As in the case of the new Section 29.21, Section 29.22 of the amended Copyright Act is placed in its own part named “Reproduction for Private Purposes”.

This is yet another exception that does not require a fair dealing analysis, since the introductory wording for the exception is plain and simple: “It is not an infringement of copyright for an individual to reproduce a work or other subject-matter or any substantial part of a work or other subject-matter if…”, followed by 5 conditions and 2 limitations.

The conditions are as follows:

1. The source copy “is not an infringing copy”. This means that the exception applies not only to properly authorized copies but also to copies that are “not infringing” due to the numerous exceptions.

2. The individual (and it is important to note that the exception only applies to individuals) legally obtained the source copy and owns or is authorized to use the physical medium / device / digital memory on which the source work or other subject-matter is reproduced. The term “obtained” expressly excludes borrowing or renting. The reference to ownership or authorization to use the medium, device or digital memory is important because it means that no authorization to use the actual work or other subject-matter is required for this exception to apply.

3. The individual did not circumvent or cause to be circumvented any technological protection measures in order to make the reproduction. I will discuss the TPMs in future posts.

4. The individual does not give the reproduction away. This wording is unfortunate, since it is not clear whether “giving away” also includes “renting out” or “sharing”.

5. The reproduction is used only for the individual’s private purposes. This one should raise a lot of eyebrows. First of all, in light of this condition it is not clear why the previous (“no giving away”) would be necessary. Isn’t is implicit in the words “private purposes” that any use by anybody other than the individual who made the reproduction would not qualify as “private purposes”? And if certain uses by others could still qualify as “private purposes” (so as to require the “no giving away” condition), what is the scope of “private purposes”?

Moreover, same as with the user-generated content, it is not clear how this exception is supposed to coexist with other exceptions.

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), backup (Section 29.24) – what are these mysterious private purposes? And if some or all of these specific purposes fall under the general umbrella of “private purposes” – who gets to choose which exception rules should apply? If a user gets a “Get Out of Jail Free” card in case any of the overlapping exceptions should fit (and this appears to be the case), then copyright owners have been dealt a really bad hand.

Another overlap relates to one of the two limitations, namely the limitation pertaining to the type of the medium onto which the private reproduction is being made. Along with the new Section 29.22, the Copyright Act will continue to have Section 80 (have I mentioned the numbering problem?), which deals with “copying for private use”.

Section 80 allows reproduction of a musical work, a performance or a sound recording onto an audio recording medium for the private use of the person who makes the copy, unless the copying is done for the purpose of selling, renting out, distributing, communicating to the public, or performing in public.

Subsection 29.22(3) states that subsection 29.22(1) (i.e. the subsection that establishes the “reproduction for private purposes” exception) does not apply if the reproduction is made onto an audio recording medium, in which case the exception would be triggered by Section 80. The exception established by Section 80 is much broader, and it contains very few limitations.

Section 29.22 does not purport to limit the generality of the exception established by Section 80. To the contrary, it adds a limited exception with respect to all reproductions for private purposes that would not have otherwise been covered by Section 80.

The second limitation in Section 29.22(4) is a requirement for the individual to destroy all reproductions of the source copy before the individual “gives away, rents or sells” the source copy. Otherwise, the exception does not apply.

BOTTOM LINE: In fact, this exception is not entirely unreasonable – aside from it being poorly worded and overlapping with other existing exceptions. It would be justified in most circumstances.

However, my approach to most copyright exceptions is that they should not exist in the form of absolution, they should create a strong presumption, which may still be overridden by copyright owners. I see no reason why a copyright owner should not be allowed to prevent his works to be carried by libraries. Granted, an absolute majority of copyright owners would not have any problems with libraries or legitimate private copies, but there is really no reason why an expressed will of the copyright owner should not trump the default presumption set out in a particular exception.

The only time when, in my opinion, there should exist an absolute right to use a work without seeking consent is in the case of true criticism targeting the work being criticized. Not because it’s a “user right”, but because often the only way to meaningfully express an opinion about a work is to make references to that work. As rightly cited in Compagnie Générale des Établissements Michelin-Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), [1997] 2 FC 306, freedom of expression

”is a freedom to express and communicate ideas without restraint, whether orally or in print or by other means of communication. It is not a freedom to use someone else’s property to do so. It gives no right to anyone to use someone else’s land or platform to make a speech, or someone else’s printing press to publish his ideas. It gives no right to anyone to enter and use a public building for such purposes.”

Not every expression should trump copyright. It is only the expression about the work being criticized that should be able to trump the copyright owner’s wish to not be criticized.

Of course, there still remains the usual big question as to whether the exception trumps a contract or a contract trumps the exception. In other words, if I legally download a copy of the work by accepting the term that I will not, in any circumstances make any reproductions of the work, does the exception give me a positive right to reproduce, or it only takes away from the copyright owner the remedy pertaining to copyright infringement, without taking away the remedy flowing out of breach of contract? The language of the exception suggests the latter. On the other hand, the spirit of the so-called “user rights” may suggest that the “user rights” to use others’ property may get protection even in cases where there is an express agreement that users will not be making certain uses of the work.

The abundance of new unjustified exceptions should lead copyright owners to go back to the underlying principles of copyright, namely that copyright is about protecting the copyright owner’s ability to enter into voluntary contracts without getting ripped off. The exceptions are intended to complicate the life for copyright owners, but there is still sufficient protection set forth by the Copyright Act for copyright owners to bind the original purchaser of their works into enforceable contracts.

The solution to combat unjustified exceptions is to draft agreements in a language that would expressly trump the exceptions – through contract law.