Copyright Act
(R.S.C. , 1985, c. C-42)
(as amended up to June 17, 2019)
An Act respecting copyright
Short Title
Short title
1 This Act may be cited as the Copyright Act.
R.S., c. C-30, s. 1.
Interpretation
Definitions
2 In this Act,
architectural work means any building or structure or any model of a building or
structure; (oeuvre architecturale)
architectural work of art [Repealed, 1993, c. 44, s. 53]
artistic work includes paintings, drawings, maps, charts, plans, photographs,
engravings, sculptures, works of artistic craftsmanship, architectural works, and
compilations of artistic works; (oeuvre artistique)
Berne Convention country means a country that is a party to the Convention
for the Protection of Literary and Artistic Works concluded at Berne on
September 9, 1886, or any one of its revisions, including the Paris Act of 1971;
(pays partie à la Convention de Berne)
Board means the Copyright Board established by subsection 66(1);
(Commission)
book means a volume or a part or division of a volume, in printed form, but does
not include
(a) a pamphlet,
(b) a newspaper, review, magazine or other periodical,
(c) a map, chart, plan or sheet music where the map, chart, plan or sheet
music is separately published, and
(d) an instruction or repair manual that accompanies a product or that is
supplied as an accessory to a service; (livre)
broadcaster means a body that, in the course of operating a broadcasting
undertaking, broadcasts a communication signal in accordance with the law of the
country in which the broadcasting undertaking is carried on, but excludes a body
whose primary activity in relation to communication signals is their
retransmission; (radiodiffuseur)
choreographic work includes any work of choreography, whether or not it has
any story line; (oeuvre chorégraphique)
cinematograph [Repealed, 1997, c. 24, s. 1]
cinematographic work includes any work expressed by any process analogous
to cinematography, whether or not accompanied by a soundtrack; (oeuvre
cinématographique)
collective society means a society, association or corporation that carries on
the business of collective administration of copyright or of the remuneration right
conferred by section 19 or 81 for the benefit of those who, by assignment, grant
of licence, appointment of it as their agent or otherwise, authorize it to act on their
behalf in relation to that collective administration, and
(a) operates a licensing scheme, applicable in relation to a repertoire of works,
performer’s performances, sound recordings or communication signals of
more than one author, performer, sound recording maker or broadcaster,
pursuant to which the society, association or corporation sets out classes of
uses that it agrees to authorize under this Act, and the royalties and terms and
conditions on which it agrees to authorize those classes of uses, or
(b) carries on the business of collecting and distributing royalties or levies
payable under this Act in relation to a repertoire of works, performer’s
performances, sound recordings or communication signals of more than one
author, performer, sound recording maker or broadcaster; (société de
gestion)
collective work means
(a) an encyclopaedia, dictionary, year book or similar work,
(b) a newspaper, review, magazine or similar periodical, and
(c) any work written in distinct parts by different authors, or in which works or
parts of works of different authors are incorporated; (recueil)
commercially available means, in relation to a work or other subject-matter,
(a) available on the Canadian market within a reasonable time and for a
reasonable price and may be located with reasonable effort, or
(b) for which a licence to reproduce, perform in public or communicate to the
public by telecommunication is available from a collective society within a
reasonable time and for a reasonable price and may be located with
reasonable effort; (accessible sur le marché)
communication signal means radio waves transmitted through space without
any artificial guide, for reception by the public; (signal de communication)
compilation means
(a) a work resulting from the selection or arrangement of literary, dramatic,
musical or artistic works or of parts thereof, or
(b) a work resulting from the selection or arrangement of data; (compilation)
computer program means a set of instructions or statements, expressed, fixed,
embodied or stored in any manner, that is to be used directly or indirectly in a
computer in order to bring about a specific result; (programme d’ordinateur)
copyright means the rights described in
(a) section 3, in the case of a work,
(b) sections 15 and 26, in the case of a performer’s performance,
(c) section 18, in the case of a sound recording, or
(d) section 21, in the case of a communication signal; (droit d’auteur)
country includes any territory; (pays)
defendant includes a respondent to an application; (Version anglaise seulement)
delivery [Repealed, 1997, c. 24, s. 1]
dramatic work includes
(a) any piece for recitation, choreographic work or mime, the scenic
arrangement or acting form of which is fixed in writing or otherwise,
(b) any cinematographic work, and
(c) any compilation of dramatic works; (oeuvre dramatique)
educational institution means
(a) a non-profit institution licensed or recognized by or under an Act of
Parliament or the legislature of a province to provide pre-school, elementary,
secondary or post-secondary education,
(b) a non-profit institution that is directed or controlled by a board of education
regulated by or under an Act of the legislature of a province and that provides
continuing, professional or vocational education or training,
(c) a department or agency of any order of government, or any non-profit
body, that controls or supervises education or training referred to in paragraph
(a) or (b), or
(d) any other non-profit institution prescribed by regulation; (établissement
d’enseignement)
engravings includes etchings, lithographs, woodcuts, prints and other similar
works, not being photographs; (gravure)
every original literary, dramatic, musical and artistic work includes every
original production in the literary, scientific or artistic domain, whatever may be
the mode or form of its expression, such as compilations, books, pamphlets and
other writings, lectures, dramatic or dramatico-musical works, musical works,
translations, illustrations, sketches and plastic works relative to geography,
topography, architecture or science; (toute oeuvre littéraire, dramatique, musicale
ou artistique originale)
exclusive distributor means, in relation to a book, a person who
(a) has, before or after the coming into force of this definition, been appointed
in writing, by the owner or exclusive licensee of the copyright in the book in
Canada, as
(i) the only distributor of the book in Canada or any part of Canada, or
(ii) the only distributor of the book in Canada or any part of Canada in
respect of a particular sector of the market, and
(b) meets the criteria established by regulations made under section 2.6,
and, for greater certainty, if there are no regulations made under section 2.6, then
no person qualifies under this definition as an “exclusive distributor”; (distributeur
exclusif)
Her Majesty’s Realms and Territories [Repealed, 1997, c. 24, s. 1]
infringing means
(a) in relation to a work in which copyright subsists, any copy, including any
colourable imitation, made or dealt with in contravention of this Act,
(b) in relation to a performer’s performance in respect of which copyright
subsists, any fixation or copy of a fixation of it made or dealt with in
contravention of this Act,
(c) in relation to a sound recording in respect of which copyright subsists, any
copy of it made or dealt with in contravention of this Act, or
(d) in relation to a communication signal in respect of which copyright
subsists, any fixation or copy of a fixation of it made or dealt with in
contravention of this Act.
The definition includes a copy that is imported in the circumstances set out in
paragraph 27(2)(e) and section 27.1 but does not otherwise include a copy made
with the consent of the owner of the copyright in the country where the copy was
made; (contrefaçon)
lecture includes address, speech and sermon; (conférence)
legal representatives includes heirs, executors, administrators, successors and
assigns, or agents or attorneys who are thereunto duly authorized in writing;
(représentants légaux)
library, archive or museum means
(a) an institution, whether or not incorporated, that is not established or
conducted for profit or that does not form a part of, or is not administered or
directly or indirectly controlled by, a body that is established or conducted for
profit, in which is held and maintained a collection of documents and other
materials that is open to the public or to researchers, or
(b) any other non-profit institution prescribed by regulation; (bibliothèque,
musée ou service d’archives)
literary work includes tables, computer programs, and compilations of literary
works; (oeuvre littéraire)
maker means
(a) in relation to a cinematographic work, the person by whom the
arrangements necessary for the making of the work are undertaken, or
(b) in relation to a sound recording, the person by whom the arrangements
necessary for the first fixation of the sounds are undertaken; (producteur)
Minister, except in sections 44 to 44.12, means the Minister of Industry;
(ministre)
moral rights means the rights described in subsections 14.1(1) and 17.1(1);
(droits moraux)
musical work means any work of music or musical composition, with or without
words, and includes any compilation thereof; (oeuvre musicale)
perceptual disability means a disability that prevents or inhibits a person from
reading or hearing a literary, musical, dramatic or artistic work in its original
format, and includes such a disability resulting from
(a) severe or total impairment of sight or hearing or the inability to focus or
move one’s eyes,
(b) the inability to hold or manipulate a book, or
(c) an impairment relating to comprehension; (déficience perceptuelle)
performance means any acoustic or visual representation of a work, performer’s
performance, sound recording or communication signal, including a
representation made by means of any mechanical instrument, radio receiving set
or television receiving set; (représentation ou exécution)
performer’s performance means any of the following when done by a
performer:
(a) a performance of an artistic work, dramatic work or musical work, whether
or not the work was previously fixed in any material form, and whether or not
the work’s term of copyright protection under this Act has expired,
(b) a recitation or reading of a literary work, whether or not the work’s term of
copyright protection under this Act has expired, or
(c) an improvisation of a dramatic work, musical work or literary work, whether
or not the improvised work is based on a pre-existing work; (prestation)
photograph includes photo-lithograph and any work expressed by any process
analogous to photography; (photographie)
plaintiff includes an applicant; (Version anglaise seulement)
plate includes
(a) any stereotype or other plate, stone, block, mould, matrix, transfer or
negative used or intended to be used for printing or reproducing copies of any
work, and
(b) any matrix or other appliance used or intended to be used for making or
reproducing sound recordings, performer’s performances or communication
signals; (planche)
premises means, in relation to an educational institution, a place where
education or training referred to in the definition “educational institution” is
provided, controlled or supervised by the educational institution; (locaux)
receiving device [Repealed, 1993, c. 44, s. 79]
Rome Convention country means a country that is a party to the International
Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organisations, done at Rome on October 26, 1961; (pays partie à
la Convention de Rome)
sculpture includes a cast or model; (sculpture)
sound recording means a recording, fixed in any material form, consisting of
sounds, whether or not of a performance of a work, but excludes any soundtrack
of a cinematographic work where it accompanies the cinematographic work;
(enregistrement sonore)
telecommunication means any transmission of signs, signals, writing, images or
sounds or intelligence of any nature by wire, radio, visual, optical or other
electromagnetic system; (télécommunication)
treaty country means a Berne Convention country, UCC country, WCT country
or WTO Member; (pays signataire)
UCC country means a country that is a party to the Universal Copyright
Convention, adopted on September 6, 1952 in Geneva, Switzerland, or to that
Convention as revised in Paris, France on July 24, 1971; (pays partie à la
Convention universelle)
WCT country means a country that is a party to the WIPO Copyright Treaty,
adopted in Geneva on December 20, 1996; (pays partie au traité de l’ODA)
work includes the title thereof when such title is original and distinctive; (oeuvre)
work of joint authorship means a work produced by the collaboration of two or
more authors in which the contribution of one author is not distinct from the
contribution of the other author or authors; (oeuvre créée en collaboration)
work of sculpture [Repealed, 1997, c. 24, s. 1]
WPPT country means a country that is a party to the WIPO Performances and
Phonograms Treaty, adopted in Geneva on December 20, 1996; (pays partie au
traité de l’OIEP)
WTO Member means a Member of the World Trade Organization as defined in
subsection 2(1) of the World Trade Organization Agreement Implementation Act.
(membre de l’OMC)
R.S., 1985, c. C-42, s. 2; R.S., 1985, c. 10 (4th Supp.), s. 1; 1988, c. 65, s. 61; 1992, c. 1, s. 145
(F); 1993, c. 23, s. 1, c. 44, ss. 53, 79; 1994, c. 47, s. 56; 1995, c. 1, s. 62; 1997, c. 24, s. 1;
2012, c. 20, s. 2; 2014, c. 32, s. 2; 2018, c. 27, s. 280.
Compilations
2.1 (1) A compilation containing two or more of the categories of literary,
dramatic, musical or artistic works shall be deemed to be a compilation of the
category making up the most substantial part of the compilation.
Idem
(2) The mere fact that a work is included in a compilation does not increase,
decrease or otherwise affect the protection conferred by this Act in respect of the
copyright in the work or the moral rights in respect of the work.
1993, c. 44, s. 54.
Definition of maker
2.11 For greater certainty, the arrangements referred to in paragraph (b) of the
definition maker in section 2, as that term is used in section 19 and in the
definition eligible maker in section 79, include arrangements for entering into
contracts with performers, financial arrangements and technical arrangements
required for the first fixation of the sounds for a sound recording.
1997, c. 24, s. 2.
Definition of publication
2.2 (1) For the purposes of this Act, publication means
(a) in relation to works,
(i) making copies of a work available to the public,
(ii) the construction of an architectural work, and
(iii) the incorporation of an artistic work into an architectural work, and
(b) in relation to sound recordings, making copies of a sound recording
available to the public,
but does not include
(c) the performance in public, or the communication to the public by
telecommunication, of a literary, dramatic, musical or artistic work or a sound
recording, or
(d) the exhibition in public of an artistic work.
Issue of photographs and engravings
(2) For the purpose of subsection (1), the issue of photographs and engravings of
sculptures and architectural works is not deemed to be publication of those
works.
Where no consent of copyright owner
(3) For the purposes of this Act, other than in respect of infringement of copyright,
a work or other subject-matter is not deemed to be published or performed in
public or communicated to the public by telecommunication if that act is done
without the consent of the owner of the copyright.
