Copyright Modernization Act (S.C. 2012, c. 20)

Assented to 2012-06-29

Marginal note:1997, c. 24, s. 22

 Section 41 of the Act is replaced by the following:

Technological Protection Measures and Rights Management Information

Marginal note:Definitions

41. The following definitions apply in this section and in sections 41.1 to 41.21.

“circumvent”

« contourner »

“circumvent” means,

  • (a) in respect of a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure”, to descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological protection measure, unless it is done with the authority of the copyright owner; and

  • (b) in respect of a technological protection measure within the meaning of paragraph (b) of the definition “technological protection measure”, to avoid, bypass, remove, deactivate or impair the technological protection measure.

“technological protection measure”

« mesure technique de protection »

“technological protection measure” means any effective technology, device or component that, in the ordinary course of its operation,

  • (a) controls access to a work, to a performer’s performance fixed in a sound recording or to a sound recording and whose use is authorized by the copyright owner; or

  • (b) restricts the doing — with respect to a work, to a performer’s performance fixed in a sound recording or to a sound recording — of any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19.

Marginal note:Prohibition
  • 41.1 (1) No person shall

    • (a) circumvent a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure” in section 41;

    • (b) offer services to the public or provide services if

      • (i) the services are offered or provided primarily for the purposes of circumventing a technological protection measure,

      • (ii) the uses or purposes of those services are not commercially significant other than when they are offered or provided for the purposes of circumventing a technological protection measure, or

      • (iii) the person markets those services as being for the purposes of circumventing a technological protection measure or acts in concert with another person in order to market those services as being for those purposes; or

    • (c) manufacture, import, distribute, offer for sale or rental or provide — including by selling or renting — any technology, device or component if

      • (i) the technology, device or component is designed or produced primarily for the purposes of circumventing a technological protection measure,

      • (ii) the uses or purposes of the technology, device or component are not commercially significant other than when it is used for the purposes of circumventing a technological protection measure, or

      • (iii) the person markets the technology, device or component as being for the purposes of circumventing a technological protection measure or acts in concert with another person in order to market the technology, device or component as being for those purposes.

  • Marginal note:Circumvention of technological protection measure

    (2) The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording in respect of which paragraph (1)(a) has been contravened is, subject to this Act and any regulations made under section 41.21, entitled to all remedies — by way of injunction, damages, accounts, delivery up and otherwise — that are or may be conferred by law for the infringement of copyright against the person who contravened that paragraph.

  • Marginal note:No statutory damages

    (3) The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording in respect of which paragraph (1)(a) has been contravened may not elect under section 38.1 to recover statutory damages from an individual who contravened that paragraph only for his or her own private purposes.

  • Marginal note:Services, technology, device or component

    (4) Every owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording in respect of which a technological protection measure has been or could be circumvented as a result of the contravention of paragraph (1)(b) or (c) is, subject to this Act and any regulations made under section 41.21, entitled to all remedies — by way of injunction, damages, accounts, delivery up and otherwise — that are or may be conferred by law for the infringement of copyright against the person who contravened paragraph (1)(b) or (c).

Marginal note:Law enforcement and national security
  • 41.11 (1) Paragraph 41.1(1)(a) does not apply if a technological protection measure is circumvented for the purposes of an investigation related to the enforcement of any Act of Parliament or any Act of the legislature of a province, or for the purposes of activities related to the protection of national security.

  • Marginal note:Services

    (2) Paragraph 41.1(1)(b) does not apply if the services are provided by or for the persons responsible for carrying out such an investigation or such activities.

  • Marginal note:Technology, device or component

    (3) Paragraph 41.1(1)(c) does not apply if the technology, device or component is manufactured, imported or provided by the persons responsible for carrying out such an investigation or such activities, or is manufactured, imported, provided or offered for sale or rental as a service provided to those persons.

Marginal note:Interoperability of computer programs
  • 41.12 (1) Paragraph 41.1(1)(a) does not apply to a person who owns a computer program or a copy of one, or has a licence to use the program or copy, and who circumvents a technological protection measure that protects that program or copy for the sole purpose of obtaining information that would allow the person to make the program and any other computer program interoperable.

  • Marginal note:Services

    (2) Paragraph 41.1(1)(b) does not apply to a person who offers services to the public or provides services for the purposes of circumventing a technological protection measure if the person does so for the purpose of making the computer program and any other computer program interoperable.

