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.

Another new copyright exception that does not require the fair dealing analysis is contained in Section 29.23 of the amended Copyright Act. This exception legalizes unauthorized reproduction of broadcast copyrighted works for the purpose of “listening to or viewing” them later. This exception is normally referred to as the “time shifting” exception.

Again, it sounds like a good idea, but I see three issues with it.

First of all, this is an attempt to legislate a business model. Granted, today it seems that time-shifting is as natural as using a library to read a book. But really, just because most viewers and listeners expect to be able to time-shift and because most broadcasters recognize the value of this business model, it does not mean that everyone should be forced into it. My solution would be, as in the case of libraries and most other exceptions, to craft the exception in the form of a rebuttable presumption. Unless a broadcaster expressly states that they do not agree to their broadcasts being recorded for time-shifting purposes, time-shifting should be allowed. Indeed, this is the purpose of all presumptions – to establish what the default behaviour is and to allow all those who disagree to craft their own rules. The presumption would be justified simply because otherwise a generally accepted practice results in mass copyright infringement, and it does not make sense to force the majority of broadcasters who agree with this practice to have to explicitly ALLOW time-shifting in order not to criminalize their listeners and viewers.

The section does contain a provision that removes from the scope of its application broadcasts protected by technological protection measures (TPMs). But this, in turn, puts the burden on the broadcasters not simply to clearly state that they do not wish their broadcasts to be recorded for the purpose of time-shifting, but to actually integrate the TPMs into their broadcasts.

The second problem is with the wording of the section where it lists the conditions that trigger the exception. One of the conditions is set forth in paragraph 29.23(1)(d), which states that the exception only applies if the individual who makes the recording “keeps the recording no longer than is reasonably necessary in order to listen to or view the program at a more convenient time.” What it does not say is whether “a more convenient time” refers to one time only. The exception does not expressly require that the individual destroy the recording immediately after he listened to or viewed the recording. For some, “a more convenient time” would be “once a year, every year”.

One other thing to note here is that the exception will not apply in respect of on-demand services. In fairness, I don’t understand this limitation. Why is it OK to record something that is being broadcast without any interaction with the viewer or listener, but it is not OK to record something for which the viewer or listener has likely paid but is then unable to fully enjoy the purchase for some reason?

BOTTOM LINE: Generally, this exception seems to make sense – but only because it is a generally accepted business model today. It would have been a perfectly acceptable clause if it were drafted in the form of a presumption, and if it was polished a little to deal with the issue of the number of times the recorded broadcasts can be viewed or listened to. Conceptually, there is no reason to punish general broadcasters with the exception while letting the on-demand services off the hook.

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.