Unpublished works
(4) Where, in the case of an unpublished work, the making of the work is
extended over a considerable period, the conditions of this Act conferring
copyright are deemed to have been complied with if the author was, during any
substantial part of that period, a subject or citizen of, or a person ordinarily
resident in, a country to which this Act extends.
1997, c. 24, s. 2.
Telecommunication
2.3 A person who communicates a work or other subject-matter to the public by
telecommunication does not by that act alone perform it in public, nor by that act
alone is deemed to authorize its performance in public.
1997, c. 24, s. 2.
Communication to the public by telecommunication
2.4 (1) For the purposes of communication to the public by telecommunication,
(a) persons who occupy apartments, hotel rooms or dwelling units situated in
the same building are part of the public, and a communication intended to be
received exclusively by such persons is a communication to the public;
(b) a person whose only act in respect of the communication of a work or
other subject-matter to the public consists of providing the means of
telecommunication necessary for another person to so communicate the work
or other subject-matter does not communicate that work or other subject-
matter to the public; and
(c) where a person, as part of
(i) a network, within the meaning of the Broadcasting Act, whose
operations result in the communication of works or other subject-matter to
the public, or
(ii) any programming undertaking whose operations result in the
communication of works or other subject-matter to the public,
transmits by telecommunication a work or other subject-matter that is
communicated to the public by another person who is not a retransmitter of a
signal within the meaning of subsection 31(1), the transmission and
communication of that work or other subject-matter by those persons
constitute a single communication to the public for which those persons are
jointly and severally liable.
Communication to the public by telecommunication
(1.1) For the purposes of this Act, communication of a work or other subject-
matter to the public by telecommunication includes making it available to the
public by telecommunication in a way that allows a member of the public to have
access to it from a place and at a time individually chosen by that member of the
public.
Regulations
(2) The Governor in Council may make regulations defining “programming
undertaking” for the purpose of paragraph (1)(c).
Exception
(3) A work is not communicated in the manner described in paragraph (1)(c) or 3
(1)(f) where a signal carrying the work is retransmitted to a person who is a
retransmitter within the meaning of subsection 31(1).
1997, c. 24, s. 2; 2002, c. 26, s. 1; 2012, c. 20, s. 3.
What constitutes rental
2.5 (1) For the purposes of paragraphs 3(1)(h) and (i), 15(1)(c) and 18(1)(c), an
arrangement, whatever its form, constitutes a rental of a computer program or
sound recording if, and only if,
(a) it is in substance a rental, having regard to all the circumstances; and
(b) it is entered into with motive of gain in relation to the overall operations of
the person who rents out the computer program or sound recording, as the
case may be.
Motive of gain
(2) For the purpose of paragraph (1)(b), a person who rents out a computer
program or sound recording with the intention of recovering no more than the
costs, including overhead, associated with the rental operations does not by that
act alone have a motive of gain in relation to the rental operations.
1997, c. 24, s. 2.
Exclusive distributor
2.6 The Governor in Council may make regulations establishing distribution
criteria for the purpose of paragraph (b) of the definition exclusive distributor in
section 2.
1997, c. 24, s. 2.
Exclusive licence
2.7 For the purposes of this Act, an exclusive licence is an authorization to do any
act that is subject to copyright to the exclusion of all others including the copyright
owner, whether the authorization is granted by the owner or an exclusive licensee
claiming under the owner.
1997, c. 24, s. 2.
PART I
Copyright and Moral Rights in Works
Copyright
Copyright in works
3 (1) For the purposes of this Act, copyright, in relation to a work, means the
sole right to produce or reproduce the work or any substantial part thereof in any
material form whatever, to perform the work or any substantial part thereof in
public or, if the work is unpublished, to publish the work or any substantial part
thereof, and includes the sole right
(a) to produce, reproduce, perform or publish any translation of the work,
(b) in the case of a dramatic work, to convert it into a novel or other non-
dramatic work,
(c) in the case of a novel or other non-dramatic work, or of an artistic work, to
convert it into a dramatic work, by way of performance in public or otherwise,
(d) in the case of a literary, dramatic or musical work, to make any sound
recording, cinematograph film or other contrivance by means of which the
work may be mechanically reproduced or performed,
(e) in the case of any literary, dramatic, musical or artistic work, to reproduce,
adapt and publicly present the work as a cinematographic work,
(f) in the case of any literary, dramatic, musical or artistic work, to
communicate the work to the public by telecommunication,
(g) to present at a public exhibition, for a purpose other than sale or hire, an
artistic work created after June 7, 1988, other than a map, chart or plan,
(h) in the case of a computer program that can be reproduced in the ordinary
course of its use, other than by a reproduction during its execution in
conjunction with a machine, device or computer, to rent out the computer
program,
(i) in the case of a musical work, to rent out a sound recording in which the
work is embodied, and
(j) in the case of a work that is in the form of a tangible object, to sell or
otherwise transfer ownership of the tangible object, as long as that ownership
has never previously been transferred in or outside Canada with the
authorization of the copyright owner,
and to authorize any such acts.
Simultaneous fixing
(1.1) A work that is communicated in the manner described in paragraph (1)(f) is
fixed even if it is fixed simultaneously with its communication.
(1.2) to (4) [Repealed, 1997, c. 24, s. 3]
R.S., 1985, c. C-42, s. 3; R.S., 1985, c. 10 (4th Supp.), s. 2; 1988, c. 65, s. 62; 1993, c. 23, s. 2, c.
44, s. 55; 1997, c. 24, s. 3; 2012, c. 20, s. 4.
4 [Repealed, 1997, c. 24, s. 4]
Works in which Copyright may Subsist
Conditions for subsistence of copyright
5 (1) Subject to this Act, copyright shall subsist in Canada, for the term
hereinafter mentioned, in every original literary, dramatic, musical and artistic
work if any one of the following conditions is met:
(a) in the case of any work, whether published or unpublished, including a
cinematographic work, the author was, at the date of the making of the work, a
citizen or subject of, or a person ordinarily resident in, a treaty country;
(b) in the case of a cinematographic work, whether published or unpublished,
the maker, at the date of the making of the cinematographic work,
(i) if a corporation, had its headquarters in a treaty country, or
(ii) if a natural person, was a citizen or subject of, or a person ordinarily
resident in, a treaty country; or
(c) in the case of a published work, including a cinematographic work,
(i) in relation to subparagraph 2.2(1)(a)(i), the first publication in such a
quantity as to satisfy the reasonable demands of the public, having regard
to the nature of the work, occurred in a treaty country, or
(ii) in relation to subparagraph 2.2(1)(a)(ii) or (iii), the first publication
occurred in a treaty country.
Protection for older works
(1.01) For the purposes of subsection (1), a country that becomes a Berne
Convention country, a WCT country or a WTO Member after the date of the
making or publication of a work is deemed to have been a Berne Convention
country, a WCT country or a WTO Member, as the case may be, at that date,
subject to subsection (1.02) and sections 33 to 33.2.
Limitation
(1.02) Subsection (1.01) does not confer copyright protection in Canada on a
work whose term of copyright protection in the country referred to in that
subsection had expired before that country became a Berne Convention country,
a WCT country or a WTO Member, as the case may be.
Application of subsections (1.01) and (1.02)
(1.03) Subsections (1.01) and (1.02) apply, and are deemed to have applied,
regardless of whether the country in question became a Berne Convention
country, a WCT country or a WTO Member before or after the coming into force
of those subsections.
First publication
(1.1) The first publication described in subparagraph (1)(c)(i) or (ii) is deemed to
have occurred in a treaty country notwithstanding that it in fact occurred
previously elsewhere, if the interval between those two publications did not
exceed thirty days.
Idem
(1.2) Copyright shall not subsist in Canada otherwise than as provided by
subsection (1), except in so far as the protection conferred by this Act is extended
as hereinafter provided to foreign countries to which this Act does not extend.
Minister may extend copyright to other countries
(2) Where the Minister certifies by notice, published in the Canada Gazette, that
any country that is not a treaty country grants or has undertaken to grant, either
by treaty, convention, agreement or law, to citizens of Canada, the benefit of
copyright on substantially the same basis as to its own citizens or copyright
protection substantially equal to that conferred by this Act, the country shall, for
the purpose of the rights conferred by this Act, be treated as if it were a country to
which this Act extends, and the Minister may give a certificate, notwithstanding
that the remedies for enforcing the rights, or the restrictions on the importation of
copies of works, under the law of such country, differ from those in this Act.
(2.1) [Repealed, 1994, c. 47, s. 57]
(3) to (6) [Repealed, 1997, c. 24, s. 5]
Reciprocity protection preserved
(7) For greater certainty, the protection to which a work is entitled by virtue of a
notice published under subsection (2), or under that subsection as it read at any
time before the coming into force of this subsection, is not affected by reason only
of the country in question becoming a treaty country.
R.S., 1985, c. C-42, s. 5; 1993, c. 15, s. 2, c. 44, s. 57; 1994, c. 47, s. 57; 1997, c. 24, s. 5; 2001,
c. 34, s. 34; 2012, c. 20, s. 5.
Term of Copyright
Term of copyright
6 The term for which copyright shall subsist shall, except as otherwise expressly
provided by this Act, be the life of the author, the remainder of the calendar year
in which the author dies, and a period of fifty years following the end of that
calendar year.
R.S., 1985, c. C-42, s. 6; 1993, c. 44, s. 58.
Anonymous and pseudonymous works
6.1 Except as provided in section 6.2, where the identity of the author of a work is
unknown, copyright in the work shall subsist for whichever of the following terms
ends earlier:
(a) a term consisting of the remainder of the calendar year of the first
publication of the work and a period of fifty years following the end of that
calendar year, and
(b) a term consisting of the remainder of the calendar year of the making of
the work and a period of seventy-five years following the end of that calendar
year,
but where, during that term, the author’s identity becomes commonly known, the
term provided in section 6 applies.
1993, c. 44, s. 58.
Anonymous and pseudonymous works of joint authorship
6.2 Where the identity of all the authors of a work of joint authorship is unknown,
copyright in the work shall subsist for whichever of the following terms ends
earlier:
(a) a term consisting of the remainder of the calendar year of the first
publication of the work and a period of fifty years following the end of that
calendar year, and
(b) a term consisting of the remainder of the calendar year of the making of
the work and a period of seventy-five years following the end of that calendar
year,
but where, during that term, the identity of one or more of the authors becomes
commonly known, copyright shall subsist for the life of whichever of those authors
dies last, the remainder of the calendar year in which that author dies, and a
period of fifty years following the end of that calendar year.
1993, c. 44, s. 58.
Term of copyright in posthumous works
7 (1) Subject to subsection (2), in the case of a literary, dramatic or musical work,
or an engraving, in which copyright subsists at the date of the death of the author
or, in the case of a work of joint authorship, at or immediately before the date of
the death of the author who dies last, but which has not been published or, in the
case of a lecture or a dramatic or musical work, been performed in public or
communicated to the public by telecommunication, before that date, copyright
shall subsist until publication, or performance in public or communication to the
public by telecommunication, whichever may first happen, for the remainder of
the calendar year of the publication or of the performance in public or
communication to the public by telecommunication, as the case may be, and for a
period of fifty years following the end of that calendar year.
Application of subsection (1)
(2) Subsection (1) applies only where the work in question was published or
performed in public or communicated to the public by telecommunication, as the
case may be, before the coming into force of this section.
Transitional provision
(3) Where
(a) a work has not, at the coming into force of this section, been published or
performed in public or communicated to the public by telecommunication,
(b) subsection (1) would apply to that work if it had been published or
performed in public or communicated to the public by telecommunication
before the coming into force of this section, and
(c) the relevant death referred to in subsection (1) occurred during the period
of fifty years immediately before the coming into force of this section,
copyright shall subsist in the work for the remainder of the calendar year in which
this section comes into force and for a period of fifty years following the end of
that calendar year, whether or not the work is published or performed in public or
communicated to the public by telecommunication after the coming into force of
this section.
Transitional provision
(4) Where
(a) a work has not, at the coming into force of this section, been published or
performed in public or communicated to the public by telecommunication,
(b) subsection (1) would apply to that work if it had been published or
performed in public or communicated to the public by telecommunication
before the coming into force of this section, and
(c) the relevant death referred to in subsection (1) occurred more than fifty
years before the coming into force of this section,
copyright shall subsist in the work for the remainder of the calendar year in which
this section comes into force and for a period of five years following the end of
that calendar year, whether or not the work is published or performed in public or
communicated to the public by telecommunication after the coming into force of
this section.
R.S., 1985, c. C-42, s. 7; 1993, c. 44, s. 58; 1997, c. 24, s. 6.
8 [Repealed, 1993, c. 44, s. 59]
Cases of joint authorship
9 (1) In the case of a work of joint authorship, except as provided in section 6.2,
copyright shall subsist during the life of the author who dies last, for the remainder
of the calendar year of that author’s death, and for a period of fifty years following
the end of that calendar year, and references in this Act to the period after the
expiration of any specified number of years from the end of the calendar year of
the death of the author shall be construed as references to the period after the
expiration of the like number of years from the end of the calendar year of the
death of the author who dies last.
Nationals of other countries
(2) Authors who are nationals of any country, other than a country that is a party
to the North American Free Trade Agreement, that grants a term of protection
shorter than that mentioned in subsection (1) are not entitled to claim a longer
term of protection in Canada.
