The Copyright Modernization Act adds a new subsection 27(2.1) to the Copyright Act.

The subsection simply states that, for greater clarity, the provisions of the Copyright Act dealing with secondary infringements do not apply to imported unauthorized copies of works and other subject-matter if such copies would have been excused under limitations or exceptions under the Copyright Act.

It is nothing new, since the existing Section 27(1) only applied to “a copy of a work, sound recording or fixation of a performer’s performance or of a communication signal that the person knows or should have known infringes copyright or would infringe copyright if it had been made in Canada by the person who made it.”

Secondary infringements, of course, include such acts as selling, renting out, distributing, offering for sale or rental, exhibiting in public, possessing for such purposes, and importing into Canada for such purposes.

The problem is that given the uncontrolled expansion of legalized infringements through fair dealing and otherwise, Canada may become a haven for unauthorized works that cannot be used anywhere outside Canada.

For example, many countries rightfully do not have an exception for parodies; most countries do not have broad exceptions with respect to educational use; most countries do not have exceptions with respect to non-commercial user-generated content. The new provision “clarifies” that not only unauthorized use of foreign works by Canadians would be excused if such use falls under one or another exception or limitation: it states that even copies that would be considered to infringe copyright in jurisdictions where such copies were made can still be lawfully used in Canada.

Again, this is nothing new, but the clarification makes it even more disturbing.

BOTTOM LINE: This is one of the few amendments that actually clarifies an existing provision of the Copyright Act. Still, this is very unfortunate that the new Section 27(2.1) makes it clearer that Canada finds it acceptable that it may become a market for laundering copies that are considered infringing in all other countries of the world.

The Copyright Modernization Act introduced some changes to Section 23 of the Copyright Act, the section about the terms of protection of neighbouring rights (the rights in respect of performances, sound recordings and broadcasts) in Canada.

I will compare my interpretations of the old and the new versions side by side. I will then provide some comments about the amendments.

My first general comment is that one arbitrary term is now replaced by a set of other arbitrary terms. Whether it’s 50, 99 or 500 years is largely immaterial. There really is no reason for it to be one way or the other. Just another compromise not based on any principles.

Secondly, the amended version has several references to a time “before the copyright expires”. Unfortunately, no clarification is given whether the reference is to copyright in the underlying work, the performance or the sound recording. If I were to venture a guess, I would say that the references in the new s. 23(1) are to the copyright in the performance while the reference in the new s. 23(1.1) is to the copyright in the sound recording. I see no other interpretation that would be logically consistent. Clarity, however, is not one of the strong points of these amendments.

The biggest problem that I have with amendments to Section 23 is the wording relating to the term of protection of performances.

Let me take you back to the definition of a performer’s performance:

”performer’s performance” means any of the following when done by a performer:

(a) a performance of an artistic work, dramatic work or musical work, whether or not the work was previously fixed in any material form, and whether or not the work’s term of copyright protection under this Act has expired,

(b) a recitation or reading of a literary work, whether or not the work’s term of copyright protection under this Act has expired, or

(c) an improvisation of a dramatic work, musical work or literary work, whether or not the improvised work is based on a pre-existing work;

Nothing in this definition suggests that a reference is to the first performance by a performer. I see no reason to read this definition as anything other than EACH performance of a performer.

Now, the next great question is – how do you fixate a performance that happened in the past?

Let’s go back to the amendments to Section 23(1). This time, I quote:

Subject to this Act, copyright in a performer’s performance subsists until the end of 50 years after the end of the calendar year in which the performance occurs. However,

(a) if the performance is fixed in a sound recording before the copyright expires, the copyright continues until the end of 50 years after the end of the calendar year in which the first fixation of the performance in a sound recording occurs; …

If the words “before the copyright expires” refer to the copyright in the performer’s performance, then the only way to read s. 23(1)(a) is as follows: “If the performance is fixed in a sound recording not later than 50 years after the end of the calendar year in which the performance occurs…”

So we have a performer perform an artistic work, a dramatic work, or a musical work, recite or read a literary work, or improvise a dramatic work, a musical work or a literary work, which performance is not fixed at the time when it occurs, but then somehow miraculously it becomes fixed in a sound recording some time in the future.