  • Marginal note:Technology, device or component

    (3) Paragraph 41.1(1)(c) does not apply to a person who manufactures, imports or provides a technology, device or component for the purposes of circumventing a technological protection measure if the person does so for the purpose of making the computer program and any other computer program interoperable and

    • (a) uses that technology, device or component only for that purpose; or

    • (b) provides that technology, device or component to another person only for that purpose.

  • Marginal note:Sharing of information

    (4) A person referred to in subsection (1) may communicate the information obtained under that subsection to another person for the purposes of allowing that person to make the computer program and any other computer program interoperable.

  • Marginal note:Limitation

    (5) A person to whom the technology, device or component referred to in subsection (3) is provided or to whom the information referred to in subsection (4) is communicated may use it only for the purpose of making the computer program and any other computer program interoperable.

  • Marginal note:Non-application

    (6) However, a person is not entitled to benefit from the exceptions under subsections (1) to (3) or (5) if, for the purposes of making the computer program and any other computer program interoperable, the person does an act that constitutes an infringement of copyright.

  • Marginal note:Non-application

    (7) Furthermore, a person is not entitled to benefit from the exception under subsection (4) if, for the purposes of making the computer program and any other computer program interoperable, the person does an act that constitutes an infringement of copyright or an act that contravenes any Act of Parliament or any Act of the legislature of a province.

Marginal note:Encryption research
  • 41.13 (1) Paragraph 41.1(1)(a) does not apply to a person who, for the purposes of encryption research, circumvents a technological protection measure by means of decryption if

    • (a) it would not be practical to carry out the research without circumventing the technological protection measure;

    • (b) the person has lawfully obtained the work, the performer’s performance fixed in a sound recording or the sound recording that is protected by the technological protection measure; and

    • (c) the person has informed the owner of the copyright in the work, the performer’s performance fixed in a sound recording or the sound recording who has applied the technological protection measure.

  • Marginal note:Non-application

    (2) However, a person acting in the circumstances referred to in subsection (1) is not entitled to benefit from the exception under that subsection if the person does an act that constitutes an infringement of copyright or an act that contravenes any Act of Parliament or any Act of the legislature of a province.

  • Marginal note:Technology, device or component

    (3) Paragraph 41.1(1)(c) does not apply to a person referred to in subsection (1) who manufactures a technology, device or component for the purposes of circumventing a technological protection measure that is subject to paragraph 41.1(1)(a) if the person does so for the purpose of encryption research and

    • (a) uses that technology, device or component only for that purpose; or

    • (b) provides that technology, device or component only for that purpose to another person who is collaborating with the person.

Marginal note:Personal information
  • 41.14 (1) Paragraph 41.1(1)(a) does not apply to a person who circumvents a technological protection measure if

    • (a) the work, performer’s performance fixed in a sound recording or sound recording that is protected by the technological protection measure is not accompanied by a notice indicating that its use will permit a third party to collect and communicate personal information relating to the user or, in the case where it is accompanied by such a notice, the user is not provided with the option to prevent the collection and communication of personal information without the user’s use of it being restricted; and

    • (b) the only purpose of circumventing the technological protection measure is to verify whether it permits the collection or communication of personal information and, if it does, to prevent it.

  • Marginal note:Services, technology, device or component

    (2) Paragraphs 41.1(1)(b) and (c) do not apply to a person who offers services to the public or provides services, or manufactures, imports or provides a technology, device or component, for the purposes of circumventing a technological protection measure in accordance with subsection (1), to the extent that the services, technology, device or component do not unduly impair the technological protection measure.

Marginal note:Security
  • 41.15 (1) Paragraph 41.1(1)(a) does not apply to a person who circumvents a technological protection measure that is subject to that paragraph for the sole purpose of, with the consent of the owner or administrator of a computer, computer system or computer network, assessing the vulnerability of the computer, system or network or correcting any security flaws.

  • Marginal note:Services

    (2) Paragraph 41.1(1)(b) does not apply if the services are provided to a person described in subsection (1).

  • Marginal note:Technology, device or component

    (3) Paragraph 41.1(1)(c) does not apply if the technology, device or component is manufactured or imported by a person described in subsection (1), or is manufactured, imported, provided — including by selling or renting — offered for sale or rental or distributed as a service provided to that person.

  • Marginal note:Non-application

    (4) A person acting in the circumstances referred to in subsection (1) is not entitled to benefit from the exception under that subsection if the person does an act that constitutes an infringement of copyright or an act that contravenes any Act of Parliament or any Act of the legislature of a province.