R.S., 1985, c. C-42, s. 9; 1993, c. 44, s. 60.
10 [Repealed, 2012, c. 20, s. 6]
11 [Repealed, 1997, c. 24, s. 8]
Cinematographic works
11.1 Except for cinematographic works in which the arrangement or acting form
or the combination of incidents represented give the work a dramatic character,
copyright in a cinematographic work or a compilation of cinematographic works
shall subsist
(a) for the remainder of the calendar year of the first publication of the
cinematographic work or of the compilation, and for a period of fifty years
following the end of that calendar year; or
(b) if the cinematographic work or compilation is not published before the
expiration of fifty years following the end of the calendar year of its making, for
the remainder of that calendar year and for a period of fifty years following the
end of that calendar year.
1993, c. 44, s. 60; 1997, c. 24, s. 9.
Where copyright belongs to Her Majesty
12 Without prejudice to any rights or privileges of the Crown, where any work is,
or has been, prepared or published by or under the direction or control of Her
Majesty or any government department, the copyright in the work shall, subject to
any agreement with the author, belong to Her Majesty and in that case shall
continue for the remainder of the calendar year of the first publication of the work
and for a period of fifty years following the end of that calendar year.
R.S., 1985, c. C-42, s. 12; 1993, c. 44, s. 60.
Ownership of Copyright
Ownership of copyright
13 (1) Subject to this Act, the author of a work shall be the first owner of the
copyright therein.
(2) [Repealed, 2012, c. 20, s. 7]
Work made in the course of employment
(3) Where the author of a work was in the employment of some other person
under a contract of service or apprenticeship and the work was made in the
course of his employment by that person, the person by whom the author was
employed shall, in the absence of any agreement to the contrary, be the first
owner of the copyright, but where the work is an article or other contribution to a
newspaper, magazine or similar periodical, there shall, in the absence of any
agreement to the contrary, be deemed to be reserved to the author a right to
restrain the publication of the work, otherwise than as part of a newspaper,
magazine or similar periodical.
Assignments and licences
(4) The owner of the copyright in any work may assign the right, either wholly or
partially, and either generally or subject to limitations relating to territory, medium
or sector of the market or other limitations relating to the scope of the assignment,
and either for the whole term of the copyright or for any other part thereof, and
may grant any interest in the right by licence, but no assignment or grant is valid
unless it is in writing signed by the owner of the right in respect of which the
assignment or grant is made, or by the owner’s duly authorized agent.
Ownership in case of partial assignment
(5) Where, under any partial assignment of copyright, the assignee becomes
entitled to any right comprised in copyright, the assignee, with respect to the
rights so assigned, and the assignor, with respect to the rights not assigned, shall
be treated for the purposes of this Act as the owner of the copyright, and this Act
has effect accordingly.
Assignment of right of action
(6) For greater certainty, it is deemed always to have been the law that a right of
action for infringement of copyright may be assigned in association with the
assignment of the copyright or the grant of an interest in the copyright by licence.
Exclusive licence
(7) For greater certainty, it is deemed always to have been the law that a grant of
an exclusive licence in a copyright constitutes the grant of an interest in the
copyright by licence.
R.S., 1985, c. C-42, s. 13; 1997, c. 24, s. 10; 2012, c. 20, s. 7.
Limitation where author is first owner of copyright
14 (1) Where the author of a work is the first owner of the copyright therein, no
assignment of the copyright and no grant of any interest therein, made by him,
otherwise than by will, after June 4, 1921, is operative to vest in the assignee or
grantee any rights with respect to the copyright in the work beyond the expiration
of twenty-five years from the death of the author, and the reversionary interest in
the copyright expectant on the termination of that period shall, on the death of the
author, notwithstanding any agreement to the contrary, devolve on his legal
representatives as part of the estate of the author, and any agreement entered
into by the author as to the disposition of such reversionary interest is void.
Restriction
(2) Nothing in subsection (1) shall be construed as applying to the assignment of
the copyright in a collective work or a licence to publish a work or part of a work
as part of a collective work.
(3) [Repealed, 1997, c. 24, s. 11]
(4) [Repealed, R.S., 1985, c. 10 (4th Supp.), s. 3]
R.S., 1985, c. C-42, s. 14; R.S., 1985, c. 10 (4th Supp.), s. 3; 1997, c. 24, s. 11.
14.01 [Repealed, 1997, c. 24, s. 12]
Moral Rights
Moral rights
14.1 (1) The author of a work has, subject to section 28.2, the right to the integrity
of the work and, in connection with an act mentioned in section 3, the right, where
reasonable in the circumstances, to be associated with the work as its author by
name or under a pseudonym and the right to remain anonymous.
No assignment of moral rights
(2) Moral rights may not be assigned but may be waived in whole or in part.
No waiver by assignment
(3) An assignment of copyright in a work does not by that act alone constitute a
waiver of any moral rights.
Effect of waiver
(4) Where a waiver of any moral right is made in favour of an owner or a licensee
of copyright, it may be invoked by any person authorized by the owner or licensee
to use the work, unless there is an indication to the contrary in the waiver.
R.S., 1985, c. 10 (4th Supp.), s. 4.
Term
14.2 (1) Moral rights in respect of a work subsist for the same term as the
copyright in the work.
Succession
(2) The moral rights in respect of a work pass, on the death of its author, to
(a) the person to whom those rights are specifically bequeathed;
(b) where there is no specific bequest of those moral rights and the author
dies testate in respect of the copyright in the work, the person to whom that
copyright is bequeathed; or
(c) where there is no person described in paragraph (a) or (b), the person
entitled to any other property in respect of which the author dies intestate.
Subsequent succession
(3) Subsection (2) applies, with such modifications as the circumstances require,
on the death of any person who holds moral rights.
R.S., 1985, c. 10 (4th Supp.), s. 4; 1997, c. 24, s. 13.
PART II
Copyright in Performers’ Performances, Sound Recordings and Communication Signals and Moral Rights in Performers’ Performances
Performers’ Rights
Copyright
Copyright in performer’s performance
15 (1) Subject to subsection (2), a performer has a copyright in the performer’s
performance, consisting of the sole right to do the following in relation to the
performer’s performance or any substantial part thereof:
(a) if it is not fixed,
(i) to communicate it to the public by telecommunication,
(ii) to perform it in public, where it is communicated to the public by
telecommunication otherwise than by communication signal, and
(iii) to fix it in any material form,
(b) if it is fixed,
(i) to reproduce any fixation that was made without the performer’s
authorization,
(ii) where the performer authorized a fixation, to reproduce any
reproduction of that fixation, if the reproduction being reproduced was
made for a purpose other than that for which the performer’s authorization
was given, and
(iii) where a fixation was permitted under Part III or VIII, to reproduce any
reproduction of that fixation, if the reproduction being reproduced was
made for a purpose other than one permitted under Part III or VIII, and
(c) to rent out a sound recording of it,
and to authorize any such acts.
Copyright in performer’s performance
(1.1) Subject to subsections (2.1) and (2.2), a performer’s copyright in the
performer’s performance consists of the sole right to do the following acts in
relation to the performer’s performance or any substantial part of it and to
authorize any of those acts:
(a) if it is not fixed,
(i) to communicate it to the public by telecommunication,
(ii) to perform it in public, if it is communicated to the public by
telecommunication otherwise than by communication signal, and
(iii) to fix it in any material form;
(b) if it is fixed in a sound recording, to reproduce that fixation;
(c) to rent out a sound recording of it;
(d) to make a sound recording of it available to the public by
telecommunication in a way that allows a member of the public to have access
to the sound recording from a place and at a time individually chosen by that
member of the public and to communicate the sound recording to the public
by telecommunication in that way; and
(e) if it is fixed in a sound recording that is in the form of a tangible object, to
sell or otherwise transfer ownership of the tangible object, as long as that
ownership has never previously been transferred in or outside Canada with
the authorization of the owner of the copyright in the performer’s performance.
Conditions
(2) Subsection (1) applies only if the performer’s performance
(a) takes place in Canada or in a Rome Convention country;
(b) is fixed in
(i) a sound recording whose maker, at the time of the first fixation,
(A) if a natural person, was a Canadian citizen or permanent resident
within the meaning of subsection 2(1) of the Immigration and Refugee
Protection Act, or a citizen or permanent resident of a Rome
Convention country, or
(B) if a corporation, had its headquarters in Canada or in a Rome
Convention country, or
(ii) a sound recording whose first publication in such a quantity as to
satisfy the reasonable demands of the public occurred in Canada or in a
Rome Convention country; or
(c) is transmitted at the time of the performer’s performance by a
communication signal broadcast from Canada or a Rome Convention country
by a broadcaster that has its headquarters in the country of broadcast.
Conditions for copyright
(2.1) Subsection (1.1) applies if
(a) the performer’s performance takes place in Canada;
(b) the performer’s performance is fixed in
(i) a sound recording whose maker, at the time of its first fixation,
(A) was a Canadian citizen or permanent resident as defined in
subsection 2(1) of the Immigration and Refugee Protection Act, in the
case of a natural person, or
(B) had its headquarters in Canada, in the case of a corporation, or
(ii) a sound recording whose first publication in a quantity sufficient to
satisfy the reasonable demands of the public occurred in Canada; or
(c) the performer’s performance is transmitted at the time of its performance
by a communication signal broadcast from Canada by a broadcaster that has
its headquarters in Canada.
Conditions for copyright
(2.2) Subsection (1.1) also applies if
(a) the performer’s performance takes place in a WPPT country;
(b) the performer’s performance is fixed in
(i) a sound recording whose maker, at the time of its first fixation,
(A) was a citizen or permanent resident of a WPPT country, in the case
of a natural person, or
(B) had its headquarters in a WPPT country, in the case of a
corporation, or
(ii) a sound recording whose first publication in a quantity sufficient to
satisfy the reasonable demands of the public occurred in a WPPT country;
or
(c) the performer’s performance is transmitted at the time of its performance
by a communication signal broadcast from a WPPT country by a broadcaster
that has its headquarters in that country.
Publication
(3) The first publication is deemed to have occurred in a country referred to in
paragraph (2)(b) notwithstanding that it in fact occurred previously elsewhere, if
the interval between those two publications does not exceed thirty days.
Publication
(4) The first publication of a sound recording is deemed to have occurred in a
WPPT country, despite an earlier publication elsewhere, if the interval between
the publication in that WPPT country and the earlier publication does not exceed
30 days.
R.S., 1985, c. C-42, s. 15; 1993, c. 44, s. 61; 1997, c. 24, s. 14; 2001, c. 27, s. 235; 2012, c. 20,
s. 9.
Contractual arrangements
16 Nothing in section 15 prevents the performer from entering into a contract
governing the use of the performer’s performance for the purpose of
broadcasting, fixation or retransmission.
R.S., 1985, c. C-42, s. 16; 1994, c. 47, s. 59; 1997, c. 24, s. 14.
Cinematographic works
17 (1) Where the performer authorizes the embodiment of the performer’s
performance in a cinematographic work, the performer may no longer exercise, in
relation to the performance where embodied in that cinematographic work, the
copyright referred to in subsection 15(1).
Right to remuneration
(2) Where there is an agreement governing the embodiment referred to in
subsection (1) and that agreement provides for a right to remuneration for the
reproduction, performance in public or communication to the public by
telecommunication of the cinematographic work, the performer may enforce that
right against
(a) the other party to the agreement or, if that party assigns the agreement,
the assignee, and
(b) any other person who
(i) owns the copyright in the cinematographic work governing the
reproduction of the cinematographic work, its performance in public or its
communication to the public by telecommunication, and
(ii) reproduces the cinematographic work, performs it in public or
communicates it to the public by telecommunication,
and persons referred to in paragraphs (a) and (b) are jointly and severally liable to
the performer in respect of the remuneration relating to that copyright.
Application of subsection (2)
(3) Subsection (2) applies only if the performer’s performance is embodied in a
prescribed cinematographic work.
Exception
(4) If so requested by a country that is a party to the North American Free Trade
Agreement, the Minister may, by a statement published in the Canada Gazette,
grant the benefits conferred by this section, subject to any terms and conditions
specified in the statement, to performers who are nationals of that country or
another country that is a party to the Agreement or are Canadian citizens or
permanent residents within the meaning of subsection 2(1) of the Immigration and
Refugee Protection Act and whose performer’s performances are embodied in
works other than the prescribed cinematographic works referred to in subsection
(3).
R.S., 1985, c. C-42, s. 17; 1994, c. 47, s. 59; 1997, c. 24, s. 14; 2001, c. 27, s. 236.
Moral Rights
Moral rights
17.1 (1) In the cases referred to in subsections 15(2.1) and (2.2), a performer of a
live aural performance or a performance fixed in a sound recording has, subject
to subsection 28.2(1), the right to the integrity of the performance, and — in
connection with an act mentioned in subsection 15(1.1) or one for which the
performer has a right to remuneration under section 19 — the right, if it is
reasonable in the circumstances, to be associated with the performance as its
performer by name or under a pseudonym and the right to remain anonymous.
No assignment of moral rights
(2) Moral rights may not be assigned but may be waived in whole or in part.
No waiver by assignment
(3) An assignment of copyright in a performer’s performance does not by itself
constitute a waiver of any moral rights.
