The new Canadian Copyright Act has a clarified and expanded section 29.5 relating to performances made or authorized by educational institutions.

The former version of the Copyright Act contained a closed list of three instances when educational institutions could perform protected works without first obtaining permission from the copyright owner. They could (1) arrange live performances of protected works by their students; (2) play back sound recordings; and (3) organize public showings of broadcasts.

The new version does two things.

On the one hand, with respect to the playback of sound recordings, it limits the exception to legitimate sound recordings only. The added wording in the Act is “as long as the sound recording is not an infringing copy or the person responsible for the performance has no reasonable grounds to believe that it is an infringing copy.”

On the other hand, the new version adds another instance which will now be excused under this exception, namely it allows educational institutions to also demonstrate movies, as long as they use a legitimate copy to do it.

Copyright is a bundle of rights, and just because you buy a legitimate copy of a sound recording or a movie, does not give you the right to invite the public and conduct public demonstrations or listening parties. This is a separate right that has just been taken away from the copyright owners in favour of educational institutions.

BOTTOM LINE: One arbitrary construction has just been replaced by another arbitrary construction. The former version of the Act allowed some unauthorized acts which did not cover cinematographic works, while the new version further extends to such unauthorized use as well. Just as there was no moral or legal reasons to exclude cinematographic works from the application of the exception, there are no moral or legal reasons to include them now.

In my opinion, the real problem is not that educational institutions are going to impoverish copyright owners by not paying royalties for the use of their works, performances, sound recordings and broadcasts. The real problem is that students who attend these educational institutions are receiving the message that it’s ok to use copyrighted works without asking permission and without paying royalties. They are given a life lesson that copyright owners are a hindrance that a bunch of politicians and activist law professors gloriously help them overcome. These students will grow to expect to be entitled to use other people’s intellectual property whenever they feel like it – simply because it benefits them and the “public”.

This, I maintain, is the true reason why activist professors are so adamant about the education exceptions. They know that one day, some of the students will be the new politicians who will gladly pick up where the current generation has left off the Copyright Act and create more new exceptions – to further spread this sense of entitlement.

It’s a vicious circle, if you ask me.

After the publication of the Governor General Order in Council in the Canada Gazette, most parts of the Copyright Modernization Act are now in force.

As I explained after the Order in Council was posted online, the provisions relating to the adoption by Canada of the WIPO treaties will come into force when these treaties are officially in force in Canada.

The “notice and notice” provisions for ISPs (Sections 41.25, 41.26, and 41.27(3)) will not come into force until after regulations are adopted in this regard.

The Copyright Modernization Act introduced several changes to Section 29.4 of the Copyright Act.

This exemption used to only apply to:

1. manual reproductions of a work on a dry-erase board, flip chart or other similar surface intended for displaying handwritten material; and

2. copies of a work used to project an image of that work using an overhead projector or similar device.

The changes introduced to the section are very significant, since the amended exemption applies to ANY reproduction or any other act necessary to display works otherwise protected by copyright.

Naturally, this changes the whole purpose of the exemption. What used to be a reasonably limited exception that had virtually no effect on the market for the work is now so wide that it is very difficult to understand the meaning of subsection 29.4(3). The purpose of that subsection was to exclude from the operation of the exemption works that are “commercially available in a medium that is appropriate for the purposes referred to” in subsection 29.4(1). What this used to mean is that if one could purchase on the Canadian market (or obtain a license from a collective society to use) images of the works for overhead projectors or works used for a test or examination (as per subsection 29.4(2)), then the exemption did not apply, and the educational institutions had to buy or get a license to use the work.

After the expansion of the scope of the exception in subsection 29.4(1) to ANY reproduction, it appears that the exemption would only apply unless the work is commercially available “in a medium that is appropriate for the purpose” of education or training. Does the exception apply to e-books and PDFs if the educational institution decides that for the purposes of education or training it would be desirable to distribute electronic copies of a textbook which only exists in the paper form? Does it apply to course packs? Does it apply to AVI versions of films that are only commercially available on DVDs and Blurays? Does it apply to JPG versions of paintings that are not commercially available as digital files?