Marginal note:Persons with perceptual disabilities
  • 41.16 (1) Paragraph 41.1(1)(a) does not apply to a person with a perceptual disability, another person acting at their request or a non-profit organization acting for their benefit if that person or organization circumvents a technological protection measure for the sole purpose of making a work, a performer’s performance fixed in a sound recording or a sound recording perceptible to the person with a perceptual disability.

  • Marginal note:Services, technology, device or component

    (2) Paragraphs 41.1(1)(b) and (c) do not apply to a person who offers or provides services to persons or organizations referred to in subsection (1), or manufactures, imports or provides a technology, device or component, for the purposes of enabling those persons or organizations to circumvent a technological protection measure in accordance with that subsection, to the extent that the services, technology, device or component do not unduly impair the technological protection measure.

Marginal note:Broadcasting undertakings

41.17 Paragraph 41.1(1)(a) does not apply to a broadcasting undertaking that circumvents a technological protection measure for the sole purpose of making an ephemeral reproduction of a work, a performer’s performance fixed in a sound recording or a sound recording in accordance with section 30.9, unless the owner of the copyright in the work, the performer’s performance fixed in a sound recording or the sound recording that is protected by the technological protection measure makes available the necessary means to enable the making of such a reproduction in a timely manner in light of the broadcasting undertaking’s business requirements.

Marginal note:Radio apparatus
  • 41.18 (1) Paragraph 41.1(1)(a) does not apply to a person who circumvents a technological protection measure on a radio apparatus for the sole purpose of gaining access to a telecommunications service by means of the radio apparatus.

  • Marginal note:Services or technology, device or component

    (2) Paragraphs 41.1(1)(b) and (c) do not apply to a person who offers the services to the public or provides the services, or manufactures, imports or provides the technology, device or component, for the sole purpose of facilitating access to a telecommunications service by means of a radio apparatus.

  • Marginal note:Definitions

    (3) The following definitions apply in this section.

    “radio apparatus”

    « appareil radio »

    “radio apparatus” has the same meaning as in section 2 of the Radiocommunication Act.

    “telecommunications service”

    « service de télécommunication »

    “telecommunications service” has the same meaning as in subsection 2(1) of the Telecommunications Act.

Marginal note:Reduction of damages

41.19 A court may reduce or remit the amount of damages it awards in the circumstances described in subsection 41.1(1) if the defendant satisfies the court that the defendant was not aware, and had no reasonable grounds to believe, that the defendant’s acts constituted a contravention of that subsection.

Marginal note:Injunction only remedy

41.2 If a court finds that a defendant that is a library, archive or museum or an educational institution has contravened subsection 41.1(1) and the defendant satisfies the court that it was not aware, and had no reasonable grounds to believe, that its actions constituted a contravention of that subsection, the plaintiff is not entitled to any remedy other than an injunction.

Marginal note:Regulations
  • 41.21 (1) The Governor in Council may make regulations excluding from the application of section 41.1 any technological protection measure that protects a work, a performer’s performance fixed in a sound recording or a sound recording, or classes of them, or any class of such technological protection measures, if the Governor in Council considers that the application of that section to the technological protection measure or class of technological protection measures would unduly restrict competition in the aftermarket sector in which the technological protection measure is used.

  • Marginal note:Regulations

    (2) The Governor in Council may make regulations

    • (a) prescribing additional circumstances in which paragraph 41.1(1)(a) does not apply, having regard to the following factors:

      • (i) whether not being permitted to circumvent a technological protection measure that is subject to that paragraph could adversely affect the use a person may make of a work, a performer’s performance fixed in a sound recording or a sound recording when that use is authorized,

      • (ii) whether the work, the performer’s performance fixed in a sound recording or the sound recording is commercially available,

      • (iii) whether not being permitted to circumvent a technological protection measure that is subject to that paragraph could adversely affect criticism, review, news reporting, commentary, parody, satire, teaching, scholarship or research that could be made or done in respect of the work, the performer’s performance fixed in a sound recording or the sound recording,

      • (iv) whether being permitted to circumvent a technological protection measure that is subject to that paragraph could adversely affect the market for the work, the performer’s performance fixed in a sound recording or the sound recording or its market value,

      • (v) whether the work, the performer’s performance fixed in a sound recording or the sound recording is commercially available in a medium and in a quality that is appropriate for non-profit archival, preservation or educational uses, and

      • (vi) any other relevant factor; and

    • (b) requiring the owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording that is protected by a technological protection measure to provide access to the work, performer’s performance fixed in a sound recording or sound recording to persons who are entitled to the benefit of any of the limitations on the application of paragraph 41.1(1)(a) prescribed under paragraph (a). The regulations may prescribe the manner in which, and the time within which, access is to be provided, as well as any conditions that the owner of the copyright is to comply with.