Effect of waiver
(4) If a waiver of any moral right is made in favour of an owner or a licensee of a
copyright, it may be invoked by any person authorized by the owner or licensee to
use the performer’s performance, unless there is an indication to the contrary in
the waiver.
2012, c. 20, s. 10.
Application and term
17.2 (1) Subsection 17.1(1) applies only in respect of a performer’s performance
that occurs after the coming into force of that subsection. The moral rights subsist
for the same term as the copyright in that performer’s performance.
Succession
(2) The moral rights in respect of a performer’s performance pass, on the
performer’s death, to
(a) the person to whom those rights are specifically bequeathed;
(b) if there is not a specific bequest of those moral rights and the performer
dies testate in respect of the copyright in the performer’s performance, the
person to whom that copyright is bequeathed; or
(c) if there is not a person as described in paragraph (a) or (b), the person
entitled to any other property in respect of which the performer dies intestate.
Subsequent succession
(3) Subsection (2) applies, with any modifications that the circumstances require,
on the death of any person who holds moral rights.
2012, c. 20, s. 10.
Rights of Sound Recording Makers
Copyright in sound recordings
18 (1) Subject to subsection (2), the maker of a sound recording has a copyright
in the sound recording, consisting of the sole right to do the following in relation to
the sound recording or any substantial part thereof:
(a) to publish it for the first time,
(b) to reproduce it in any material form, and
(c) to rent it out,
and to authorize any such acts.
Copyright in sound recordings
(1.1) Subject to subsections (2.1) and (2.2), a sound recording maker’s copyright
in the sound recording also includes the sole right to do the following acts in
relation to the sound recording or any substantial part of it and to authorize any of
those acts:
(a) to make it available to the public by telecommunication in a way that allows
a member of the public to have access to it from a place and at a time
individually chosen by that member of the public and to communicate it to the
public by telecommunication in that way; and
(b) if it is in the form of a tangible object, to sell or otherwise transfer
ownership of the tangible object, as long as that ownership has never
previously been transferred in or outside Canada with the authorization of the
owner of the copyright in the sound recording.
Conditions for copyright
(2) Subsection (1) applies only if
(a) at the time of the first fixation or, if that first fixation was extended over a
considerable period, during any substantial part of that period, the maker of
the sound recording
(i) was a Canadian citizen or permanent resident as defined in subsection
2(1) of the Immigration and Refugee Protection Act,
(ii) was a citizen or permanent resident of a Berne Convention country, a
Rome Convention country, a WPPT country or a country that is a WTO
Member, or
(iii) had its headquarters in one of those countries, in the case of a
corporation; or
(b) the first publication of the sound recording in a quantity sufficient to satisfy
the reasonable demands of the public occurred in any country referred to in
paragraph (a).
Conditions for copyright
(2.1) Subsection (1.1) applies if
(a) at the time of the first fixation or, if that first fixation was extended over a
considerable period, during any substantial part of that period, the maker of
the sound recording
(i) was a Canadian citizen or permanent resident as defined in subsection
2(1) of the Immigration and Refugee Protection Act, or
(ii) had its headquarters in Canada, in the case of a corporation; or
(b) the first publication of the sound recording in a quantity sufficient to satisfy
the reasonable demands of the public occurred in Canada.
Conditions for copyright
(2.2) Subsection (1.1) also applies if
(a) at the time of the first fixation or, if that first fixation was extended over a
considerable period, during any substantial part of that period, the maker of
the sound recording
(i) was a citizen or permanent resident of a WPPT country, or
(ii) had its headquarters in a WPPT country, in the case of a corporation;
or
(b) the first publication of the sound recording in a quantity sufficient to satisfy
the reasonable demands of the public occurred in a WPPT country.
Publication
(3) The first publication is deemed to have occurred in a country referred to in
paragraph (2)(a) notwithstanding that it in fact occurred previously elsewhere, if
the interval between those two publications does not exceed thirty days.
Publication
(4) The first publication of a sound recording is deemed to have occurred in a
WPPT country, despite an earlier publication elsewhere, if the interval between
the publication in that WPPT country and the earlier publication does not exceed
30 days.
R.S., 1985, c. C-42, s. 18; R.S., 1985, c. 10 (4th Supp.), s. 17(F); 1994, c. 47, s. 59; 1997, c. 24, s.
14; 2001, c. 27, s. 237; 2012, c. 20, s. 11.
Provisions Applicable to both Performers and Sound Recording Makers
Right to remuneration — Canada
19 (1) If a sound recording has been published, the performer and maker are
entitled, subject to subsection 20(1), to be paid equitable remuneration for its
performance in public or its communication to the public by telecommunication,
except for a communication in the circumstances referred to in paragraph 15(1.1)
(d) or 18(1.1)(a) and any retransmission.
Right to remuneration — Rome Convention country
(1.1) If a sound recording has been published, the performer and maker are
entitled, subject to subsections 20(1.1) and (2), to be paid equitable remuneration
for its performance in public or its communication to the public by
telecommunication, except for
(a) a communication in the circumstances referred to in paragraph 15(1.1)(d)
or 18(1.1)(a), if the person entitled to the equitable remuneration is entitled to
the right referred to in those paragraphs for that communication; and
(b) any retransmission.
Right to remuneration — WPPT country
(1.2) If a sound recording has been published, the performer and maker are
entitled, subject to subsections 20(1.2) and (2.1), to be paid equitable
remuneration for its performance in public or its communication to the public by
telecommunication, except for a communication in the circumstances referred to
in paragraph 15(1.1)(d) or 18(1.1)(a) and any retransmission.
Royalties
(2) For the purpose of providing the remuneration mentioned in this section, a
person who performs a published sound recording in public or communicates it to
the public by telecommunication is liable to pay royalties
(a) in the case of a sound recording of a musical work, to the collective society
authorized under Part VII.1 to collect them; or
(b) in the case of a sound recording of a literary work or dramatic work, to
either the maker of the sound recording or the performer.
Division of royalties
(3) The royalties, once paid pursuant to paragraph (2)(a) or (b), shall be divided
so that
(a) the performer or performers receive in aggregate fifty per cent; and
(b) the maker or makers receive in aggregate fifty per cent.
R.S., 1985, c. C-42, s. 19; 1994, c. 47, s. 59; 1997, c. 24, s. 14; 2012, c. 20, s. 12; 2018, c. 27, s.
281.
Deemed publication — Canada
19.1 Despite subsection 2.2(1), a sound recording that has been made available
to the public by telecommunication in a way that allows a member of the public to
access it from a place and at a time individually chosen by that member of the
public, or that has been communicated to the public by telecommunication in that
way, is deemed to have been published for the purposes of subsection 19(1).
2012, c. 20, s. 13.
Deemed publication — WPPT country
19.2 Despite subsection 2.2(1), a sound recording that has been made available
to the public by telecommunication in a way that allows a member of the public to
access it from a place and at a time individually chosen by that member of the
public, or that has been communicated to the public by telecommunication in that
way, is deemed to have been published for the purposes of subsection 19(1.2).
2012, c. 20, s. 14.
Conditions — Canada
20 (1) The right to remuneration conferred by subsection 19(1) applies only if
(a) the maker was, at the date of the first fixation, a Canadian citizen or
permanent resident within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act or, if a corporation, had its headquarters in
Canada; or
(b) all the fixations done for the sound recording occurred in Canada.
Conditions — Rome Convention country
(1.1) The right to remuneration conferred by subsection 19(1.1) applies only if
(a) the maker was, at the date of the first fixation, a citizen or permanent
resident of a Rome Convention country or, if a corporation, had its
headquarters in a Rome Convention country; or
(b) all the fixations done for the sound recording occurred in a Rome
Convention country.
Conditions — WPPT country
(1.2) The right to remuneration conferred by subsection 19(1.2) applies only if
(a) the maker was, at the date of the first fixation, a citizen or permanent
resident of a WPPT country or, if a corporation, had its headquarters in a
WPPT country; or
(b) all the fixations done for the sound recording occurred in a WPPT country.
Exception — Rome Convention country
(2) Despite subsection (1.1), if the Minister is of the opinion that a Rome
Convention country does not grant a right to remuneration, similar in scope and
duration to that provided by subsection 19(1.1), for the performance in public or
the communication to the public of a sound recording whose maker, at the date of
its first fixation, was a Canadian citizen or permanent resident within the meaning
of subsection 2(1) of the Immigration and Refugee Protection Act or, if a
corporation, had its headquarters in Canada, the Minister may, by a statement
published in the Canada Gazette, limit the scope and duration of the protection
for sound recordings whose first fixation is done by a maker who is a citizen or
permanent resident of that country or, if a corporation, has its headquarters in that
country.
Exception — WPPT country
(2.1) Despite subsection (1.2), if the Minister is of the opinion that a WPPT
country does not grant a right to remuneration, similar in scope and duration to
that provided by subsection 19(1.2), for the performance in public or the
communication to the public of a sound recording whose maker, at the date of its
first fixation, was a Canadian citizen or permanent resident within the meaning of
subsection 2(1) of the Immigration and Refugee Protection Act or, if a
corporation, had its headquarters in Canada, the Minister may, by a statement
published in the Canada Gazette, limit the scope and duration of the protection
for sound recordings whose first fixation is done by a maker who is a citizen or
permanent resident of that country or, if a corporation, has its headquarters in that
country.
Exception
(3) If so requested by a country that is a party to the North American Free Trade
Agreement, the Minister may, by a statement published in the Canada Gazette,
grant the right to remuneration conferred by subsection 19(1.1) to performers or
makers who are nationals of that country and whose sound recordings embody
dramatic or literary works.
Application of section 19
(4) Where a statement is published under subsection (3), section 19 applies
(a) in respect of nationals of a country mentioned in that statement, as if they
were citizens of Canada or, in the case of corporations, had their
headquarters in Canada; and
(b) as if the fixations made for the purpose of their sound recordings had been
made in Canada.
R.S., 1985, c. C-42, s. 20; 1994, c. 47, s. 59; 1997, c. 24, s. 14; 2001, c. 27, s. 238; 2012, c. 20,
s. 15.
Rights of Broadcasters
Copyright in communication signals
21 (1) Subject to subsection (2), a broadcaster has a copyright in the
communication signals that it broadcasts, consisting of the sole right to do the
following in relation to the communication signal or any substantial part thereof:
(a) to fix it,
(b) to reproduce any fixation of it that was made without the broadcaster’s
consent,
(c) to authorize another broadcaster to retransmit it to the public
simultaneously with its broadcast, and
(d) in the case of a television communication signal, to perform it in a place
open to the public on payment of an entrance fee,
and to authorize any act described in paragraph (a), (b) or (d).
Conditions for copyright
(2) Subsection (1) applies only if the broadcaster
(a) at the time of the broadcast, had its headquarters in Canada, in a country
that is a WTO Member or in a Rome Convention country; and
(b) broadcasts the communication signal from that country.
Exception
(3) Notwithstanding subsection (2), if the Minister is of the opinion that a Rome
Convention country or a country that is a WTO Member does not grant the right
mentioned in paragraph (1)(d), the Minister may, by a statement published in the
Canada Gazette, declare that broadcasters that have their headquarters in that
country are not entitled to that right.
R.S., 1985, c. C-42, s. 21; 1994, c. 47, s. 59; 1997, c. 24, s. 14.
Reciprocity
Reciprocity
22 (1) If the Minister is of the opinion that a country other than a Rome
Convention country or a WPPT country grants or has undertaken to grant
(a) to performers and to makers of sound recordings, or
(b) to broadcasters
that are Canadian citizens or permanent residents within the meaning of
subsection 2(1) of the Immigration and Refugee Protection Act or, if corporations,
have their headquarters in Canada, as the case may be, whether by treaty,
convention, agreement or law, benefits substantially equivalent to those conferred
by this Part, the Minister may, by a statement published in the Canada Gazette,
(c) grant the benefits conferred by this Part
(i) to performers and to makers of sound recordings, or
(ii) to broadcasters
as the case may be, that are citizens, subjects or permanent residents of or, if
corporations, have their headquarters in that country, and
(d) declare that that country shall, as regards those benefits, be treated as if it
were a country to which this Part extends.
Reciprocity
(2) If the Minister is of the opinion that a country other than a Rome Convention
country or a WPPT country neither grants nor has undertaken to grant
(a) to performers, and to makers of sound recordings, or
(b) to broadcasters
that are Canadian citizens or permanent residents within the meaning of
subsection 2(1) of the Immigration and Refugee Protection Act or, if corporations,
have their headquarters in Canada, as the case may be, whether by treaty,
convention, agreement or law, benefits substantially equivalent to those conferred
by this Part, the Minister may, by a statement published in the Canada Gazette,
(c) grant the benefits conferred by this Part to performers, makers of sound
recordings or broadcasters that are citizens, subjects or permanent residents
of or, if corporations, have their headquarters in that country, as the case may
be, to the extent that that country grants that those benefits to performers,
makers of sound recordings or broadcasters that are Canadian citizens or
permanent residents within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act or, if corporations, have their headquarters in
Canada, and
(d) declare that that country shall, as regards those benefits, be treated as if it
were a country to which this Part extends.
