The Copyright Modernization Act, previously known as Bill C-11 expanded the scope of Section 29 by adding “education” to the list of purposes in respect of which fair dealing does not infringe copyright.

I find this problematic for the simple reason that it is not clear what “education” is supposed to mean.

The current Copyright Act had already contained Section 29.4 that created a specific exception for educational institutions or “persons acting under the authority of educational institutions for the purposes of education or training”. Both the existing and upcoming revisions of the Copyright Act only refer to education in connection with “educational institutions”. Section 29 is now the only exception.

One of the rules of legislative interpretation is that the Parliament does not include unnecessary or meaningless language in its statutes and that it does not make the same point twice.

If certain unauthorized acts of educational institutions and of persons authorized by such educational institutions were already exempted, the question then becomes, what does the addition of the word “education” really add to the Copyright Act?

If it is limited to educational institutions, what is the benefit of adding the word to a section that has nothing to do with educational institutions?

If it’s not about educational institutions, is it about general education, which is routinely defined as “the act or process of imparting or acquiring particular knowledge or skills”? This definition really is so broad that it would apply to almost any human activity. By uploading a copy of a new movie, the uploader may be said to impart knowledge about that movie; by reproducing a book and selling copies of it at 25% of the price, the unauthorized “publisher” may be said to impart knowledge contained in the book.

The original exception targeting educational institutions could be defended because it was based on the presumption that educational institutions are mature enough not to engage in piracy. Ironically, given the number of professors, including professors of law, who believe that copyright should not prevent unauthorized use of copyrighted works as long as such use “benefits the public”, this assumption seems less reasonable today.

If any use may be covered by the purpose of education, then the only qualifying criteria remains whether the use was fair. While some may say that this brings Canada’s fair dealing closer to the American fair use, the problem is that, unlike the U.S., we still have pages and pages of specific exceptions and purposes, which makes meaningful application of the Act substantially more difficult.

In my paper on international treatment of parodies in copyright laws of various countries, I outlined that there are three groups of countries in how they treat exceptions from the general rule that no one can use works protected by copyright without consent of the copyright owner:

1. countries that have a closed list of exceptions, outside which any unauthorized use is considered an infringement;

2. fair use countries, where fairness of use is the only thing that matters, and the purposes are only listed for the sake of example; and

3. fair dealing countries, where on top of a list of exceptions the courts need to consider whether the use for a particular purpose is fair.

I came to the conclusion that fair dealing offers the worst of both worlds – it lacks the predictability of systems with a closed list of exceptions, yet it does not offer the flexibility of fair use systems.

Adding a bunch of new categories, regardless how broad, does not really solve the problem, does it?

BOTTOM LINE: Yet another amendment that does not seem to make any sense. If “education” refers to “educational institutions”, then the amendment is redundant. If it refers to any education, then the amendment is overly broad.

This is to let you know that you can now view Canadian Copyright, Trademarks and Patent Regulations on our website:

Copyright Regulations

– Book Importation Regulations

– Certification of Countries Granting Equal Copyright Protection Notice

– Cinematographic Works (Right to Remuneration) Regulations

– Definition of “Small Cable Transmission System” Regulations

– Definition of “Wireless Transmission System” Regulations

– Educational Program, Work and Other Subject-matter Record-keeping Regulations

– Exceptions for Educational Institutions, Libraries, Archives and Museums Regulations

– Limitation of the Right to Equitable Remuneration of Certain Rome Convention Countries Statement

– Local Signal and Distant Signal Regulations

– Programming Undertaking Regulations

– Regulations Defining “Advertising Revenues”

– Regulations Establishing the Period Within Which Owners of Copyright not Represented by Collective Societies Can Claim Retransmission Royalties

– Regulations Prescribing Networks

– Copyright Regulations

Industrial Designs Regulations

– Industrial Design Regulations

Patent Designs Regulations

– Patented Medicines (Notice of Compliance) Regulations

– Patented Medicines Regulations

– Use of Patented Products for International Humanitarian Purposes Regulations

– Patent Rules

In the pre-amendments version of the Copyright Act, the heading of Section 29 read simply “Research or private study”.