Marginal note:Prohibition — rights management information
  • 41.22 (1) No person shall knowingly remove or alter any rights management information in electronic form without the consent of the owner of the copyright in the work, the performer’s performance or the sound recording, if the person knows or should have known that the removal or alteration will facilitate or conceal any infringement of the owner’s copyright or adversely affect the owner’s right to remuneration under section 19.

  • Marginal note:Removal or alteration of rights management information

    (2) The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording is, subject to this Act, entitled to all remedies — by way of injunction, damages, accounts, delivery up and otherwise — that are or may be conferred by law for the infringement of copyright against a person who contravenes subsection (1).

  • Marginal note:Subsequent acts

    (3) The copyright owner referred to in subsection (2) has the same remedies against a person who, without the owner’s consent, knowingly does any of the following acts with respect to any material form of the work, the performer’s performance fixed in a sound recording or the sound recording and knows or should have known that the rights management information has been removed or altered in a way that would give rise to a remedy under that subsection:

    • (a) sells it or rents it out;

    • (b) distributes it to an extent that the copyright owner is prejudicially affected;

    • (c) by way of trade, distributes it, exposes or offers it for sale or rental or exhibits it in public;

    • (d) imports it into Canada for the purpose of doing anything referred to in any of paragraphs (a) to (c); or

    • (e) communicates it to the public by telecommunication.

  • Definition of “rights management information”

    (4) In this section, “rights management information” means information that

    • (a) is attached to or embodied in a copy of a work, a performer’s performance fixed in a sound recording or a sound recording, or appears in connection with its communication to the public by telecommunication; and

    • (b) identifies or permits the identification of the work or its author, the performance or its performer, the sound recording or its maker or the holder of any rights in the work, the performance or the sound recording, or concerns the terms or conditions of the work’s, performance’s or sound recording’s use.

General Provisions

Marginal note:Protection of separate rights
  • 41.23 (1) Subject to this section, the owner of any copyright, or any person or persons deriving any right, title or interest by assignment or grant in writing from the owner, may individually for himself or herself, as a party to the proceedings in his or her own name, protect and enforce any right that he or she holds, and, to the extent of that right, title and interest, is entitled to the remedies provided by this Act.

  • Marginal note:Copyright owner to be made party

    (2) If proceedings under subsection (1) are taken by a person other than the copyright owner, the copyright owner shall be made a party to those proceedings, except

    • (a) in the case of proceedings taken under section 44.1, 44.2 or 44.4;

    • (b) in the case of interlocutory proceedings, unless the court is of the opinion that the interests of justice require the copyright owner to be a party; and

    • (c) in any other case in which the court is of the opinion that the interests of justice do not require the copyright owner to be a party.

  • Marginal note:Owner’s liability for costs

    (3) A copyright owner who is made a party to proceedings under subsection (2) is not liable for any costs unless the copyright owner takes part in the proceedings.

  • Marginal note:Apportionment of damages, profits

    (4) If a copyright owner is made a party to proceedings under subsection (2), the court, in awarding damages or profits, shall, subject to any agreement between the person who took the proceedings and the copyright owner, apportion the damages or profits referred to in subsection 35(1) between them as the court considers appropriate.

Marginal note:Concurrent jurisdiction of Federal Court

41.24 The Federal Court has concurrent jurisdiction with provincial courts to hear and determine all proceedings, other than the prosecution of offences under sections 42 and 43, for the enforcement of a provision of this Act or of the civil remedies provided by this Act.

Provisions Respecting Providers of Network Services or Information Location Tools

Marginal note:Notice of claimed infringement
  • 41.25 (1) An owner of the copyright in a work or other subject-matter may send a notice of claimed infringement to a person who provides

    • (a) the means, in the course of providing services related to the operation of the Internet or another digital network, of telecommunication through which the electronic location that is the subject of the claim of infringement is connected to the Internet or another digital network;

    • (b) for the purpose set out in subsection 31.1(4), the digital memory that is used for the electronic location to which the claim of infringement relates; or

    • (c) an information location tool as defined in subsection 41.27(5).

  • Marginal note:Form and content of notice

    (2) A notice of claimed infringement shall be in writing in the form, if any, prescribed by regulation and shall

    • (a) state the claimant’s name and address and any other particulars prescribed by regulation that enable communication with the claimant;

    • (b) identify the work or other subject-matter to which the claimed infringement relates;

    • (c) state the claimant’s interest or right with respect to the copyright in the work or other subject-matter;

    • (d) specify the location data for the electronic location to which the claimed infringement relates;

    • (e) specify the infringement that is claimed;

    • (f) specify the date and time of the commission of the claimed infringement; and

    • (g) contain any other information that may be prescribed by regulation.