Application of Act
(3) Any provision of this Act that the Minister specifies in a statement referred to
in subsection (1) or (2)
(a) applies in respect of performers, makers of sound recordings or
broadcasters covered by that statement, as if they were citizens of or, if
corporations, had their headquarters in Canada; and
(b) applies in respect of a country covered by that statement, as if that country
were Canada.
Application of Act
(4) Subject to any exceptions that the Minister may specify in a statement referred
to in subsection (1) or (2), the other provisions of this Act also apply in the way
described in subsection (3).
R.S., 1985, c. C-42, s. 22; 1994, c. 47, s. 59; 1997, c. 24, s. 14; 2001, c. 27, s. 239; 2012, c. 20,
s. 16.
Term of Rights
Term of copyright — performer’s performance
23 (1) Subject to this Act, copyright in a performer’s performance subsists until
the end of 50 years after the end of the calendar year in which the performance
occurs. However,
(a) if the performance is fixed in a sound recording before the copyright
expires, the copyright continues until the end of 50 years after the end of the
calendar year in which the first fixation of the performance in a sound
recording occurs; and
(b) if a sound recording in which the performance is fixed is published before
the copyright expires, the copyright continues until the earlier of the end of 70
years after the end of the calendar year in which the first such publication
occurs and the end of 100 years after the end of the calendar year in which
the first fixation of the performance in a sound recording occurs.
Term of copyright — sound recording
(1.1) Subject to this Act, copyright in a sound recording subsists until the end of
50 years after the end of the calendar year in which the first fixation of the sound
recording occurs. However, if the sound recording is published before the
copyright expires, the copyright continues until the earlier of the end of 70 years
after the end of the calendar year in which the first publication of the sound
recording occurs and the end of 100 years after the end of the calendar year in
which that first fixation occurs.
Term of copyright — communication signal
(1.2) Subject to this Act, copyright in a communication signal subsists until the
end of 50 years after the end of the calendar year in which the communication
signal is broadcast.
Term of right to remuneration
(2) The rights to remuneration conferred on performers and makers by section 19
have the same terms, respectively, as those provided by subsections (1) and
(1.1).
Application of subsections (1) to (2)
(3) Subsections (1) to (2) apply whether the fixation, performance or broadcast
occurred before or after the coming into force of this section.
Berne Convention countries, Rome Convention countries, WTO Members
(4) Where the performer’s performance, sound recording or communication signal
meets the requirements set out in section 15, 18 or 21, as the case may be, a
country that becomes a Berne Convention country, a Rome Convention country
or a WTO Member after the date of the fixation, performance or broadcast is, as
of becoming a Berne Convention country, Rome Convention country or WTO
Member, as the case may be, deemed to have been such at the date of the
fixation, performance or broadcast.
Where term of protection expired
(5) Subsection (4) does not confer any protection in Canada where the term of
protection in the country referred to in that subsection had expired before that
country became a Berne Convention country, Rome Convention country or WTO
Member, as the case may be.
R.S., 1985, c. C-42, s. 23; 1994, c. 47, s. 59; 1997, c. 24, s. 14; 2012, c. 20, s. 17; 2015, c. 36, s.
81.
Ownership of Copyright
Ownership of copyright
24 The first owner of the copyright
(a) in a performer’s performance, is the performer;
(b) in a sound recording, is the maker; or
(c) in a communication signal, is the broadcaster that broadcasts it.
R.S., 1985, c. C-42, s. 24; 1994, c. 47, s. 59; 1997, c. 24, s. 14.
Assignment of rights
25 Subsections 13(4) to (7) apply, with such modifications as the circumstances
require, in respect of the rights conferred by this Part on performers, makers of
sound recordings and broadcasters.
R.S., 1985, c. C-42, s. 25; 1993, c. 44, s. 62; 1994, c. 47, s. 59; 1997, c. 24, s. 14.
Performers’ Rights — WTO Countries
Performer’s performance in WTO country
26 (1) Where a performer’s performance takes place on or after January 1, 1996
in a country that is a WTO Member, the performer has, as of the date of the
performer’s performance, a copyright in the performer’s performance, consisting
of the sole right to do the following in relation to the performer’s performance or
any substantial part thereof:
(a) if it is not fixed, to communicate it to the public by telecommunication and
to fix it in a sound recording, and
(b) if it has been fixed in a sound recording without the performer’s
authorization, to reproduce the fixation or any substantial part thereof,
and to authorize any such acts.
Where country joins WTO after Jan. 1, 1996
(2) Where a performer’s performance takes place on or after January 1, 1996 in a
country that becomes a WTO Member after the date of the performer’s
performance, the performer has the copyright described in subsection (1) as of
the date the country becomes a WTO Member.
Performer’s performances before Jan. 1, 1996
(3) Where a performer’s performance takes place before January 1, 1996 in a
country that is a WTO Member, the performer has, as of January 1, 1996, the
sole right to do and to authorize the act described in paragraph (1)(b).
Where country joins WTO after Jan. 1, 1996
(4) Where a performer’s performance takes place before January 1, 1996 in a
country that becomes a WTO Member on or after January 1, 1996, the performer
has the right described in subsection (3) as of the date the country becomes a
WTO Member.
Term of performer’s rights
(5) The rights conferred by this section subsist for the remainder of the calendar
year in which the performer’s performance takes place and a period of fifty years
following the end of that calendar year.
Assignment of rights
(6) Subsections 13(4) to (7) apply, with such modifications as the circumstances
require, in respect of a performer’s rights conferred by this section.
Limitation
(7) Notwithstanding an assignment of a performer’s right conferred by this
section, the performer, as well as the assignee, may
(a) prevent the reproduction of
(i) any fixation of the performer’s performance, or
(ii) any substantial part of such a fixation,
where the fixation was made without the performer’s consent or the
assignee’s consent; and
(b) prevent the importation of any fixation of the performer’s performance, or
any reproduction of such a fixation, that the importer knows or ought to have
known was made without the performer’s consent or the assignee’s consent.
R.S., 1985, c. C-42, s. 26; R.S., 1985, c. 10 (4th Supp.), s. 17(F); 1993, c. 44, s. 63; 1994, c. 47, s.
59; 1997, c. 24, s. 14.
PART III
Infringement of Copyright and Moral Rights and Exceptions to Infringement
Infringement of Copyright
General
Infringement generally
27 (1) It is an infringement of copyright for any person to do, without the consent
of the owner of the copyright, anything that by this Act only the owner of the
copyright has the right to do.
Secondary infringement
(2) It is an infringement of copyright for any person to
(a) sell or rent out,
(b) distribute to such an extent as to affect prejudicially the owner of the
copyright,
(c) by way of trade distribute, expose or offer for sale or rental, or exhibit in
public,
(d) possess for the purpose of doing anything referred to in paragraphs (a) to
(c), or
(e) import into Canada for the purpose of doing anything referred to in
paragraphs (a) to (c),
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.
Clarification
(2.1) For greater certainty, a copy made outside Canada does not infringe
copyright under subsection (2) if, had it been made in Canada, it would have
been made under a limitation or exception under this Act.
Secondary infringement — exportation
(2.11) It is an infringement of copyright for any person, for the purpose of doing
anything referred to in paragraphs (2)(a) to (c), to export or attempt to export 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 was
made without the consent of the owner of the copyright in the country where the
copy was made.
Exception
(2.12) Subsection (2.11) does not apply with respect to a copy that was made
under a limitation or exception under this Act or, if it was made outside Canada,
that would have been made under such a limitation or exception had it been
made in Canada.
Secondary infringement related to lesson
(2.2) It is an infringement of copyright for any person to do any of the following
acts with respect to anything that the person knows or should have known is a
lesson, as defined in subsection 30.01(1), or a fixation of one:
(a) to sell it or to rent it out;
(b) to distribute it to an extent that the owner of the copyright in the work or
other subject-matter that is included in the lesson is prejudicially affected;
(c) by way of trade, to distribute it, expose or offer it for sale or rental or exhibit
it in public;
(d) to possess it for the purpose of doing anything referred to in any of
paragraphs (a) to (c);
(e) to communicate it by telecommunication to any person other than a person
referred to in paragraph 30.01(3)(a); or
(f) to circumvent or contravene any measure taken in conformity with
paragraph 30.01(6)(b), (c) or (d).
Infringement — provision of services
(2.3) It is an infringement of copyright for a person, by means of the Internet or
another digital network, to provide a service primarily for the purpose of enabling
acts of copyright infringement if an actual infringement of copyright occurs by
means of the Internet or another digital network as a result of the use of that
service.
Factors
(2.4) In determining whether a person has infringed copyright under subsection
(2.3), the court may consider
(a) whether the person expressly or implicitly marketed or promoted the
service as one that could be used to enable acts of copyright infringement;
(b) whether the person had knowledge that the service was used to enable a
significant number of acts of copyright infringement;
(c) whether the service has significant uses other than to enable acts of
copyright infringement;
(d) the person’s ability, as part of providing the service, to limit acts of
copyright infringement, and any action taken by the person to do so;
(e) any benefits the person received as a result of enabling the acts of
copyright infringement; and
(f) the economic viability of the provision of the service if it were not used to
enable acts of copyright infringement.
Knowledge of importer
(3) In determining whether there is an infringement under subsection (2) in the
case of an activity referred to in any of paragraphs (2)(a) to (d) in relation to a
copy that was imported in the circumstances referred to in paragraph (2)(e), it is
irrelevant whether the importer knew or should have known that the importation of
the copy infringed copyright.
Plates
(4) It is an infringement of copyright for any person to make or possess a plate
that has been specifically designed or adapted for the purpose of making
infringing copies of a work or other subject-matter.
Public performance for profit
(5) It is an infringement of copyright for any person, for profit, to permit a theatre
or other place of entertainment to be used for the performance in public of a work
or other subject-matter without the consent of the owner of the copyright unless
that person was not aware, and had no reasonable ground for suspecting, that
the performance would be an infringement of copyright.
R.S., 1985, c. C-42, s. 27; R.S., 1985, c. 1 (3rd Supp.), s. 13, c. 10 (4th Supp.), s. 5; 1993, c. 44, s.
64; 1997, c. 24, s. 15; 2012, c. 20, s. 18; 2014, c. 32, s. 3.
Parallel Importation of Books
Importation of books
27.1 (1) Subject to any regulations made under subsection (6), it is an
infringement of copyright in a book for any person to import the book where
(a) copies of the book were made with the consent of the owner of the
copyright in the book in the country where the copies were made, but were
imported without the consent of the owner of the copyright in the book in
Canada; and
(b) the person knows or should have known that the book would infringe
copyright if it was made in Canada by the importer.
Secondary infringement
(2) Subject to any regulations made under subsection (6), where the
circumstances described in paragraph (1)(a) exist, it is an infringement of
copyright in an imported book for any person who knew or should have known
that the book would infringe copyright if it was made in Canada by the importer to
(a) sell or rent out the book;
(b) by way of trade, distribute, expose or offer for sale or rental, or exhibit in
public, the book; or
(c) possess the book for the purpose of any of the activities referred to in
paragraph (a) or (b).
Limitation
(3) Subsections (1) and (2) only apply where there is an exclusive distributor of
the book and the acts described in those subsections take place in the part of
Canada or in respect of the particular sector of the market for which the person is
the exclusive distributor.
Exclusive distributor
(4) An exclusive distributor is deemed, for the purposes of entitlement to any of
the remedies under Part IV in relation to an infringement under this section, to
derive an interest in the copyright in question by licence.
Notice
(5) No exclusive distributor, copyright owner or exclusive licensee is entitled to a
remedy under Part IV in relation to an infringement under this section unless,
before the infringement occurred, notice has been given within the prescribed
time and in the prescribed manner to the person referred to in subsection (1) or
(2), as the case may be, that there is an exclusive distributor of the book.
Regulations
(6) The Governor in Council may, by regulation, establish terms and conditions
for the importation of certain categories of books, including remaindered books,
books intended solely for re-export and books imported by special order.
1997, c. 24, s. 15.
28 [Repealed, 1997, c. 24, s. 15]
28.01 [Repealed, 1997, c. 24, s. 16]
28.02 and 28.03 [Repealed, 1997, c. 24, s. 17]
Moral Rights Infringement
Infringement generally
28.1 Any act or omission that is contrary to any of the moral rights of the author of
a work or of the performer of a performer’s performance is, in the absence of the
author’s or performer’s consent, an infringement of those rights.
R.S., 1985, c. 10 (4th Supp.), s. 6; 2012, c. 20, s. 19.
Nature of right of integrity
28.2 (1) The author’s or performer’s right to the integrity of a work or performer’s
performance is infringed only if the work or the performance is, to the prejudice of
its author’s or performer’s honour or reputation,
(a) distorted, mutilated or otherwise modified; or
(b) used in association with a product, service, cause or institution.
Where prejudice deemed
(2) In the case of a painting, sculpture or engraving, the prejudice referred to in
subsection (1) shall be deemed to have occurred as a result of any distortion,
mutilation or other modification of the work.
When work not distorted, etc.
(3) For the purposes of this section,
(a) a change in the location of a work, the physical means by which a work is
exposed or the physical structure containing a work, or
(b) steps taken in good faith to restore or preserve the work
shall not, by that act alone, constitute a distortion, mutilation or other modification
of the work.
R.S., 1985, c. 10 (4th Supp.), s. 6; 2012, c. 20, s. 20.
