Spotlight On: Canada's New 2014 Copyright Law - "Notice And Notice"
By Rachael O'Halloran
Published July 17, 2014
Canada's Copyright Laws
Copyrights, In General
Copyrights come under the heading Intellectual Property Law (IP Law) in all countries.
I received a question the other day asking "how did Intellectual Property got its title? Does that mean every work in intellectual?" So, here is the simplest way to show how the title breaks down:
- any work (a work is defined in the copyright description) that you create from your own brain is considered "Intellectual" (the work, not you!)
- the actual tangible work is considered a "Property"
- because YOU created it, it becomes "your Property"
- the laws to protect each are called Intellectual Property.
Given the question was possibly facetious, equally so was my answer.
Those employed in Intellectual Property Law excel in handling copyright issues of not only books, art, and music, but also patents, confidential information, trademarks, trade secrets, and designs for industry. Each section has its own set of rules under the IP banner.
For the purposes of this article, I will be focusing only on one section of Canada's Intellectual Property laws - literary copyrights. You may not agree with everything you read here. Just remember that I'm giving you the highlights (and links) of laws which have already been passed in Canada, so please don't shoot the messenger.
This article will only talk about the changes, not the existing law.
Performances and Phonograms
Canada has also updated the World Intellectual Property Organization (WIPO) Copyright Treaty, and the Performances and Phonograms Treaty, both of which further define the international standards for protecting their copyright. These will become effective in Canada on August 13, 2014.
I included this because audio books are considered phonograms.
Canada's Modernization Act
Along with 168 member countries in The Berne Convention, copyrights no longer have to be registered in a government copyright office to have copyright protection. It begins when a work is created (on paper or other medium).
That doesn't mean you can't register your work. You will always have that option. It just means you don't have to hop to it as soon as you create your work, as many authors did in years past.
Although the copyright symbol as such - © - is used as a matter of course by most authors, and offers peace of mind that the work is protected, new laws in member countries say that using the symbol on all works is no longer necessary.
- Commentary: Use it anyway. Some people will assume a work is not copyrighted if they don't see the © symbol and will steal your work. They may steal it anyway, but who knows?The © symbol might be a deterrent. God knows, we need all the deterrents we can get, just to protect our work from thieves.
Canada's Modernization Act was last revised in 2012. Although Canada enjoys a multiple party system, one party - the Conservatives - unanimously endorsed the new bill and it passed. 2012 was the 4th revision of their copyright laws. A new revision was in the offing because of issues Canada felt were needlessly tying up a lot of courtroom time.
Canada's Online Copyright Laws
- As part of Canada's 2012 Copyright Modernization Act, the newest addition of Notice and Notice is meant to discourage online copyright infringement but it is on a voluntary basis. In other words, Canada can't make people follow this notification system.
- Notice and Notice gives copyright owners information on how to protect their rights
- The Act now requires a new review every five years by Parliament, so that it is constantly updated to keep up with the times.The last revision was in 1997.
Canada's New "Notice and Notice" Law
This newest addition to their copyright law is Canada's answer to handling DMCA notices. Widely touted as "made in Canada," if Canada was going for unique when they titled their newest copyright amendment "Notice and Notice," then they definitely accomplished it.
"Notice and Notice" puts law into writing what many copyright holders and ISP (internet service providers) already are doing voluntarily.
Effective January 1, 2015, whenever a host (or ISP) receives proper notice of copyright infringement from a copyright holder, they must forward the notice ASAP to the infringers.
Once it has been forwarded, the copyright holder must be notified of the deed. Canada advises all copyright holders to keep in his/her records for at least six months or even longer if the matter ends up in a court of law.
Any host or ISP who doesn't comply can be fined C$5,000 not to exceed C$10,000.
A copyright owner can also send a notice to a search engine for the infringing material on a website they index and they are expected to remove all copies in their cache and live within 30 days. If they are not removed in that time period, copyright holders can pursue damages with the search engine after the 30 days time limit.
As per Canadian law, the Canada Modernization Act will be reviewed again every five years.