Anything can be a medium appropriate for the purpose of education!

Another question will be about the interrelationship of this amended section and the new batch of exceptions relating to unauthorized use of works in relation of “lessons”. The lessons exceptions require that royalties be paid for digital reproduction of lessons. Section 29.4 contains no such requirement. It sets forth an absolute defence that is not subject to payment of any royalties. If it is not meant to apply in the circumstances to which the lessons exception applies, the question is “why not?”. If Section 29.4 applies in these circumstances, the question is “why would an educational institution want to use the lessons exception that requires payment of royalties, when it can get off the hook using the general educational institutions exception?”

Even worse, unlike new sections 29.22 – 29.24, Section 29.4 does contains no limitations relating to TPMs. So even if a work contains TPMs but is not available on a “medium appropriate” for the purpose of education, it appears that the TPMs can be circumvented.

BOTTOM LINE: The new wording of the exception is unreasonably broad and inconsistent with the rest of the Act.

I know I sound like a broken record with some of these comments, but really, one of the purposes of the Copyright Modernization Act was to simplify the life of consumers by allowing them many additional ways they can use copyrighted works without permission. Unfortunately, the Act contains so many inconsistencies and so much inaccurate wording that it will be years before the meaning of these new provisions will be clarified by the courts (I sincerely pity the judges who will hear the first cases on interrelationship between the overlapping exemptions).

As Ayn Rand wrote, “An undefineable law is not a law, but merely a license for some men to rule others.” I don’t know a single user who would understand the new rules with any degree of precision by reading the Act. Lawyers’ opinions on what these rules mean are just that, opinions.

The purpose of any law is to create certainty that specific behaviour will result in specific consequences. The Copyright Modernization Act has certainly failed to achieve it.

Just as in the case of the new time-shifting Section 29.23, the idea behind the backup copies exception seems very reasonable for most business models today. Most, but not necessarily all. Again, I would prefer it to be worded in the form of a rebuttable presumption. Just because most copyright owners would not prohibit end customers from creating backup copies of legitimately purchased originals does not mean that the law should take away that right from copyright owners.

One more concern I have with this section is the extent that it overlaps with the reproduction for private purposes exception set out in Section 29.22.

Essentially, the private purposes exception says that as long as you own a legitimate copy of a copyrighted work, you can reproduce it for your “private purposes”, if you do not circumvent TPMs and don’t give the copy away. The backup copies exception says that as long as you own or have a license to use a legitimate copy of a copyrighted work, you can reproduce it for backup purposes, if you do not circumvent TPMs and don’t give the copy away.

Again, I will ask the question, if “private purposes” do not include research, private study, education, parody, satire, criticism, review, news reporting, creation of non-commercial user-generated content, time shifting (Section 29.23), or backup – what are these mysterious private purposes?

In other words, what is the added benefit of inclusion of Section 29.24 (the backup copies exception) when Section 29.22 already exists? What does it cover that the private purposes exception does not?

Yes, these two sections use slightly different language to express two concepts of which one appears to be completely consumed by the other.

The only meaningful answer to that question that I can find is that the backup copies exception stipulates that if the original copy is “lost, damaged or otherwise rendered unusable”, then one of the backup copies automatically obtains the status of a legitimate original from which further backup copies can be made.

In all honesty, I do not understand the big idea behind this duality, other than to provide redundant guarantees to users that they can safely disregard the rights of copyright owners in more than one way.

BOTTOM LINE: This section looks like overkill to me.

I don’t see how it adds anything substantive to what is already covered by the private copying exception.

Do you?

On October 25, 2012, the Privy Council set out when the amendments to the Copyright Act, otherwise known as the Copyright Modernization Act, will come into force.

Most amendments will be in effect after the notice is published in the Canada Gazette.

The provisions linked to the adoption by Canada of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) will come into force when the treaties come into force in Canada.

The “notice and notice” provisions relating to ISP providers in Canada (Sections 41.25, 41.26, and 41.27(3)) will not come into force until a later unspecified date, which will probably happen after regulations are adopted in this regard.

The full text of the Order is displayed below. More section-specific comments to follow.