Exceptions
Fair Dealing
Research, private study, etc.
29 Fair dealing for the purpose of research, private study, education, parody or
satire does not infringe copyright.
R.S., 1985, c. C-42, s. 29; R.S., 1985, c. 10 (4th Supp.), s. 7; 1994, c. 47, s. 61; 1997, c. 24, s.
18; 2012, c. 20, s. 21.
Criticism or review
29.1 Fair dealing for the purpose of criticism or review does not infringe copyright
if the following are mentioned:
(a) the source; and
(b) if given in the source, the name of the
(i) author, in the case of a work,
(ii) performer, in the case of a performer’s performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.
1997, c. 24, s. 18.
News reporting
29.2 Fair dealing for the purpose of news reporting does not infringe copyright if
the following are mentioned:
(a) the source; and
(b) if given in the source, the name of the
(i) author, in the case of a work,
(ii) performer, in the case of a performer’s performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.
1997, c. 24, s. 18.
Non-commercial User-generated Content
Non-commercial user-generated content
29.21 (1) It is not an infringement of copyright for an individual to use an existing
work or other subject-matter or copy of one, which has been published or
otherwise made available to the public, in the creation of a new work or other
subject-matter in which copyright subsists and for the individual — or, with the
individual’s authorization, a member of their household — to use the new work or
other subject-matter or to authorize an intermediary to disseminate it, if
(a) the use of, or the authorization to disseminate, the new work or other
subject-matter is done solely for non-commercial purposes;
(b) the source — and, if given in the source, the name of the author,
performer, maker or broadcaster — of the existing work or other subject-
matter or copy of it are mentioned, if it is reasonable in the circumstances to
do so;
(c) the individual had reasonable grounds to believe that the existing work or
other subject-matter or copy of it, as the case may be, was not infringing
copyright; and
(d) the use of, or the authorization to disseminate, the new work or other
subject-matter does not have a substantial adverse effect, financial or
otherwise, on the exploitation or potential exploitation of the existing work or
other subject-matter — or copy of it — or on an existing or potential market for
it, including that the new work or other subject-matter is not a substitute for the
existing one.
Definitions
(2) The following definitions apply in subsection (1).
intermediary means a person or entity who regularly provides space or means
for works or other subject-matter to be enjoyed by the public. (intermédiaire)
use means to do anything that by this Act the owner of the copyright has the sole
right to do, other than the right to authorize anything. (utiliser)
2012, c. 20, s. 22.
Reproduction for Private Purposes
Reproduction for private purposes
29.22 (1) It is not an infringement of copyright for an individual to reproduce a
work or other subject-matter or any substantial part of a work or other subject-
matter if
(a) the copy of the work or other subject-matter from which the reproduction is
made is not an infringing copy;
(b) the individual legally obtained the copy of the work or other subject-matter
from which the reproduction is made, other than by borrowing it or renting it,
and owns or is authorized to use the medium or device on which it is
reproduced;
(c) the individual, in order to make the reproduction, did not circumvent, as
defined in section 41, a technological protection measure, as defined in that
section, or cause one to be circumvented;
(d) the individual does not give the reproduction away; and
(e) the reproduction is used only for the individual’s private purposes.
Meaning of medium or device
(2) For the purposes of paragraph (1)(b), a medium or device includes digital
memory in which a work or subject-matter may be stored for the purpose of
allowing the telecommunication of the work or other subject-matter through the
Internet or other digital network.
Limitation — audio recording medium
(3) In the case of a work or other subject-matter that is a musical work embodied
in a sound recording, a performer’s performance of a musical work embodied in a
sound recording or a sound recording in which a musical work or a performer’s
performance of a musical work is embodied, subsection (1) does not apply if the
reproduction is made onto an audio recording medium as defined in section 79.
Limitation — destruction of reproductions
(4) Subsection (1) does not apply if the individual gives away, rents or sells the
copy of the work or other subject-matter from which the reproduction is made
without first destroying all reproductions of that copy that the individual has made
under that subsection.
2012, c. 20, s. 22.
Fixing Signals and Recording Programs for Later Listening or Viewing
Reproduction for later listening or viewing
29.23 (1) It is not an infringement of copyright for an individual to fix a
communication signal, to reproduce a work or sound recording that is being
broadcast or to fix or reproduce a performer’s performance that is being
broadcast, in order to record a program for the purpose of listening to or viewing it
later, if
(a) the individual receives the program legally;
(b) the individual, in order to record the program, did not circumvent, as
defined in section 41, a technological protection measure, as defined in that
section, or cause one to be circumvented;
(c) the individual makes no more than one recording of the program;
(d) the individual keeps the recording no longer than is reasonably necessary
in order to listen to or view the program at a more convenient time;
(e) the individual does not give the recording away; and
(f) the recording is used only for the individual’s private purposes.
Limitation
(2) Subsection (1) does not apply if the individual receives the work, performer’s
performance or sound recording under an on-demand service.
Definitions
(3) The following definitions apply in this section.
broadcast means any transmission of a work or other subject-matter by
telecommunication for reception by the public, but does not include a
transmission that is made solely for performance in public. (radiodiffusion)
on-demand service means a service that allows a person to receive works,
performer’s performances and sound recordings at times of their choosing.
(service sur demande)
2012, c. 20, s. 22.
Backup Copies
Backup copies
29.24 (1) It is not an infringement of copyright in a work or other subject-matter for
a person who owns — or has a licence to use — a copy of the work or subject-
matter (in this section referred to as the “source copy”) to reproduce the source
copy if
(a) the person does so solely for backup purposes in case the source copy is
lost, damaged or otherwise rendered unusable;
(b) the source copy is not an infringing copy;
(c) the person, in order to make the reproduction, did not circumvent, as
defined in section 41, a technological protection measure, as defined in that
section, or cause one to be circumvented; and
(d) the person does not give any of the reproductions away.
Backup copy becomes source copy
(2) If the source copy is lost, damaged or otherwise rendered unusable, one of
the reproductions made under subsection (1) becomes the source copy.
Destruction
(3) The person shall immediately destroy all reproductions made under
subsection (1) after the person ceases to own, or to have a licence to use, the
source copy.
2012, c. 20, s. 22.
Acts Undertaken without Motive of Gain
Motive of gain
29.3 (1) No action referred to in section 29.4, 29.5, 30.2 or 30.21 may be carried
out with motive of gain.
Cost recovery
(2) An educational institution, library, archive or museum, or person acting under
its authority does not have a motive of gain where it or the person acting under its
authority, does anything referred to in section 29.4, 29.5, 30.2 or 30.21 and
recovers no more than the costs, including overhead costs, associated with doing
that act.
1997, c. 24, s. 18.
Educational Institutions
Reproduction for instruction
29.4 (1) It is not an infringement of copyright for an educational institution or a
person acting under its authority for the purposes of education or training on its
premises to reproduce a work, or do any other necessary act, in order to display
it.
Reproduction for examinations, etc.
(2) It is not an infringement of copyright for an educational institution or a person
acting under its authority to
(a) reproduce, translate or perform in public on the premises of the
educational institution, or
(b) communicate by telecommunication to the public situated on the premises
of the educational institution
a work or other subject-matter as required for a test or examination.
If work commercially available
(3) Except in the case of manual reproduction, the exemption from copyright
infringement provided by subsections (1) and (2) does not apply if the work or
other subject-matter is commercially available, within the meaning of paragraph
(a) of the definition commercially available in section 2, in a medium that is
appropriate for the purposes referred to in those subsections.
1997, c. 24, s. 18; 2012, c. 20, s. 23.
Performances
29.5 It is not an infringement of copyright for an educational institution or a person
acting under its authority to do the following acts if they are done on the premises
of an educational institution for educational or training purposes and not for profit,
before an audience consisting primarily of students of the educational institution,
instructors acting under the authority of the educational institution or any person
who is directly responsible for setting a curriculum for the educational institution:
(a) the live performance in public, primarily by students of the educational
institution, of a work;
(b) the performance in public of a sound recording, or of a work or performer’s
performance that is embodied in a sound recording, as long as the sound
recording is not an infringing copy or the person responsible for the
performance has no reasonable grounds to believe that it is an infringing copy;
(c) the performance in public of a work or other subject-matter at the time of
its communication to the public by telecommunication; and
(d) the performance in public of a cinematographic work, as long as the work
is not an infringing copy or the person responsible for the performance has no
reasonable grounds to believe that it is an infringing copy.
1997, c. 24, s. 18; 2012, c. 20, s. 24.
News and commentary
29.6 (1) It is not an infringement of copyright for an educational institution or a
person acting under its authority to
(a) make, at the time of its communication to the public by telecommunication,
a single copy of a news program or a news commentary program, excluding
documentaries, for the purposes of performing the copy for the students of the
educational institution for educational or training purposes; and
(b) perform the copy in public before an audience consisting primarily of
students of the educational institution on its premises for educational or
training purposes.
(2) [Repealed, 2012, c. 20, s. 25]
1997, c. 24, s. 18; 2012, c. 20, s. 25.
Reproduction of broadcast
29.7 (1) Subject to subsection (2) and section 29.9, it is not an infringement of
copyright for an educational institution or a person acting under its authority to
(a) make a single copy of a work or other subject-matter at the time that it is
communicated to the public by telecommunication; and
(b) keep the copy for up to thirty days to decide whether to perform the copy
for educational or training purposes.
Royalties for reproduction
(2) An educational institution that has not destroyed the copy by the expiration of
the thirty days infringes copyright in the work or other subject-matter unless it
pays any royalties, and complies with any terms and conditions, fixed under this
Act for the making of the copy.
Royalties for performance
(3) It is not an infringement of copyright for the educational institution or a person
acting under its authority to perform the copy in public for educational or training
purposes on the premises of the educational institution before an audience
consisting primarily of students of the educational institution if the educational
institution pays the royalties and complies with any terms and conditions fixed
under this Act for the performance in public.
1997, c. 24, s. 18.
Unlawful reception
29.8 The exceptions to infringement of copyright provided for under sections 29.5
to 29.7 do not apply where the communication to the public by telecommunication
was received by unlawful means.
1997, c. 24, s. 18.
Records and marking
29.9 (1) Where an educational institution or person acting under its authority
(a) [Repealed, 2012, c. 20, s. 26]
(b) makes a copy of a work or other subject-matter communicated to the
public by telecommunication and performs it pursuant to section 29.7,
the educational institution shall keep a record of the information prescribed by
regulation in relation to the making of the copy, the destruction of it or any
performance in public of it for which royalties are payable under this Act and shall,
in addition, mark the copy in the manner prescribed by regulation.
Regulations
(2) The Board may, with the approval of the Governor in Council, make
regulations
(a) prescribing the information in relation to the making, destruction,
performance and marking of copies that must be kept under subsection (1),
(b) prescribing the manner and form in which records referred to in that
subsection must be kept and copies destroyed or marked, and
(c) respecting the sending of information to collective societies that carry on
the business of collecting royalties referred to in subsection 29.7(2) or (3).
1997, c. 24, s. 18; 2012, c. 20, s. 26; 2018, c. 27, s. 282.
Literary collections
30 The publication in a collection, mainly composed of non-copyright matter,
intended for the use of educational institutions, and so described in the title and in
any advertisements issued by the publisher, of short passages from published
literary works in which copyright subsists and not themselves published for the
use of educational institutions, does not infringe copyright in those published
literary works if
(a) not more than two passages from works by the same author are published
by the same publisher within five years;
(b) the source from which the passages are taken is acknowledged; and
(c) the name of the author, if given in the source, is mentioned.
R.S., 1985, c. C-42, s. 30; R.S., 1985, c. 10 (4th Supp.), s. 7; 1997, c. 24, s. 18.
Meaning of lesson
30.01 (1) For the purposes of this section, lesson means a lesson, test or
examination, or part of one, in which, or during the course of which, an act is
done in respect of a work or other subject-matter by an educational institution or a
person acting under its authority that would otherwise be an infringement of
copyright but is permitted under a limitation or exception under this Act.
Application
(2) This section does not apply so as to permit any act referred to in paragraph
(3)(a), (b) or (c) with respect to a work or other subject-matter whose use in the
lesson constitutes an infringement of copyright or for whose use in the lesson the
consent of the copyright owner is required.
Communication by telecommunication
(3) Subject to subsection (6), it is not an infringement of copyright for an
educational institution or a person acting under its authority
(a) to communicate a lesson to the public by telecommunication for
educational or training purposes, if that public consists only of students who
are enrolled in a course of which the lesson forms a part or of other persons
acting under the authority of the educational institution;
(b) to make a fixation of the lesson for the purpose of the act referred to in
paragraph (a); or
(c) to do any other act that is necessary for the purpose of the acts referred to
in paragraphs (a) and (b).
Participation by telecommunication
(4) A student who is enrolled in a course of which the lesson forms a part is
deemed to be a person on the premises of the educational institution when the
student participates in or receives the lesson by means of communication by
telecommunication under paragraph (3)(a).
Reproducing lessons
(5) It is not an infringement of copyright for a student who has received a lesson
by means of communication by telecommunication under paragraph (3)(a) to
reproduce the lesson in order to be able to listen to or view it at a more
convenient time. However, the student shall destroy the reproduction within 30
days after the day on which the students who are enrolled in the course to which
the lesson relates have received their final course evaluations.
