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I have a short educational video (29 minutes) from Australia that is in VHS format. Can I transfer it to DVD?

Last Updated: Feb 25, 2015  |  20 Views
Topics: Copyright

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Under Canadian copyright law, your question concerns a cinematographic work, potential copyright infringement and exceptions to copyright infringement.

Canada’s Copyright Modernization Act (Bill C-11) received Royal Assent, June 29, 2012 but has not been yet been proclaimed pending the Orders-in-council process.  Bill C-11 introduced legal protection for digital locks. It allows Canadians to copy content from one device to another, such as from a CD to a computer or an iPod but the provision does not apply to content protected by  technological protection measures. Examples of digital locks include passwords, encryption software and access codes. Most commercially-produced VHS rights-holders encrypt (Macrovision, Content Scramble Systems) the materials to restrict access or prevent copying.  Breaking that digital lock would make the College a criminal under Bill C-11, although it would be exempt from statutory damages, as the digital lock would be hacked for non-commercial purposes.

Our law provides for exceptions that allow the use of copyright-protected work without permission from the copyright owner or the payment of royalties. Fair Dealing, Educational Institutions, Libraries, Archives and Museums are examples, cited for exceptional user rights.  Section 30.1(1)(c) of the Copyright Act allows libraries, archives and museums to manage and maintain their collections by copying a work in an alternative format, if the original is currently in an obsolete format or the technology required to use the original is unavailable. The amendment in the Copyright Modernization Act - although not yet in force – reads much the same, and also includes the requirement, that a copy not be commercially available in an appropriate medium.  This clause, as I interpret it, allows the library to copy the VHS tape to the DVD format under the Copyright Act and also the Copyright Modernization Act.

Do the anti-circumvention provisions in the new legislation trump the fair dealing exceptions?  Hopefully, this will be clarified in the regulations of the newly proclaimed Act.  If not, educational institutions, libraries and archives etc. will have to draw on  legal interpretations as to the balance between creator and user rights. 
The Association of Canadian Community Colleges has articulated Fair Dealing guidelines based on the Copyright Modernization Act and Supreme Court decisions from 2004 and 2012. Fair dealing is the right to copy material without permission or payment when it is fair to do so.  In Canada it is qualified by two tests.  You could copy the copyright-protected VHS to the DVD and satisfy the first test for fair dealing because the Library’s usage is educational.  Bill C-11 expands the scope of fair dealing exceptions to include: education, parody and satire.  However, the second test for fair dealing is not satisfied because you are copying the whole  of the copy-right protected work, not a short excerpt. It is worth noting that fair dealing guidelines in the Copyright Act do not apply to audio or video recordings.  The implication was, if copying the work affects the commercial market of the original work, then the activity is usually copy-wrong.

In my opinion, your example doesn’t really fit the back-up copy scenario as much as it does the exceptions I’ve identified.  You could probably make a case under “otherwise rendered unusable”, if you wanted to engage the services of an intellectual property lawyer.

Answered by Cathleen de GrootBookmark and Share

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