrality Shifting – format shifting, time shifting, backup copies

Canadian Copyright 2013 Fair dealing as a users right Expanded fair dealing purposes Notice-and-notice User Generated Content Exception Cap on non-commercial statutory damages Internet exception for publicly available materials Technological neutrality Shifting – format shifting, time shifting, backup copies Expansive approach to research & education

Canadian Copyright 2013 Fair dealing as a users right Expanded fair dealing purposes Notice-and-notice User Generated Content Exception Cap on non-commercial statutory damages Internet exception for publicly available materials Technological neutrality Shifting – format shifting, time shifting, backup copies Expansive approach to research & education Rejection of criminalization of copyright

Canadian Copyright 2013 Fair dealing as a users right Expanded fair dealing purposes Notice-and-notice User Generated Content Exception Cap on non-commercial statutory damages Internet exception for publicly available materials Technological neutrality Shifting – format shifting, time shifting, backup copies Expansive approach to research & education Rejection of criminalization of copyright Copyright term

Canadian Copyright 2013 Fair dealing as a users right Expanded fair dealing purposes Notice-and-notice User Generated Content Exception Cap on non-commercial statutory damages Internet exception for publicly available materials Technological neutrality Shifting – format shifting, time shifting, backup copies Expansive approach to research & education Rejection of criminalization of copyright Copyright term Digital library loans

Canadian Copyright 2013 Fair dealing as a users right Expanded fair dealing purposes Notice-and-notice User Generated Content Exception Cap on non-commercial statutory damages Internet exception for publicly available materials Technological neutrality Shifting – format shifting, time shifting, backup copies Expansive approach to research & education Rejection of criminalization of copyright Copyright term Digital library loans Privacy

Canadian Copyright 2013 Fair dealing as a users right Expanded fair dealing purposes Notice-and-notice User Generated Content Exception Cap on non-commercial statutory damages Internet exception for publicly available materials Technological neutrality Shifting – format shifting, time shifting, backup copies Expansive approach to research & education Rejection of criminalization of copyright Copyright term Digital library loans Privacy Crown copyright licence

Why it happened?

Politics

Trade Pressure

Personalities

McLachlin & Abella

Clement & Moore

Bulte & Angus

Public

Social Media

Copyright Scholars

Concerned Canadians

90,000

8,000

2

@mgeist