The whole section read as follows:

”Fair dealing for the purpose of research or private study does not infringe copyright.”

The heading for the same Section 29 of the ”modernized” version of the Copyright Act reads “Research, private, study, etc.”

In addition to research and private study, the section will legitimize unauthorized use of copyrighted works for the purpose of education, parody and satire. I will comment on each of these individually. However, I would like to make two general comments about the structure of this Section (both pre- and post- amendments) and also about the changes made to the heading.

Let’s start with the heading. It used to be the heading for a section that was clearly designed to create a limited exception. By adding the “etc.” at the end, the Parliament has signaled the decision to turn this section into a one-size-fits-all dump for anything that didn’t find its place elsewhere. While a general umbrella section could add structure to the fair dealing provisions of the Act, there was no legal or logical reason to merge the parody exception with the private study exception.

As for the general language of the fair dealing provisions in the Canadian Copyright Act, there is a fundamental difference in how different countries word the introductory language for the copyright exceptions.

For example, the general formula in Canada is:

“Fair dealing for the purpose of [list of purposes] does not infringe copyright”.

It is very similar to the one used in the U.K.:

“Fair dealing with a work for the purpose of [list of purposes] does not infringe any copyright in the work provided that [list of conditions]”.

In Australia, the scheme is:

“A fair dealing with a work does not constitute and infringement of copyright in the work if it is for the purpose of [list of purposes]”.

In France, the wording is

“The author may not prohibit [list of specific uses]”.

The Dutch Copyright Act introduces the exception as follows:

“[list of specific uses] shall not be regarded as an infringement of copyright, provided that [list of conditions]”.

In Russia, the wording is

“It shall be allowed, without the copyright owner’s consent and without payment of any remuneration, to [list of specific uses]”

In the United States, the wording is

“Notwithstanding the provisions of sections [relating to the exclusive rights of copyright owners], the fair use of a copyrighted work, including such use by [list of specific uses] for purposes such as [list of purposes], is not an infringement of copyright.”

As all fair dealing countries, the Canadian wording covers any use, as long as that use is fair and if it is for an enumerated purpose. I contend that the Canadian version potentially creates the broadest exception and thus constitutes the greatest encroachment of copyright – simply because it has so few internal constraints in the general language of the exception.

The amendment that turns a specific case of fair dealing into an umbrella clause that will house exceptions that have very little to do with one another (for example, private study and satire are completely different purposes) is a dangerous step in subjecting the interests of copyright owners to the whims of the public.

BOTTOM LINE: It is a completely unjustified merging of unrelated exceptions under the umbrella of a single provision. The heading of a section relating to stripping copyright owners of their exclusive rights should never end with “etc.”

One of the apparent attempts to modernize the Copyright Act is the addition of new Sections 27(2.3) and 27(2.4). These section are designed to outlaw services that encourage piracy over the Internet. Usually, these provisions are referred to as anti-torrent and anti-file-sharing provisions.

Section 27(2.3) contains the general rule:

”It is an infringement of copyright for a person, by means of the Internet or another digital network, to provide a service primarily for the purpose of enabling acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.”

Unfortunately, the wording of the rule is not very clear as to the scope of its application.

Let’s break it down into pieces:

– A person will be deemed to infringe copyright

– if that person provides a service by means of the Internet

– if such service is provided primarily for the purpose of enabling acts of copyright infringement

– if an actual infringement of copyright occurs as a result of the use of that service.

What remains unclear is whether “an actual infringement of copyright” and “it is an infringement of copyright” must refer to the same copyright owner.

Here is an example.

What if a person provides a service primarily for the purpose of enabling acts of copyright infringement in respect of works of copyright owners A, B, and C. The works in respect of which the service is provided are respectively A1, A2, A3, B1, B2, B3, C1, C2 and C3.