Marginal note:Obligations related to notice
  • 41.26 (1) A person described in paragraph 41.25(1)(a) or (b) who receives a notice of claimed infringement that complies with subsection 41.25(2) shall, on being paid any fee that the person has lawfully charged for doing so,

    • (a) as soon as feasible forward the notice electronically to the person to whom the electronic location identified by the location data specified in the notice belongs and inform the claimant of its forwarding or, if applicable, of the reason why it was not possible to forward it; and

    • (b) retain records that will allow the identity of the person to whom the electronic location belongs to be determined, and do so for six months beginning on the day on which the notice of claimed infringement is received or, if the claimant commences proceedings relating to the claimed infringement and so notifies the person before the end of those six months, for one year after the day on which the person receives the notice of claimed infringement.

  • Marginal note:Fees related to notices

    (2) The Minister may, by regulation, fix the maximum fee that a person may charge for performing his or her obligations under subsection (1). If no maximum is fixed by regulation, the person may not charge any amount under that subsection.

  • Marginal note:Damages related to notices

    (3) A claimant’s only remedy against a person who fails to perform his or her obligations under subsection (1) is statutory damages in an amount that the court considers just, but not less than $5,000 and not more than $10,000.

  • Marginal note:Regulations — change of amounts

    (4) The Governor in Council may, by regulation, increase or decrease the minimum or maximum amount of statutory damages set out in subsection (3).

Marginal note:Injunctive relief only — providers of information location tools
  • 41.27 (1) In any proceedings for infringement of copyright, the owner of the copyright in a work or other subject-matter is not entitled to any remedy other than an injunction against a provider of an information location tool that is found to have infringed copyright by making a reproduction of the work or other subject-matter or by communicating that reproduction to the public by telecommunication.

  • Marginal note:Conditions for application

    (2) Subsection (1) applies only if the provider, in respect of the work or other subject-matter,

    • (a) makes and caches, or does any act similar to caching, the reproduction in an automated manner for the purpose of providing the information location tool;

    • (b) communicates that reproduction to the public by telecommunication for the purpose of providing the information that has been located by the information location tool;

    • (c) does not modify the reproduction, other than for technical reasons;

    • (d) complies with any conditions relating to the making or caching, or doing of any act similar to caching, of reproductions of the work or other subject-matter, or to the communication of the reproductions to the public by telecommunication, that were specified in a manner consistent with industry practice by whoever made the work or other subject-matter available through the Internet or another digital network and that lend themselves to automated reading and execution; and

    • (e) does not interfere with the use of technology that is lawful and consistent with industry practice in order to obtain data on the use of the work or other subject-matter.

  • Marginal note:Limitation

    (3) If the provider receives a notice of claimed infringement, relating to a work or other subject-matter, that complies with subsection 41.25(2) after the work or other subject-matter has been removed from the electronic location set out in the notice, then subsection (1) applies, with respect to reproductions made from that electronic location, only to infringements that occurred before the day that is 30 days — or the period that may be prescribed by regulation — after the day on which the provider receives the notice.

  • Marginal note:Exception

    (4) Subsection (1) does not apply to the provision of the information location tool if the provision of that tool constitutes an infringement of copyright under subsection 27(2.3).

  • Marginal note:Factors  —  scope of injunction

    (4.1) If it grants an injunction as set out in subsection (1), the court shall, among any other relevant factors, consider the following in establishing the terms of the injunction:

    • (a) the harm likely to be suffered by the copyright owner if steps are not taken to prevent or restrain the infringement; and

    • (b) the burden imposed on the provider and on the operation of the information location tool, including

      • (i) the aggregate effect of the injunction and any injunctions from other proceedings,

      • (ii) whether implementing the injunction would be technically feasible and effective in addressing the infringement,

      • (iii) whether implementing the injunction would interfere with the use of the information location tool for non-infringing acts, and

      • (iv) the availability of less burdensome and comparably effective means of preventing or restraining the infringement.

  • Marginal note:Limitation

    (4.2) A court is not permitted to grant an injunction under section 39.1 against a provider who is the subject of an injunction set out in subsection (1).

  • Meaning of “information location tool”

    (5) In this section, “information location tool” means any tool that makes it possible to locate information that is available through the Internet or another digital network.