This makes absolutely no sense if each performance is protected separately from all previous and future performances by the same performer. However, as I mentioned before, nothing seems to suggest that only the first performance receives protection, while all others remain unprotected. Unlike sound recordings that may be reproduced, live performances are never identical.

Section 23(1)(b) makes things even worse by further modifying the term of protection of performances:

“if a sound recording in which the performance is fixed is published before the copyright expires, the copyright continues until the earlier of the end of 50 years after the end of the calendar year in which the first publication of the sound recording occurs and the end of 99 years after the end of the calendar year in which the performance occurs.”

So we have a performer perform a performance, which is fixed at some point, but the sound recording is not published until some time later – so far so good – so the term of protection is then linked to the year of the publication, not the year of the fixation. This is understandable. However, what follows makes no sense. Again, under which scenario would the publication of the sound recording occur before the expiration of the copyright in the performance, but the 50th anniversary of such publication would occur more than 99 years after the performance?

Let’s use an extreme example.

We have a sound recording of a performance that took place in 1963, which recording remained unpublished until 2012. It gets published in 2012 (i.e. within the 50 term of copyright for performances), and according to s. 23(1)(b) would be protected for 50 years following the publication. Thus, the protection would be extended up to the end of 2062, which also happens to be 99 years after the performance. There may be an extra year missing in my calculations because the calculations should actually take into account the remainder of the triggering year, but I cannot imagine that the purpose of the reference to 99 years was to cut off one year from the term of protection. And we just used the most extreme example when the publication happens just before the expiration of the initial term of protection for the performance.

One of the rules of legal interpretation is that our laws do not contain unnecessary language. But here are my two questions to the drafters of this masterpiece:

1. In which circumstances would a performance be fixed in a sound recording after the copyright expires?

2. In which circumstances would the 50th anniversary of the first publication of a sound recording fixating a performance that took place no more than 50 years before such publication occur more than 99 years after the performance took place?

BOTTOM LINE: Yes another piece of incomprehensible language that only muddies the water. If the goal was to extend protection for performances embodied in sound recordings published after the first fixation, that goal could have been accomplished in a much clearer way.

Section 22 of the new Copyright Act only has some cosmetic changes.

The Minister will have the right to grant reciprocal protection not only to countries other than the Rome Convention countries, but also to countries other than WPPT countries.

The only issue I see with this change is that the conjunction “OR” is used. Sections 22(1) and 22(2) now use the following construction to refer to countries to which reciprocal provisions may apply:

”…country other than a Rome Convention country OR a WPPT country”

Logically, a WPPT country falls within the definition of a "country other than a Rome Convention country or a WPPT country". Likewise, a Rome Convention country falls within the definition of a "country other than a Rome Convention country or a WPPT country".

In fairness, I don’t see any particular risks associated with this lack of precision, but it is still unfortunate.

BOTTOM LINE: Changes are merely cosmetic, even though the make up could have been better.

Changes to Section 20 of the Copyright Act cement the incomprehensible intention to create separate regimes of protection for performers and makers of sound recordings having connection to Canada, WPPT countries and the Rome Convention countries. More on that in my posts Changes to Section 19(1) of the Copyright Act - Good Or Bad?, New Subsections 19(1.1) and 19(1.2) of the Copyright Act - Good Or Bad? and New Sections 19.1 and 19.2 of the Copyright Act – Good Or Bad?.

Sections 19(1), 19(1.1) and 19(1.2) set out the right to remuneration “subject to subsections” 20(1), 20(1.1) and 20(1.2) respectively.