Conditions
(6) The educational institution and any person acting under its authority, except a
student, shall
(a) destroy any fixation of the lesson within 30 days after the day on which the
students who are enrolled in the course to which the lesson relates have
received their final course evaluations;
(b) take measures that can reasonably be expected to limit the communication
by telecommunication of the lesson to the persons referred to in paragraph (3)
(a);
(c) take, in relation to the communication by telecommunication of the lesson
in digital form, measures that can reasonably be expected to prevent the
students from fixing, reproducing or communicating the lesson other than as
they may do under this section; and
(d) take, in relation to a communication by telecommunication in digital form,
any measure prescribed by regulation.
2012, c. 20, s. 27.
Exception — digital reproduction of works
30.02 (1) Subject to subsections (3) to (5), it is not an infringement of copyright for
an educational institution that has a reprographic reproduction licence under
which the institution is authorized to make reprographic reproductions of works in
a collective society’s repertoire for an educational or training purpose
(a) to make a digital reproduction — of the same general nature and extent as
the reprographic reproduction authorized under the licence — of a paper form
of any of those works;
(b) to communicate the digital reproduction by telecommunication for an
educational or training purpose to persons acting under the authority of the
institution; or
(c) to do any other act that is necessary for the purpose of the acts referred to
in paragraphs (a) and (b).
Exception
(2) Subject to subsections (3) to (5), it is not an infringement of copyright for a
person acting under the authority of the educational institution to whom the work
has been communicated under paragraph (1)(b) to print one copy of the work.
Conditions
(3) An educational institution that makes a digital reproduction of a work under
paragraph (1)(a) shall
(a) pay to the collective society, with respect to all the persons to whom the
digital reproduction is communicated by the institution under paragraph (1)(b),
the royalties that would be payable if one reprographic reproduction were
distributed by the institution to each of those persons, and comply with the
licence terms and conditions applicable to a reprographic reproduction to the
extent that they are reasonably applicable to a digital reproduction;
(b) take measures to prevent the digital reproduction from being
communicated by telecommunication to any persons who are not acting under
the authority of the institution;
(c) take measures to prevent a person to whom the work has been
communicated under paragraph (1)(b) from printing more than one copy, and
to prevent any other reproduction or communication of the digital reproduction;
and
(d) take any measure prescribed by regulation.
Restriction
(4) An educational institution may not make a digital reproduction of a work under
paragraph (1)(a) if
(a) the institution has entered into a digital reproduction agreement respecting
the work with a collective society under which the institution may make a
digital reproduction of the work, may communicate the digital reproduction by
telecommunication to persons acting under the authority of the institution and
may permit those persons to print at least one copy of the work;
(b) there is a tariff approved under section 70 that is applicable to the digital
reproduction of the work, to the communication of the digital reproduction by
telecommunication to persons acting under the authority of the institution and
to the printing by those persons of at least one copy of the work; or
(c) the institution has been informed by the collective society that is authorized
to enter into reprographic agreements with respect to the work that the owner
of the copyright in the work has informed it, under subsection (5), that the
owner refuses to authorize the collective society to enter into a digital
reproduction agreement with respect to the work.
Restriction
(5) If the owner of the copyright in a work informs the collective society that is
authorized to enter into reprographic agreements with respect to the work that the
owner refuses to authorize it to enter into digital reproduction agreements with
respect to the work, the collective society shall inform the educational institutions
with which it has entered into reprographic reproduction agreements with respect
to the work that they are not permitted to make digital reproductions under
subsection (1).
Deeming provision
(6) The owner of the copyright in a work who, in respect of the work, has
authorized a collective society to enter into a reprographic reproduction
agreement with an educational institution is deemed to have authorized the
society to enter into a digital reproduction agreement with the institution —
subject to the same restrictions as a reprographic reproduction agreement —
unless the owner has refused to give this authorization under subsection (5) or
has authorized another collective society to enter into a digital reproduction
agreement with respect to the work.
Maximum amount that may be recovered
(7) In proceedings against an educational institution for making a digital
reproduction of a paper form of a work, or for communicating such a reproduction
by telecommunication for an educational or training purpose to persons acting
under the authority of the institution, the owner of the copyright in the work may
not recover an amount more than
(a) in the case where there is a digital reproduction licence that meets the
conditions described in paragraph (4)(a) in respect of the work — or, if none
exists in respect of the work, in respect of a work of the same category — the
amount of royalties that would be payable under that licence in respect of
those acts or, if there is more than one applicable licence, the greatest amount
of royalties payable under any of those licences; and
(b) in the case where there is no licence described in paragraph (a) but there
is a reprographic reproduction licence in respect of the work — or, if none
exists in respect of the work, in respect of a work of the same category — the
amount of royalties that would be payable under that licence in respect of
those acts or, if there is more than one applicable licence, the greatest amount
of royalties payable under any of those licences.
No damages
(8) The owner of the copyright in a work may not recover any damages against a
person acting under the authority of the educational institution who, in respect of
a digital reproduction of the work that is communicated to the person by
telecommunication, prints one copy of the work if, at the time of the printing, it
was reasonable for the person to believe that the communication was made in
accordance with paragraph (1)(b).
2012, c. 20, s. 27; 2018, c. 27, s. 283.
Royalties — digital reproduction agreement
30.03 (1) If an educational institution has paid royalties to a collective society for
the digital reproduction of a work under paragraph 30.02(3)(a) and afterwards the
institution enters into a digital reproduction agreement described in paragraph
30.02(4)(a) with any collective society,
(a) in the case where the institution would — under that digital reproduction
agreement — pay a greater amount of royalties for the digital reproduction of
that work than what was payable under paragraph 30.02(3)(a), the institution
shall pay to the collective society to which it paid royalties under that
paragraph the difference between
(i) the amount of royalties that the institution would have had to pay for the
digital reproduction of that work if the agreement had been entered into on
the day on which the institution first made a digital reproduction under
paragraph 30.02(1)(a), and
(ii) the amount of royalties that the institution paid to the society under
paragraph 30.02(3)(a) for the digital reproduction of that work from the day
on which that paragraph comes into force until the day on which they enter
into the digital reproduction agreement; and
(b) in the case where the institution would — under that digital reproduction
agreement — pay a lesser amount of royalties for the digital reproduction of
that work than what was payable under paragraph 30.02(3)(a), the collective
society to which the institution paid royalties under that paragraph shall pay to
the institution the difference between
(i) the amount of royalties that the institution paid to the society under
paragraph 30.02(3)(a) for the digital reproduction of that work from the day
on which that paragraph comes into force until the day on which they enter
into the digital reproduction agreement, and
(ii) the amount of royalties that the institution would have had to pay for the
digital reproduction of that work if the agreement had been entered into on
the day on which the institution first made a digital reproduction under
paragraph 30.02(1)(a).
Royalties — tariff
(2) If an educational institution has paid royalties to a collective society for the
digital reproduction of a work under paragraph 30.02(3)(a) and afterwards a tariff
applies to the digital reproduction of that work under paragraph 30.02(4)(b),
(a) in the case where the institution would — under the tariff — pay a greater
amount of royalties for the digital reproduction of that work than what was
payable under paragraph 30.02(3)(a), the institution shall pay to the collective
society to which it paid royalties under that paragraph the difference between
(i) the amount of royalties that the institution would have had to pay for the
digital reproduction of that work if the tariff had been approved on the day
on which the institution first made a digital reproduction under paragraph
30.02(1)(a), and
(ii) the amount of royalties that the institution paid to the society under
paragraph 30.02(3)(a) for the digital reproduction of that work from the day
on which that paragraph comes into force until the day on which the tariff is
approved; and
(b) in the case where the institution would — under the tariff — pay a lesser
amount of royalties for the digital reproduction of that work than what was
payable under paragraph 30.02(3)(a), the collective society to which the
institution paid royalties under that paragraph shall pay to the institution the
difference between
(i) the amount of royalties that the institution paid to the society under
paragraph 30.02(3)(a) for the digital reproduction of that work from the day
on which that paragraph comes into force until the day on which the tariff is
approved, and
(ii) the amount of royalties that the institution would have had to pay for the
digital reproduction of that work if the tariff had been approved on the day
on which the institution first made a digital reproduction under paragraph
30.02(1)(a).
2012, c. 20, s. 27; 2018, c. 27, s. 284(E).
Work available through Internet
30.04 (1) Subject to subsections (2) to (5), it is not an infringement of copyright for
an educational institution, or a person acting under the authority of one, to do any
of the following acts for educational or training purposes in respect of a work or
other subject-matter that is available through the Internet:
(a) reproduce it;
(b) communicate it to the public by telecommunication, if that public primarily
consists of students of the educational institution or other persons acting
under its authority;
(c) perform it in public, if that public primarily consists of students of the
educational institution or other persons acting under its authority; or
(d) do any other act that is necessary for the purpose of the acts referred to in
paragraphs (a) to (c).
Conditions
(2) Subsection (1) does not apply unless the educational institution or person
acting under its authority, in doing any of the acts described in that subsection in
respect of the work or other subject-matter, mentions the following:
(a) the source; and
(b) if given in the source, the name of
(i) the author, in the case of a work,
(ii) the performer, in the case of a performer’s performance,
(iii) the maker, in the case of a sound recording, and
(iv) the broadcaster, in the case of a communication signal.
Non-application
(3) Subsection (1) does not apply if the work or other subject-matter — or the
Internet site where it is posted — is protected by a technological protection
measure that restricts access to the work or other subject-matter or to the Internet
site.
Non-application
(4) Subsection (1) does not permit a person to do any act described in that
subsection in respect of a work or other subject-matter if
(a) that work or other subject-matter — or the Internet site where it is posted
— is protected by a technological protection measure that restricts the doing
of that act; or
(b) a clearly visible notice — and not merely the copyright symbol —
prohibiting that act is posted at the Internet site where the work or other
subject-matter is posted or on the work or other subject-matter itself.
Non-application
(5) Subsection (1) does not apply if the educational institution or person acting
under its authority knows or should have known that the work or other subject-
matter was made available through the Internet without the consent of the
copyright owner.
Regulations
(6) The Governor in Council may make regulations for the purposes of paragraph
(4)(b) prescribing what constitutes a clearly visible notice.
2012, c. 20, s. 27.
Libraries, Archives and Museums
Management and maintenance of collection
30.1 (1) It is not an infringement of copyright for a library, archive or museum or a
person acting under the authority of a library, archive or museum to make, for the
maintenance or management of its permanent collection or the permanent
collection of another library, archive or museum, a copy of a work or other
subject-matter, whether published or unpublished, in its permanent collection
(a) if the original is rare or unpublished and is
(i) deteriorating, damaged or lost, or
(ii) at risk of deterioration or becoming damaged or lost;
(b) for the purposes of on-site consultation if the original cannot be viewed,
handled or listened to because of its condition or because of the atmospheric
conditions in which it must be kept;
(c) in an alternative format if the library, archive or museum or a person acting
under the authority of the library, archive or museum considers that the
original is currently in a format that is obsolete or is becoming obsolete, or that
the technology required to use the original is unavailable or is becoming
unavailable;
(d) for the purposes of internal record-keeping and cataloguing;
(e) for insurance purposes or police investigations; or
(f) if necessary for restoration.
Limitation
(2) Paragraphs (1)(a) to (c) do not apply where an appropriate copy is
commercially available in a medium and of a quality that is appropriate for the
purposes of subsection (1).
Destruction of intermediate copies
(3) If a person must make an intermediate copy in order to make a copy under
subsection (1), the person must destroy the intermediate copy as soon as it is no
longer needed.
Regulations
(4) The Governor in Council may make regulations with respect to the procedure
for making copies under subsection (1).
1997, c. 24, s. 18; 1999, c. 31, s. 59(E); 2012, c. 20, s. 28.
Research or private study
30.2 (1) It is not an infringement of copyright for a library, archive or museum or a
person acting under its authority to do anything on behalf of any person that the
person may do personally under section 29 or 29.1.
Copies of articles for research, etc.
(2) It is not an infringement of copyright for a library, archive or museum or a
person acting under the authority of a library, archive or museum to make, by
reprographic reproduction, for any person requesting to use the copy for research
or private study, a copy of a work that is, or that is contained in, an article
published in
(a) a scholarly, scientific or technical periodical; or
(b) a newspaper or periodical, other than a scholarly, scientific or technical
periodical, if the newspaper or periodical was published more than one year
before the copy is made.
Restriction
(3) Paragraph (2)(b) does not apply in respect of a work of fiction or poetry or a
dramatic or musical work.
Conditions
(4) A library, archive or museum may provide the person for whom the copy is
made under subsection (2) with the copy only on the condition that
(a) the person is provided with a single copy of the work; and
(b) the library, archive or museum informs the person that the copy is to be
used solely for research or private study and that any use of the copy for a
purpose other than research or private study may require the authorization of
the copyright owner of the work in question.
Patrons of other libraries, etc.
(5) Subject to subsection (5.02), a library, archive or museum, or a person acting
under the authority of one, may do, on behalf of a patron of another library,
archive or museum, anything under subsection (1) or (2) that it is authorized by
this section to do on behalf of one of its own patrons.
