21 May, 2013

Thoughts on the Canadian Copyright Modernization Act 2012

In the wake of highly impacting cases in the Canadian courts, one of which was discussed on this very blog not too long ago, the Canadian Parliament enacted a piece of legislation aiming to bring the Canadian copyright laws to the 21st century; the Copyright Modernization Act 2012.

The worst copyright abusers of them all
The Act made several changes to the existing Copyright Act, adding a categorical exception for educational use, one which is absent from its Australian counterpart for example. This exception bares significant weight in today's world, providing a means for schools to give students copied materials from copyrighted works and to teach more efficiently and broadly. There clearly is no competing interest in doing so, and allows for both poorer schools and students alike to utilize materials otherwise not in their means to acquire.  Several copyright collectives opposed the education provisions, and much to their chagrin, they were enacted and the breadth of the provisions is quite substantial. The addition of this exception makes sense both from a legal and a human perspective. After the decision of Alberta (Education) v Canadian Copyright Licensing Agency, which extended the previous fair dealing exceptions to cover educational purposes through some clever legal argumentation, there seemed to be no reason to attempt to prevent this exception from being enacted. Also looking at things from the perspective of a potential parent some day, the freer use of material in an educational setting will enable future generations to learn more effectively.

The second exception added in the Act is one which is yet to see an equal in any legislature in the world; the use of copyrighted material in non-commercial content made by users. What the provision allowed was the creation of new works using older copyrighted material such as songs, videos etc, so long as the the use of those works is for non-commercial purposes. Often cited as the "mash-up" provision, it provides a great tool for users to create a variety of works without the fear of legal repercussions. Some questions do remain however:

What is a non-commercial purpose, and could the purpose of the work change over time? A perfect example of this would be videos on YouTube. One might initially make a hilarious video of your cat meowing along to a popular song or yourself hilariously singing along to one, for the purpose of sharing your pet's or your own escapades with that of a select few or just the comedy appreciating populous at large. When posting that video your intention was probably not commercial, or at least you didn't believe or think you'd make money off of that video. But what if it goes viral and all of a sudden you have the opportunity to make a few bucks? Would the purpose of that video change at that point and become a commercial one, even after it would explode in terms of viewership years later? This presents a scenario that would clearly be one for judges to look at pertaining to each given situation, but it does present some ambiguity as to the application of this particular exception.

High Schoolers mashing it up
Second is the effect that websites have as the sharing platforms for content, potentially impacting its commerciality. Lets look at another scenario: A new start-up website encourages and helps distribute disseminated content, using the Canadian provision as the means to allow users to do so. The users themselves don't get paid for the content, but the large amounts of shared content containing copyrighted works used in user-created works does spur and increase in website traffic, profiting the website and its owners. The purpose for the videos was not, much like in the YouTube example, commercial in itself, but purely one where other users wished to share their videos with other users in that platform. Would that purpose constitute as a commercial one if it profits the website? Would the encouragement to disseminate and share content change their purpose in itself? Again, questions like this would remain for the judiciary to decide should they become contested in the courts.

Overall the Copyright Modernization Act does expand and allow for better and wider uses of content, both on a personal user level and on a wider scale. It does address issues which have evolved through the use of mediums such as the Internet, but still some ambiguity remains. There have been no cases dealing with the shiny new provisions, but with content sharing being such a big part of modern Internet interaction, they undoubtedly will be litigated on in the future.


  1. What comparison have you undertaken to determine if there is anything similar to the Canadian mash up provision!

    1. To my knowledge there is no provision like the one in the Canadian legislation in any of the other common law jurisdictions. In the UK the CDPA 1988 has very weak fair dealing provisions, and in Australia the CA 1968 has nothing that would specifically allow for such uses either.

      Fair dealing in the US is wide enough to potentially include this, and there have been successful cases dealing with mash-ups, but my point was purely one dealing with specific provisions.

      Hopefully that answered your question.