There is just one thing I don't like about this part of the "Notice and Notice" law and I quote:
"ISPs and hosts are required to forward notices, sent by copyright owners, to users whose Internet address has been identified as being the source of possible infringement. The intermediary must also inform the copyright owner once the notice has been sent.
The Copyright Modernization Act sets clear rules on the content of these notices. Specifically, they must be in writing and state the claimant's name and address, identify the material allegedly being infringed and the claimant's right to it, as well as specify the infringing activity, the date and time of the alleged activity, and the electronic address associated with the incident. The Government is bringing the regime into force after determining that the Act provides sufficient flexibility for the regime to function without regulations."
Do you see where I would have a problem?
The copyright holder's personal information is being FORWARDED to the copyright infringer!
Illegal In Canada
Downloading copyrighted material from the Internet is widespread in Canada. And it is also illegal.
Smart & Biggar website reports:
"In March 2014, the Federal Court of Canada ordered an internet service provider (ISP) to release the names and addresses of 2,000 subscribers alleged to have illegally downloaded a copyrighted movie using peer-to-peer networks and the BitTorrent protocol.
"This marks the first Canadian decision in which the Federal Court has ordered the large scale production of customer information from a third party ISP in order to identify potential defendants in an action for illegal downloading of copyrighted material from the Internet."
Notable Changes To Canada's Copyright Law
On June 12, 2014, Canada's Minister of Justice published a 55 page report citing the changes in their Copyright Law. I'll spare you the chapter and verse of each page because it pertains to all copyrights - sound recordings, performances, artwork, and literary.
Page 36 begins the changes and clarifications of infringement of performances (audiobooks, sound recordings and video). What it says at the bottom of the page and onward is: for a copy of any work, sound recording, or a performance made in Canada, it is considered a copyright infringement for anyone:
- to sell it
- to rent it out
- to trade it
- to email it
- to display on a website
- to communicate by any other type of signal or technology
- to expose or display it without benefit to the owner
- to distribute it without benefit to the owner
- to own it for the intention of any of the above
- to import any works into Canada with intention of any of the above
Additionally, it is an infringement for any person or company to provide a service or provide access to the Internet or other digital service network to enable an infringer any of the above intentions.
For anything made outside of Canada, it is not a copyright infringement.
Owning a book
Levy For Blank Audio Recording Media
For the purpose of trade, any person who manufactures or imports a blank audio recording medium in Canada is liable to pay a levy for the selling or disposing of said blanks. A statement of account must be maintained and furnished upon request to the collecting office.
No levy is due when the blank is sold or otherwise disposed of, when it is to be exported from Canada and when it is finally exported from Canada.
Per page 38 of the new document, it is a copyright infringement for anyone to import books into Canada without the consent of the owner. Likewise, it is infringement:
- if one reprints a book in Canada where the copyright is held outside of Canada
- if one sells or rents out the book
- if one exhibits the book in public for the purposes of trade, sale, rental or distribution
- if one keeps books in their possession for any of the above purposes
The only person (s) to have an exemption is an exclusive distributor of the book to whom the author has given permission.
Reproduction For Private Use
It is not an infringement of copyright for any person to reproduce a work, or any substantial part of a work, as long as:
- the subject matter from which the reproduction is made was not an infringing copy in the first place
- the person legally obtained their copy of the original work
- the person does not give away the reproduction
- the reproduction is only used for the person's private use.
Thanks for reading
Canada's 2014 Copyright Law - for those who are interested in reading every word of the new law, here are 176 pages for your reading pleasure.
Free Speech In Canada - outcome of the 2011 court decision about being sued for posting hyperlinks within a story on a personal website in 2006 which argued that the articles were defamatory because they "represented a ‘smear campaign’ against the defendant and other members of the Green Party of Canada.”
Bloggers Rights in Canada - In 2012, Canada's Modernization Act created rules for bloggers. At the link is one blogger's explanation of the rules for blog ownership.
Copyright Fees in Canada vs United States - this may or may not surprise you. :)
Do Not Copy
© Rachael O'Halloran, June 17, 2014
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© 2014 Rachael O'Halloran