The Copyright Modernization Act adds a new subsection 27(2.1) to the Copyright Act.

The subsection simply states that, for greater clarity, the provisions of the Copyright Act dealing with secondary infringements do not apply to imported unauthorized copies of works and other subject-matter if such copies would have been excused under limitations or exceptions under the Copyright Act.

It is nothing new, since the existing Section 27(1) only applied to “a copy of a work, sound recording or fixation of a performer’s performance or of a communication signal that the person knows or should have known infringes copyright or would infringe copyright if it had been made in Canada by the person who made it.”

Secondary infringements, of course, include such acts as selling, renting out, distributing, offering for sale or rental, exhibiting in public, possessing for such purposes, and importing into Canada for such purposes.

The problem is that given the uncontrolled expansion of legalized infringements through fair dealing and otherwise, Canada may become a haven for unauthorized works that cannot be used anywhere outside Canada.

For example, many countries rightfully do not have an exception for parodies; most countries do not have broad exceptions with respect to educational use; most countries do not have exceptions with respect to non-commercial user-generated content. The new provision “clarifies” that not only unauthorized use of foreign works by Canadians would be excused if such use falls under one or another exception or limitation: it states that even copies that would be considered to infringe copyright in jurisdictions where such copies were made can still be lawfully used in Canada.

Again, this is nothing new, but the clarification makes it even more disturbing.

BOTTOM LINE: This is one of the few amendments that actually clarifies an existing provision of the Copyright Act. Still, this is very unfortunate that the new Section 27(2.1) makes it clearer that Canada finds it acceptable that it may become a market for laundering copies that are considered infringing in all other countries of the world.