Bob Tarantino is a lawyer in the Entertainment Law Group of Heenan Blaikie LLP. He holds graduate degrees in law from Osgoode Hall Law School and the University of Oxford.
There are hopefully few who would object to efforts to simplify or make shorter the Copyright Act (Canada) – any piece of legislation which boasts a Section 44.1(3)(a)(ii) or in which Section 2.11 comes before Section 2.2 could use a stern editorial hand. Amidst all the excitement and controversy prompted by the new additions (More fair dealing exceptions! Protection for digital locks!) contemplated by Bill C-32 (the Copyright Modernization Act), this short article takes a moment to look at those provisions of the Act which will be repealed if Bill C-32 is passed in its present form. Slated for repeal are sections which address substantive copyright law dealing with photographs, the scope of educational institution exceptions to infringement and the so-called “ephemeral recording” exceptions in the Act.
The most momentous deletion contemplated by the Copyright Modernization Act relates to photographs. Sections 10 (photographs) and 13(2) (photographs, engravings and portraits) of the Act erect a regime of differential treatment with unique provisions affecting authorship, ownership and duration. Bill C-32 does away with all of that, resulting in photographs finally being treated in a manner consistent with other works. Currently, Section 10 provides that, distinct from all other works protected by the Act, a corporation can be the “author” of a photograph – if Bill C-32 passes, all photographs will have only a human author. While Section 10 now deems the owner of the negative or the photograph itself (as with digital images, where no negative is created) to be the author, its repeal will mean that identifying the author of a photograph will be handled in the same manner as one identifies the author of a novel, poem or painting.
With respect to the duration of copyright protection for photographs, the Act in its current form creates a term of protection of fifty years for photographs “authored” by a corporation; the proposed revisions, as a consequence of the removal of corporate authors, would result in all new photographs being protected for a term equal to the life of the author plus fifty years, the same as all other works (excluding non-dramatic cinematographic works – a fruitful subject for a future set of revisions…). Finally, the current Section 13(2) provides that the person who orders a photograph, engraving or portrait is the first owner thereof (subject to consideration being paid or the contrary provisions of any agreement) – repealing the section will mean that, as with all other works, the first owner of a photograph will be the author absent the work being made in the course of employment. All told, the proposed repeals will vest considerably expanded rights in actual human photographers, and will eliminate one of the more baroque curlicues in the process of determining whether a license is needed to reproduce a photographic work.
Educational Institutions and News Programs
The second set of consequential deletions from the Act relates to one of the more fiddly exceptions to infringement. Section 29.6(1) of the Act provides that educational institutions and teachers are permitted to make a single copy of a news program or news commentary program (but not a documentary) for educational purposes and to “perform” (or, in the terminology of non-lawyers, “show”) that copy to their students within one year of the making of the copy.
Section 29.6(2), which is slated for repeal, requires the educational institution making use of Section 29.6(1) to, after one year has elapsed from the date of the making of the copy, either delete the copy or pay a royalty, and pay an additional royalty for any continued use thereafter. The deletion of Section 29.6(2) (and consequential deletions of 29.9(1)(a), 76(4)(b)(i) and 76(4)(b)(ii), along with a modification of the language in Section 29.6(1)(b)) would bring some useful rationality to the Copyright Act: no longer would educational institutions be required to pay a royalty for showing a copy of a news program to students, nor would they be artificially limited to a one year royalty-free period, nor would they be obliged to retain the truly breathtakingly detailed records which are required by the regulations to the Act.
Making the Ephemeral Recording Exception More Concrete
Section 30.9(6), slated for repeal, is what is colloquially referred to as “an exception to the exception” – it has long been criticized by commercial radio broadcasters for effectively gutting the “pre-recorded recording exception” found in the remainder of Section 30.9. The notion of the “pre-recorded recording exception” is similar to the notion of the “ephemeral recording exception” found in Section 30.8: both operate to create an exception to infringement for reproductions made by radio broadcasters for purposes of effecting their broadcasts. So, for example, a radio station which duplicates a song from a CD which the station has purchased onto a hard drive for later inclusion in the station’s evening “rush hour” show would, prima facie, find shelter under the provisions of Section 30.9, which allows for such “format shifting”. Section 30.9 was introduced in the 1997 amendments to the Copyright Act, but came complete with a mechanism that rendered the purported exception virtually worthless: Section 30.9(6) stipulates that the exception does not apply “if a license is available from a collective society” for the reproduction. As was entirely predictable, owners of rights in works, sound recordings and performer’s performances rushed to take advantage of the exception to the exception. Indeed, an entirely new collective society was formed precisely for the purpose of doing just what was contemplated by Section 30.9(6): CMRRA/SODRAC Inc. (CSI) had their first commercial radio station tariff for format shifting certified on March 29, 2003.
The repeal of Section 30.9(6) will mean that the “pre-recorded recording exception” found in Section 30.9 will finally be meaningful: the reproduction of a work for the purposes of transferring the work to a different format in order to facilitate the broadcast of that work will be sheltered by an exception to infringement, full-stop. The financial impact in favour of commercial broadcasters is significant: when the Copyright Board renewed the CSI commercial radio tariff for 2007, it noted that the tariff was expected to generate annual revenues for CSI of $8 million (Decision of the Copyright Board of Canada, Statement of royalties to be collected by CMRRA/SODRAC Inc. for the reproduction of musical works, in Canada, by commercial radio stations for the year 2007 (Ottawa: February 16, 2007).
A brief note about two other sections which are being “repealed” – but which are being re-inserted into a different part of the Act. Section 45 of Bill C-32 repeals Sections 36 and 37 of the Act – the “protection of separate rights” provision and the “concurrent jurisdiction of the Federal Court” provision. Sections 36 and 37 currently reside in the midst of the “Civil Remedies” portion of the Act. Bill C-32 will remove them from there and put them at the end of what will be a new Section 41 – Sections 36 and 37 will be reborn as Sections 41.23 and 41.24, respectively.
While this might be regarded as an attempt to streamline the Act to make it more easily navigable, perhaps on the theory that it would be logical for the clauses which address the protection of separate rights and Federal Court jurisdiction to be placed at the end of the civil remedies sections and before the beginning of the criminal remedies sections (which begin in Section 42 of the Act), that goal is not realized. Bill C-32 contemplates adding Sections 41.25, 41.26 and 41.27 to the Act – so what are currently Sections 36 and 37 will go from being illogically placed in the middle of the remedies sections to… being illogically placed somewhat more towards the end of the remedies sections. The Act can be frustrating to manage at the best of times, but this is the sort of change which only serves to render the Act an ever more obtuse artefact. Readers familiar with Sections 36 and 37 will find that knowledge useless now, and for no evident gain in the structural coherence of the Act.