2012 was surprisingly good for Canada. The decade long revision of the Copyright Act was completed; most parties agree that it was a good compromise.
Amendments included: expanding fair dealing to include parody, satire, and education; protecting consumer behavior that reflects the conduct of consumers in a digital age; maintaining the independence of ISPs and the privacy of subscribers; implementing a cap on damages for non-commercial infringement ($5,000 is the maximum but a judge can award as little as $100; this is intended to discourage file-sharing lawsuits); and, creating an exception for non-commercial user-generated content. To be sure, all the exceptions come with the expected provisos, and all are subject to the overarching ban on any circumvention of technological protection measures. It still strains credulity as to why Canada in 2012 adopted a prohibition first conceived in 1996; but, given the fierce opposition by rights-holders, the fact that the user allowances were not rolled back in committee speaks well. Michael Geist gives a good synopsis of the new Act here.
And then came the Day of Five. In December 2011, the Supreme Court of Canada heard five copyright cases; all five decisions were released on July 12, 2012. The combination carries a strong message from the Court: copyright is a limited right and those limits must be robust if copyright is to serve its presumptive purpose of enhancing creativity. Of particular note is this Court’s continued support of fair dealing. In one case, a performing rights collective society sought compensation for the use of music previews (30-90 seconds long) as they are used in cultivating sales of complete music files. The Court denied that request, stipulating that the use of previews is consumer research. Moreover, the Court took the opportunity to probe into the nature of research, to the advantage of all Canadians:
Limiting research to creative purposes would also run counter to the ordinary meaning of “research”, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest (SOCAN v. Bell Canada, para. 22).
In a second case, an educational licensing collective objected to the practice of teachers taking copies of small excerpts of works to be used in conjunction with paid-for textbooks. To the claim that such copying was detrimental to markets, the Court responded with:
[T]here was no evidence that this decline was linked to photocopying done by teachers. Moreover, it noted that there were several other factors that were likely to have contributed to the decline in sales, such as the adoption of semester teaching, a decrease in registrations, the longer lifespan of textbooks, increased use of the Internet and other electronic tools, and more resource-based learning (Access v. Education, para 33).
The Supreme Court of Canada began the quest for better balance in the system of copyright in 2002; a brief summary of pertinent decisions is available here. Through the five recent cases, the Court continued its commitment to technological neutrality, emphasized that advancements in technology do not immediately confer added control to copyright holders, and, made it plain that when considering fair dealing, focus must go to the end-user (not any intermediary involved in the reproduction or distribution of a work.)
An immediate effect of both the new Act and the Court’s guidance is a shift in policy by educational institutions. These institutions were a captive market for educational licensing collectives, with instances of fair dealing effectively wrapped into blanket fees. Michael Geist writes that such monopoly is being rethought. Canadian institutions have paid, and will continue to pay, fees where copyright requires it; but fair dealing is now seen as an active practice instead of an exception that only exists on paper.
With a more flexible Copyright Act and a Supreme Court that champions balance between copyright holders and copyright users, Canada looks good going into 2013.