What if there has only been “an actual infringement of copyright” in respect of the work B3?

Who can sue the service provider? Will it be only copyright owner B because it was his work in respect of which there was an actual infringement? Or can this also be A and C, because the service is provided for the purpose of enabling acts of copyright infringement and their works happen to be available through that service? Or can this also be D, Y and Z, simply because the service is provided for the purpose of enabling acts of copyright infringement?

If the universe of plaintiffs is limited to B, the next question is whether B can sue the service provider in respect of all works or only B3?

As I wrote in my comments on the new Section 27(2.2), there is no such thing as a copyright infringement in general, there must be a copyright owner whose copyright is being infringed.

There are two possible interpretations here:

1. Section 27(2.3) sets out that in addition to the general rule that the copyright owner should sue the actual infringer, the copyright only can also sue the service provider, but only if that service provider has truly misbehaved by setting up a service primarily for the purpose of enabling acts of copyright infringement. In other words, if the service is not provided primarily for the purpose of enabling acts of copyright infringement, then the copyright owner cannot sue the service provider even with respect to the work that had actually been infringed via that service. However, if the service is provided for such a lowly purpose, then the copyright owner may, but only with respect to the work that had actually been infringed, also name the service provider as a defendant.

2. Section 27(2.3) sets out that one actual infringement is merely a trigger that attracts general liability of the service provider to ANY copyright owner whose works may happen to be infringed via the service.

The second interpretation appears to be overly broad. Moreover, its usefulness would be questionable since copyright owners whose works have not been actually infringed would hardly have suffered any damages in the result of the provision of such services, and according to s. 38.1(1.1), statutory damages would be unavailable to such copyright owners.

On the other hand, the first interpretation doesn't really add any meaningful remedies to copyright's owners arsenal. In fact, it only narrows them down by defining what copyright owners would otherwise refer to as infringement of their exclusive right to “authorize” some of the acts that only the copyright owner has the right to do. Therefore, this provision does very little, if anything, to provide to copyright owners additional protection against services primarily designed to enable acts of copyright infringement.

Section 27(2.4) contains list of factors (presumably, non-exhaustive) that courts may consider in determining whether a service provider has infringed copyright. There are a total of 6 factors:

1. whether the service provider marketed the service as one that could be used to enable acts of copyright infringement;

2. whether the service provider had knowledge of a significant number of actual infringements;

3. whether the service has significant non-infringing uses;

4. whether the service provider can and does in fact act upon reported acts of copyright infringement;

5. whether the service provider benefits from the copyright infringement;

6. whether the service would be economically viable if no acts of infringement were carried out through it.

These factors will allow the courts to recreate a good picture of the service provider’s role in the copyright infringement.

The problem is that once the court recognizes that the service provider is up to no good, there aren’t many new tools that the copyright owner would have against such a service provider.

BOTTOM LINE: Essentially the new provisions clarify that if you have created a service that is primarily designed to enable acts of copyright infringement (for example, you have a torrents engine), then as long as end-users are using your service to infringe upon someone’s copyright, then your acts are deemed to be unlawful authorization and thus copyright infringement. Because of an attempt to use overly broad language (presumably, with a purpose to catch more infringements), the Parliament had to balance it with planting several restrictions that severely limit the value of the new sections.

This is another section of the amended Copyright Act that is written in a language deliberately overcomplicated to such an extent that it would obfuscate even the most law-abiding citizens.

Essentially it introduces secondary infringement liability for certain uses of what is defined as a “lesson”.

Let’s start with this definition. There is no definition of a “lesson” in subsection 27(2.2). Such definition is found in subsection 30.01(1). The definition in subsection 30.01(1) starts with the following words: “For the purposes of this section…”

Question: what happens if a definition is given for the purposes of one section but is referred to in a different section? Was it really that difficult to place the definition of a lesson where it belongs – in the Definitions section (s. 2)?