Section 20(1) sets out that s. 19(1) applies only if the maker of the sound recording was, at the date of the first fixation, a Canadian citizen or permanent resident, or a corporation with its headquarters in Canada; or if all the fixations done for the sound recording occurred in Canada. Section 20(1.1) sets out analogous requirements with respect to s. 19(1.1) with the exception that instead of connection to Canada, a connection to a Rome Convention country is required. Likewise, Section 20(1.2) sets out the requirements with respect to s. 19(1.2), however instead of connection to Canada, a connection to a WPPT country is required.

The reciprocal limitations whereby the Minister could, by a statement published in the Canada Gazette, limit the scope and duration for sound recordings having connection to a country that does not provide similar level of protection, will not cover not only the Rome Convention countries, but also WPPT countries. This is done by splitting the former s. 20(2) into s.20(2) and s. 20(2.1).

The right of the Minister to grant the right to remuneration conferred by s. 19(1.1) has been tweaked to refer to the right of remuneration available to Rome Convention countries. You may remember that unlike the right of remuneration available to Canadians and WPPT Countries, the right conferred by s. 19(1.1) through bad drafting also appears to cover the right of remuneration for making available right.

BOTTOM LINE: If one of the declared intentions of the Copyright Modernization Act had been to make the Copyright Act easier to read, understand, apply and enforce, the cross-referencing mess between sections 2.4(1.1), 19 and 20 shows a spectacular failure. Even if the result of creating separate regimes for the Rome Convention countries was intended, the language used to do so is virtually incomprehensible. Even worse, if it hand’t been the intention.

More horrible drafting here…

Buckle up as I will guide you through a maze of exceptions from exclusions.

As I wrote in my comments on section 19(1) of the Copyright Act, despite the general definition of communication to the public by telecommunication, which includes the making available right, performers and makers of published sound recordings will only have the right to equitable remuneration for communication of such published sound recordings by telecommunication, but not for the making available right.

That provision is modified in the new subsections 19(1.1) and 19(1.2) of the Copyright Act, which (if interpreted to read what they say) set forth that only performers and makers of sound recordings having connection with the Rome Convention countries will be able to enjoy the equitable right to remuneration for communication of the sound recordings to the public, including the making available right. This appears to be the exception from the rule that will exist for performers and makers having connection to Canada and the WPPT countries.

It gets better from here.

The new Copyright Act will have sections 19.1 and 19.2, which set out that for the purpose of application of Sections 19(1) and 19(1.2), if a work is made available to the public over the Internet, then, for the purposes of the equitable remuneration provisions of s. 19, such making available will be deemed to be publication of the sound recordings. (Remember, s. 19 only vests the equitable right in respect of published sound recordings?)

Now, it is easy to see that the new Sections 19.1 and 19.2 do not address sound recordings having a connection with Rome Convention countries.

So we end up with absolute insanity:

Performers and makers of sound recordings having a connection with Canada and WPPT countries will NOT have the right to equitable remuneration for the making available right, even though the making available of the sound recordings will be deemed to render such recordings “published” for the purposes of the equitable remuneration provisions.

On the other hand, performers and makers of sound recordings having a connection with Rome Convention countries WILL have the right to equitable remuneration for the making available right, even though the making available of such sound recordings will NOT be deemed to render such recordings “published”, and so sound recordings the copies of which that have not been made available to the public other than through communication to the public by telecommunication, will be disqualified.

It’s great to have a “modernized” Copyright Act! If you found my explanations too convoluted, I don’t blame you. The provisions hardly make any sense.

So, let’s recap:

For Canada and WPPT countries:

– making of the sound recordings available through the Internet qualifies them for equitable remuneration;

– the equitable remuneration does not cover cases when the sound recordings are made available through the Internet.

For the Rome Convention countries:

– making of the sound recordings available through the Internet does not render them “published” for the purpose of equitable remuneration;

– the equitable remuneration covers cases when the otherwise published sound recordings are made available through the Internet.

If there is a method to this madness, I surely am incapable of comprehending it.

Are you?