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COPYRIGHT LAW FEATURE 50 www.canadianlawyermag.com Williams Wall LLP in Toronto. Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, and it is found in many common law jurisdictions including Canada. Currently, says Ghazi, the Copyright Act's provisions for allowable infringement, including fair use by educational institutions, is "relatively restrictive." Rewording the act to say "such as" and not "one of these eight" exceptions will help it adapt to evolutions in technology, he says. INDU report, Recommendation 19: That the government examine measures to modernize copyright policy with digital technologies affecting Canadians and Canadian institutions, including the relevance of technological protection measures within copyright law, notably to facilitate the maintenance, repair or adaptation of a lawfully acquired device for non-infringing purposes. Biernacki, who successfully represented Nintendo America Inc. in its copyright infringement case against Go Cyber Shopping, says he's encouraged by INDU's recognition of the effective use of technological protection measures as important in creative industries and of Canada's international obligations. However, he is concerned with INDU's comment that it "agrees that the circumvention of TPMs should be allowed for non-infringing purposes, especially given the fact that the Nintendo case provided such a broad interpretation of TPMs." Although Biernacki says he believes the reference to Nintendo should be interpreted neutrally, "if the committee is saying that infringement should be a precondition for TPMs, then that's a problem." INDU Recommendation 28: That the government introduce legislation amending the Copyright Act to increase upper and lower limits of statutory damages provided under ss. 38.1(1), 38.1(2) and 38.1(3) of this Act to account for inflation, based on the years when they were originally set. This recommendation was "a missed opportunity" to more significantly increase the upper limit of the range of statutory damages, to account for higher-value works valued at more than $20,000, says Biernacki says. Untitled-5 1 2019-05-30 3:27 PM