In this presentation, V. Peter Harder describes why Canada engages with China, while Rob McDonald and Margot Patterson outline the changes to copyright laws in Canada.

1. FMC Presents:
Canada, China and Copyright Law
November 15th, 2012
Los Angeles, California
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2. Why Canada Engages with China?
Presented by: V. PETER HARDER
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3. Global Demography
The emerging markets will outgrow the mature
economies dramatically
1. China
2.
3.
Soviet Union
India
1950
4. USA
5. Japan ■ Mature Economies
6. Indonesia
7. Germany
8. Brazil
9. United Kingdom
10. Italy
11. France
12. East Pakistan
3

4. Global Demography
The emerging markets will outgrow the mature
economies dramatically
1. China
2.
3.
India
USA
2000
4. Indonesia
5. Brazil ■ Mature Economies
6. Russian Federation
7. Pakistan
8. Bangladesh
9. Japan
10. Nigeria
11. Mexico
12. Germany
4

5. Global Demography
The emerging markets will outgrow the mature
economies dramatically
1. India
2.
3.
China
USA
2050
4. Pakistan
5. Indonesia ■ Mature Economies
6. Nigeria
7. Bangladesh
8. Brazil
If demography is destiny,
9. Congo global leadership may pass from the
10. Ethiopia “Matures Economies” to the
11. Mexico
12. Philippines
“Emerging Markets” …
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6. Global Demography
In many aging countries, the size of the working age population will
shrink dramatically
US-/-CAN-/-UK-/-FR-/-GER-/-ITALY-/-JAPAN
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7. China’s sustained, rapid growth is an
unprecedented achievement
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8. China GDP in 2009 by province:
a union of leading developing countries
8

9. China GDP in 2020 by provinces
(projected): a union of second‐tier
developed and top‐tier developing countries
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10. China in the BRIC
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11. 11

12. 2012: A Landmark Year for Copyright in Canada
The Copyright Modernization Act and Supreme Court of Canada Decisions
Presented by:
Robert D. McDonald and Margot Patterson
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13. BILL C ‐ 11
• An Act to amend the Copyright Act (also known as the
Copyright Modernization Act) (“CMA”)
• Introduced September 29, 2011
• Received royal assent – June 29, 2012
• Provisions will be entered into force on a date to be
fixed by Order in Council
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14. Purpose of Copyright Modernization Act
• Updating legislation to deal with new technology
• Aligning Canada’s legislation with international treaties
• Clarify Internet Service Provider liability
• Permit businesses, educators, students and libraries to make
greater use of copyright material in digital form
• Revise legislative provisions to be technology neutral
• No substantial amendments since 1997
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15. Anti‐Circumvention Provisions (s.41 ‐ 41.27)
• Circumvention of technological protection measures (“TPM’s”)
used by rights holders to secure and control their digital
content, is prohibited
• TPM (or digital lock) circumvention is considered copyright
infringement (passwords, encryption software, access codes)
• Persons who manufacture, market or distribute TPM
circumvention tools such as digital lock cracking software, or
who set up services to enable infringement, will be subject to
civil and criminal sanctions
• Exception for unlocking cell phones (“radio apparatus”)
• These provisions apply to all TPM circumvention, even for
personal use
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16. Internet Service Providers (ISP’s) (s.31.1)
• No infringement simply by providing the means for telecommunication and
reproduction
• The CMA establishes a “notice and notice” scheme for ISP’s and search
engines (s. 41.25 – 41.27)
• ISP’s and search engines will have only limited liability for copyright
infringement committed by their subscribers
• “Notice and Notice”: ISP’s and search engines will have to forward any
notices received of claimed infringement to the alleged infringer and
maintain records relating to the alleged infringer’s identity
• It is now copyright infringement to provide a service over the internet or
otherwise that is designed to enable acts of copyright infringement
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17. Statutory Damages (s. 38.1)
• The previous Copyright Act allowed a copyright owner to seek
statutory damages between $500.00 and $20,000.00 for each
work infringed
• The CMA reduces the statutory damages to a range of
between $100.00 and $5,000.00 where the copyright
infringement is relating to an individual who has infringed
copyright for private use (one time payment for ALL
infringements)
• Statutory damages for infringement for commercial purposes
are still between $500.00 and $20,000.00 for each work
infringed.
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18. Fair Dealing (s.29)
• Fair dealing has always been an exception under the
Copyright Act: research, private study, criticism,
review
• Permitted purposes expanded under the CMA to
include education, parody and satire
• Dealings with works must still be considered “fair”
– 6‐step test: purpose, character, and amount of the dealing;
alternatives to the dealing; nature of the work; and effect
of the dealing on the work.
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19. User Generated Content (YouTube clause s. 29.21)
• Users now permitted to create their own content by
combining or using existing copyright material,
provided certain conditions are met
• The purpose of the user generated content must be
non‐commercial, the source must be mentioned
(where reasonable), and there must not be any
substantial adverse impact on the copyright holder’s
exploitation of the work
• Individual must have reasonable grounds to believe
the source material was not infringing copyright
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20. Copying for Private Purposes
• Format shifting (s. 29.22) time shifting, (s. 29.23) and backup
copies (s. 29.24)
• Under the previous Copyright Act, format shifting and time
shifting were unlawful, and constituted copyright infringement
• The CMA makes it lawful to make copies for private purposes
• The exception is only available if the source material is not
infringing, it was legally obtained, and a TPM has not been
circumvented
• Cannot copy borrowed or rented works, cannot give away, sell
or rent the copy
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21. Photographers (s. 10 and s. 13(2) repealed)
• Under the old Copyright Act, the person who
commissioned a photograph was considered the
original owner of copyright
• Under the CMA, the photographer will become the
first owner of copyright in their photographs,
regardless of whether or not the works were
commissioned
• Individuals who commissioned works will have rights
of personal and non‐commercial use unless there is
an agreement to the contrary
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22. Other Amendments
• New Moral Rights for Performers (s. 17.1 and 17.2)
– used to only exist for authors
• New Making Available and Distribution Rights (s. 15 and s. 18)
– Making works and performer’s performances available by
telecommunication and distribution
• Removal or alteration of Rights Management Information
(RMI) prohibited (s. 41.22)
– ie. water marks and notices
• New Educational Institution exceptions (s. 29.4 and s. 30.1)
– Use of publicly available internet materials, digital delivery of course
materials
• Review of CMA every 5 years (s. 92)
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23. Supreme Court Pentalogy 2012
1. Downloads don’t infringe
(Entertainment Software Association v. SOCAN)
2. Online streams do infringe
(Rogers Communications v. SOCAN)
3. “Sound recording” excludes film and TV soundtracks
(Re:Sound v. MPTAC)
4. Teachers’ photocopies for students “fair dealing”
(Alberta (Education) v. Access Copyright)
5. Online music previews “fair dealing”
(SOCAN v. Bell Canada)
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24. Conclusion
• The Copyright Modernization Act represents a
significant revision to existing Canadian copyright
legislation
• The CMA attempts to balance the rights of both
creators and users, brings Canada’s legislative regime
more in line with international standards, makes
Canada’s copyright legislation technologically neutral,
and addresses the realities of new technologies on
the protection and enforcement of copyright
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25. The preceding presentation contains examples of the
kinds of issues companies dealing with Copyright Law
could face. If you are faced with one of these issues,
please retain professional assistance as each situation
is unique.

26. Thank You!
Technology, Media and Entertainment Practice Group
Gordon Esau, Partner
Fraser Milner Casgrain LLP | www.fmc‐law.com
T 604 443 7105 | F 604 683 5214
E gordon.esau@fmc‐law.com