The origins of Copyright Law in Canada draw from a mixture of Anglo-American and continental-European legal traditions. The Anglo-American legal system reflects an approach centered on the author’s contribution to the pool of human art, knowledge and ideas through his or her work. Copyright is rooted in the tradition which took the form of monopoly protection of authors and publishers and it has remained essentially economic in nature. In contrast, the continental European approach, which traces back to the mid-18th century, was born in the human rights tradition and places more emphasis on the link between the author and his or her creation. Both traditions have influenced Canada’s legal framework for copyright.
Responsibility for copyright is shared between the Minister of Industry and the Minister of Canadian Heritage corresponding to the different policy priorities of the respective departments. Industry Canada is involved in innovation and knowledge based economic growth, as well as consumer interests and protection whereas Canadian Heritage is involved in implementing and promoting policies, projects and programs with respect to Canadian identity and values, cultural development and heritage.
From the perspective of cultural policy objectives, copyright protection is seen as the foundation for creative endeavour. The creation of Canadian cultural content and the availability of diverse choices for Canadians depend on adequate copyright protection and the enforcement as well as effective administration of rights through copyright collective societies. Canada’s Copyright Law establishes the economic and moral rights of creators to control the use of their works, to receive remuneration when their works are used and to protect the integrity of their work. Also, the objective of the Copyright Act (1985) is meant to ensure appropriate access for all Canadians to works that enhance the cultural experience and enrich the Canadian social fabric.
The Copyright Act was first enacted in 1924 and major amendments were introduced in 1988 and 1997with the following results:
- a number of new provisions, including a compensation right for cable retransmission and a clarification of the scope and strength of moral rights;
- collective societies administer specific rights on behalf of their rights holder members. The introduction of a set of provisions to allow the emergence of new types of collectives over which the Copyright Board was given jurisdiction;
- new rights for performers, sound recording makers ensured that they would be compensated when their performances or recordings were communicated to the public or performed in public. Broadcasters were given certain rights in their signals, including the right to “fix” them, as well as certain limited rights in relation to their rebroadcast or public performance;
- the introduction of new exceptions for schools, libraries, archives and museums;
- the creation of a private copying exception and a regime for compensating rights holders for the unauthorised copying of sound recordings for private use. This regime consists of a levy payable in respect to certain types of media used for such copying. The amount of the levy is set by the Copyright Board.
The government of Canada also brought the Copyright Act in line with commitments made under the Canada-United States Free Trade Agreement in 1989, the North American Free Trade Agreement in 1995, and the World Trade Organisation Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement in 1996. Canada thereupon substantially changed the Copyright Act, and dealt with numerous issues of domestic and international concern. It was able to become a party to an international agreement (the 1961 Rome Convention) and to meet the standards as well as ratify the latest version (1971) of the Berne Convention.
Following these amendments, many issues remained outstanding and new ones were emerging. In 1997, the government of Canada signed the World Intellectual Property Organisation (WIPO) Copyright Treaty (for authors and creators) and the WIPO Performances and Phonograms Treaty (for sound recording makers and performers). The two WIPO Treaties create an exclusive right for copyright owners to make their works available on-line to the public, prevent the circumvention of technical protection measures and prohibit tampering with rights management information.
In June 2001, the government of Canada announced further steps in the consultation process on digital copyright issues and released a document entitled, Framework for Copyright Reform. This document identified matters to be dealt with in future revisions and outlined a consultative process, which has since been followed. In October 2002, a comprehensive review of the Copyright Act entitled Supporting Culture and Innovation: Report on the Provisions and Operation of the Copyright Act was tabled in Parliament (the Section 92 Report) in compliance with the 1997 amendments of the Act. Important issues were identified including WIPO Treaty implementation.
Subsequently, in October 2003, the Standing Committee on Canadian Heritage began its review of the Section 92 Report including a list of all issues, such as WIPO Treaties. In May 2004, the Committee released an Interim Report. In June 2005 Bill C-60, An Act to amend the Copyright Act was tabled in Parliament. This proposed legislation was intended to implement the provisions of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, clarify liability for Internet Service Providers, facilitate the use of new technologies for educational and research purposes as well as inter-library loans and harmonise the treatment of photographers with that of the other rights holders. The proposed legislation died on the Order Paper with the calling of the general elections and prorogation of Parliament in late 2005.
In 2006, the Department of Canadian Heritage, in coordination with Industry Canada, continued to work towards the eventual introduction of a piece of legislation to amend the Copyright Act in order to allow Canada to implement the provisions of the two WIPO Treaties. Also, a 2006 report commissioned by the Department of Canadian Heritage, The Economic Impact of Canadian Copyright Industries – Sectoral Analysis by CONNECTUS Consulting Inc. indicates that copyright industries in Canada (including the written and electronic Press and literature, theatrical and music productions, motion picture and video industries, sound recording, radio and television, software databases and new media, and advertising services) comprised 4.5% of the Canadian GDP and 5.5% of total Canadian employment in 2004. In 2007, Parliament passed anAct to amend the Criminal Code of Canada (2007) in regard to the unauthorised recordings of a movie in theatres which effectively stemmed the growing “piracy” of live feature films in Canadian theatres by use of camcorders or other copying instruments. This law has already led to a number of prosecutions for violations.
In the October 2007 Speech from the Throne, which is presented by the Governor General of Canada to mark a new Session of Parliament but is approved in advance by the Prime Minister and the government as an indication of it’s planned directions in the coming year, the government of Canada made a commitment to improve the protection of cultural and intellectual property rights in Canada, including copyright reform. The Minister of Canadian Heritage is currently working with the Minister of Industry Canada towards the introduction of legislation to amend the Copyright Act that will allow the Canada to implement the WIPO Treaties.