Furthermore, here’s the full definition:

”For the purposes of this section, ‘lesson’ means a lesson, test or examination, or part of one, in which, or during the course of which, an act is done in respect of a work or other subject-matter by an educational institution or a person acting under its authority that would otherwise be an infringement of copyright but is permitted under a limitation or exception under this Act.”

Translating this into human-readable language, the term “lesson” only refers to such features of the educational process that involve unauthorized use of other people’s works, which use would have been deemed infringing if not for some limitations or exceptions found elsewhere in the Copyright Act. In other words, “lesson” does not cover lessons, tests, or examinations during which no unauthorized use of copyrighted works occurs.

Now, let’s go back to s. 27(2.2). The opening paragraph reads:

”It is an infringement of copyright for any person to do any of the following acts with respect to anything that the person knows or should have known is a lesson, as defined in subsection 30.01(1), or a fixation of one:”

Before I go to the list of the acts that are deemed to be an infringement of copyright, my first question is, it is an infringement of WHOSE copyright and in WHICH work? Are these acts infringing the copyright in the works that have been used without authorization to make up the “lesson”, or does section 27(2.2) refer to the entire lesson as a work of copyright presumably owned by the educational institution? Who can claim this secondary infringement – authors of the works used by educational institutions without authorization or the educational institutions themselves?

In a separate post on the new Section 30.01, I will provide my comments regarding the added exceptions and limitations relating to a “lesson”. For now, I will simply mention that the overall idea of that section is to allow educational institutions and their students certain unauthorized uses of copyrighted works so long as they occur as part of the “lesson”.

So we get this wonderful circular logic: a “lesson” is something that contains what would have been counterfeit works had there not been provisions in the Copyright Act that would render the use of such works non-infringing. It is not an infringement of copyright for the educational institution, the teachers or the students to do certain acts in respect of the “lesson”. And it is a secondary infringement of copyright to do certain other acts in respect of the “lesson”.

Typically, the idea of the secondary infringement of copyright presupposes that there is also the primary infringement. Section 27(2.2) virtually copies the previously existing section 27(2), which lists certain acts that are deemed to constitute secondary infringement of copyright if such acts are done with respect to a work or other subject-matter that “the person knows or should have known infringes copyright”.

By definition, inclusion of works in the “lesson” does not infringe copyright. If there is no primary infringement, how can there exist a secondary infringement?

As to the list of what constitutes secondary infringement, the first 4 items on the list are only marginally different from the wording used in Section 27(2), and refer to selling, renting out, distributing, exposing, offering for sale, exhibiting in public, and possessing for the purpose of doing any of the above.

There are also two added acts that are deemed secondary infringements with respect to a “lesson”. The first is communication by telecommunication to anyone who is neither a student enrolled in the course of which the lesson forms a part nor anyone else authorized by the educational institution. The second added act is the circumvention or contravention of (a) measures to destroy any fixation of the lesson; (b) measures to limit the communication by telecommunication to students and other authorized persons; and (c) measures to prevent students from fixing, reproducing or communicating the lesson beyond what is allowed under Section 30.01.

There is obviously a significant number of uses that do not fall within the scope of what is authorized under Section 30.01, yet do not fall within the scope of what is deemed to constitute a secondary infringement under Section 27(2.2). So the interpretation question is then, if going beyond what is allowed by Section 30.01 constitutes a primary infringement of copyright, why was there the need to duplicate the provisions of Section 27(2) in Section 27(2.2)? Alternatively, if Section 27(2.2) provides an exhaustive list of what can be deemed infringing in respect of a lesson, what is the legal status of the acts that are neither authorized in Section 30.01 nor prohibited in Section 27(2.2)?

The only reason why we will have such incomprehensible language in the Copyright Act is the quest for the compromise without an understanding of underlying reasons for the existence of copyright, in the name of securing an impossible balance of interests between copyright owners and those who care to use their works.

BOTTOM LINE: This is either a horribly inefficient way to say the right thing, or a convoluted way to say a horrible thing. Either way, this is BAD.