Deeming
(5.01) For the purpose of subsection (5), the making of a copy of a work other
than by reprographic reproduction is deemed to be a making of a copy of the
work that may be done under subsection (2).
Limitation regarding copies in digital form
(5.02) A library, archive or museum, or a person acting under the authority of one,
may, under subsection (5), provide a copy in digital form to a person who has
requested it through another library, archive or museum if the providing library,
archive or museum or person takes measures to prevent the person who has
requested it from
(a) making any reproduction of the digital copy, including any paper copies,
other than printing one copy of it;
(b) communicating the digital copy to any other person; and
(c) using the digital copy for more than five business days from the day on
which the person first uses it.
Destruction of intermediate copies
(5.1) Where an intermediate copy is made in order to copy a work referred to in
subsection (5), once the copy is given to the patron, the intermediate copy must
be destroyed.
Regulations
(6) The Governor in Council may, for the purposes of this section, make
regulations
(a) defining “newspaper” and “periodical”;
(b) defining scholarly, scientific and technical periodicals;
(c) prescribing the information to be recorded about any action taken under
subsection (1) or (5) and the manner and form in which the information is to
be kept; and
(d) prescribing the manner and form in which the conditions set out in
subsection (4) are to be met.
1997, c. 24, s. 18; 2012, c. 20, s. 29.
Copying works deposited in archive
30.21 (1) Subject to subsections (3) and (3.1), it is not an infringement of
copyright for an archive to make, for any person requesting to use the copy for
research or private study, a copy of an unpublished work that is deposited in the
archive and provide the person with it.
Notice
(2) When a person deposits a work in an archive, the archive must give the
person notice that it may copy the work in accordance with this section.
Conditions for copying of works
(3) The archive may copy the work only on the condition that
(a) the person who deposited the work, if a copyright owner, did not, at the
time the work was deposited, prohibit its copying; and
(b) copying has not been prohibited by any other owner of copyright in the
work.
Condition for providing copy
(3.1) The archive may provide the person for whom a copy is made under
subsection (1) with the copy only on the condition that
(a) the person is provided with a single copy of the work; and
(b) the archive informs the person that the copy is to be used solely for
research or private study and that any use of the copy for a purpose other
than research or private study may require the authorization of the copyright
owner of the work in question.
Regulations
(4) The Governor in Council may prescribe by regulation the manner and form in
which the conditions set out in subsections (3) and (3.1) may be met.
(5) to (7) [Repealed, 2004, c. 11, s. 21]
1997, c. 24, s. 18; 1999, c. 31, s. 60(E); 2004, c. 11, s. 21; 2012, c. 20, s. 30.
Machines Installed in Educational Institutions, Libraries, Archives and Museums
No infringement by educational institution, etc.
30.3 (1) An educational institution or a library, archive or museum does not
infringe copyright where
(a) a copy of a work is made using a machine for the making, by reprographic
reproduction, of copies of works in printed form;
(b) the machine is installed by or with the approval of the educational
institution, library, archive or museum on its premises for use by students,
instructors or staff at the educational institution or by persons using the library,
archive or museum; and
(c) there is affixed in the prescribed manner and location a notice warning of
infringement of copyright.
Application
(2) Subsection (1) only applies if, in respect of a reprographic reproduction,
(a) the educational institution, library, archive or museum has entered into an
agreement with a collective society that is authorized by copyright owners to
grant licences on their behalf;
(b) the Board has, in accordance with subsection 71(2), fixed the royalty rates
and related terms and conditions;
(c) a tariff has been approved in accordance with section 70; or
(d) a collective society has filed a proposed tariff in accordance with section
68.
Order
(3) Where a collective society offers to negotiate or has begun to negotiate an
agreement referred to in paragraph (2)(a), the Board may, at the request of either
party, order that the educational institution, library, archive or museum be treated
as an institution to which subsection (1) applies, during the period specified in the
order.
Agreement with copyright owner
(4) Where an educational institution, library, archive or museum has entered into
an agreement with a copyright owner other than a collective society respecting
reprographic reproduction, subsection (1) applies only in respect of the works of
the copyright owner that are covered by the agreement.
Regulations
(5) The Governor in Council may, for the purposes of paragraph 1(c), prescribe
by regulation the manner of affixing and location of notices and the dimensions,
form and contents of notices.
1997, c. 24, s. 18; 2018, c. 27, s. 285.
Libraries, Archives and Museums in Educational Institutions
Application to libraries, etc. within educational institutions
30.4 For greater certainty, the exceptions to infringement of copyright provided for
under sections 29.4 to 30.3 and 45 also apply in respect of a library, archive or
museum that forms part of an educational institution.
1997, c. 24, s. 18.
Library and Archives of Canada
Permitted acts
30.5 It is not an infringement of copyright for the Librarian and Archivist of
Canada under the Library and Archives of Canada Act, to
(a) make a copy of a work or other subject-matter in taking a representative
sample for the purpose of preservation under subsection 8(2) of that Act;
(b) effect the fixation of a copy of a publication, as defined in section 2 of that
Act, that is provided by telecommunication in accordance with subsection 10
(1) of that Act;
(c) make a copy of a recording, as defined in subsection 11(2) of that Act, for
the purposes of section 11 of that Act; or
(d) at the time that a broadcasting undertaking, as defined in subsection 2(1)
of the Broadcasting Act, communicates a work or other subject-matter to the
public by telecommunication, make a copy of the work or other subject-matter
that is included in that communication.
1997, c. 24, s. 18; 2004, c. 11, s. 25.
Computer Programs
Permitted acts
30.6 It is not an infringement of copyright in a computer program for a person who
owns a copy of the computer program that is authorized by the owner of the
copyright, or has a licence to use a copy of the computer program, to
(a) reproduce the copy by adapting, modifying or converting it, or translating it
into another computer language, if the person proves that the reproduced
copy
(i) is essential for the compatibility of the computer program with a
particular computer,
(ii) is solely for the person’s own use, and
(iii) was destroyed immediately after the person ceased to be the owner of
the copy of the computer program or to have a licence to use it; or
(b) reproduce for backup purposes the copy or a reproduced copy referred to
in paragraph (a) if the person proves that the reproduction for backup
purposes was destroyed immediately after the person ceased to be the owner
of the copy of the computer program or to have a licence to use it.
1997, c. 24, s. 18; 2012, c. 20, s. 31.
Interoperability of computer programs
30.61 (1) It is not an infringement of copyright in a computer program for a person
who owns a copy of the computer program that is authorized by the owner of the
copyright, or has a licence to use a copy of the computer program, to reproduce
the copy if
(a) they reproduce the copy for the sole purpose of obtaining information that
would allow the person to make the program and another computer program
interoperable; and
(b) they do not use or disclose that information, except as necessary to make
the program and another computer program interoperable or to assess that
interoperability.
No limitation
(2) In the case where that information is used or disclosed as necessary to make
another computer program interoperable with the program, subsection (1) applies
even if the other computer program incorporates the information and is then sold,
rented or otherwise distributed.
2012, c. 20, s. 31.
Encryption Research
Encryption research
30.62 (1) Subject to subsections (2) and (3), it is not an infringement of copyright
for a person to reproduce a work or other subject-matter for the purposes of
encryption research if
(a) it would not be practical to carry out the research without making the copy;
(b) the person has lawfully obtained the work or other subject-matter; and
(c) the person has informed the owner of the copyright in the work or other
subject-matter.
Limitation
(2) Subsection (1) does not apply if the person uses or discloses information
obtained through the research to commit an act that is an offence under the
Criminal Code.
Limitation — computer program
(3) Subsection (1) applies with respect to a computer program only if, in the event
that the research reveals a vulnerability or a security flaw in the program and the
person intends to make the vulnerability or security flaw public, the person gives
adequate notice of the vulnerability or security flaw and of their intention to the
owner of copyright in the program. However, the person need not give that
adequate notice if, in the circumstances, the public interest in having the
vulnerability or security flaw made public without adequate notice outweighs the
owner’s interest in receiving that notice.
2012, c. 20, s. 31.
Security
Security
30.63 (1) Subject to subsections (2) and (3), it is not an infringement of copyright
for a person to reproduce a work or other subject-matter for the sole purpose,
with the consent of the owner or administrator of a computer, computer system or
computer network, of assessing the vulnerability of the computer, system or
network or of correcting any security flaws.
Limitation
(2) Subsection (1) does not apply if the person uses or discloses information
obtained through the assessment or correction to commit an act that is an offence
under the Criminal Code.
Limitation — computer program
(3) Subsection (1) applies with respect to a computer program only if, in the event
that the assessment or correction reveals a vulnerability or a security flaw in the
program and the person intends to make the vulnerability or security flaw public,
the person gives adequate notice of the vulnerability or security flaw and of their
intention to the owner of copyright in the program. However, the person need not
give that adequate notice if, in the circumstances, the public interest in having the
vulnerability or security flaw made public without adequate notice outweighs the
owner’s interest in receiving that notice.
2012, c. 20, s. 31.
Incidental Inclusion
Incidental use
30.7 It is not an infringement of copyright to incidentally and not deliberately
(a) include a work or other subject-matter in another work or other subject-
matter; or
(b) do any act in relation to a work or other subject-matter that is incidentally
and not deliberately included in another work or other subject-matter.
1997, c. 24, s. 18.
Temporary Reproductions for Technological Processes
Temporary reproductions
30.71 It is not an infringement of copyright to make a reproduction of a work or
other subject-matter if
(a) the reproduction forms an essential part of a technological process;
(b) the reproduction’s only purpose is to facilitate a use that is not an
infringement of copyright; and
(c) the reproduction exists only for the duration of the technological process.
2012, c. 20, s. 32.
Ephemeral Recordings
Ephemeral recordings
30.8 (1) It is not an infringement of copyright for a programming undertaking to fix
or reproduce in accordance with this section a performer’s performance or work,
other than a cinematographic work, that is performed live or a sound recording
that is performed at the same time as the performer’s performance or work, if the
undertaking
(a) is authorized to communicate the performer’s performance, work or sound
recording to the public by telecommunication;
(b) makes the fixation or the reproduction itself, for its own broadcasts;
(c) does not synchronize the fixation or reproduction with all or part of another
recording, performer’s performance or work; and
(d) does not cause the fixation or reproduction to be used in an advertisement
intended to sell or promote, as the case may be, a product, service, cause or
institution.
Record keeping
(2) The programming undertaking must record the dates of the making and
destruction of all fixations and reproductions and any other prescribed information
about the fixation or reproduction, and keep the record current.
Right of access by copyright owners
(3) The programming undertaking must make the record referred to in subsection
(2) available to owners of copyright in the works, sound recordings or performer’s
performances, or their representatives, within twenty-four hours after receiving a
request.
Destruction
(4) The programming undertaking must destroy the fixation or reproduction within
thirty days after making it, unless
(a) the copyright owner authorizes its retention; or
(b) it is deposited in an archive, in accordance with subsection (6).
Royalties
(5) Where the copyright owner authorizes the fixation or reproduction to be
retained after the thirty days, the programming undertaking must pay any
applicable royalty.
Archive
(6) Where the programming undertaking considers a fixation or reproduction to be
of an exceptional documentary character, the undertaking may, with the consent
of an official archive, deposit it in the official archive and must notify the copyright
owner, within thirty days, of the deposit of the fixation or reproduction.
Definition of official archive
(7) In subsection (6), official archive means the Library and Archives of Canada
or any archive established under the law of a province for the preservation of the
official archives of the province.
Application
(8) This section does not apply where a licence is available from a collective
society to make the fixation or reproduction of the performer’s performance, work
or sound recording.
Telecommunications by networks
(9) A broadcasting undertaking, as defined in the Broadcasting Act, may make a
single reproduction of a fixation or reproduction made by a programming
undertaking and communicate it to the public by telecommunication, within the
period referred to in subsection (4), if the broadcasting undertaking meets the
conditions set out in subsection (1) and is part of a prescribed network that
includes the programming undertaking.
Limitations
(10) The reproduction and communication to the public by telecommunication
must be made
(a) in accordance with subsections (2) to (6); and
(b) within thirty days after the day on which the programming undertaking
made the fixation or reproduction.
Definition of programming undertaking
(11) In this section, programming undertaking means
(a) a programming undertaking as defined in subsection 2(1) of the
Broadcasting Act;
(b) a programming undertaking described in paragraph (a) that originates
programs within a network, as defined in subsection 2(1) of the Broadcasting
Act; or
(c) a distribution undertaking as defined in subsection 2(1) of the Broadcasting
Act, in respect of the programs that it originates.
The undertaking must hold a broadcasting licence issued by the Canadian Radio-
television and Telecommunications Commission under the Broadcasting Act, or
be exempted from this requirement by the Canadian Radio-television and
Telecommunications Commission.
1997, c. 24, s. 18; 2004, c. 11, s. 26; 2012, c. 20, s. 33.
Ephemeral recordings — broadcasting undertaking
30.9 (1) It is not an infringement of copyright for a broadcasting undertaking to
reproduce in accordance with this section a sound recording, or a performer’s
performance or work that is embodied in a sound recording, solely for the
purpose of their broadcasting, if the undertaking
(a) owns the copy of the sound recording, performer’s performance or work
and that copy is authorized by the owner of the copyright, or has a licence to
use the copy;
(b) is authorized to communicate the sound recording, performer’s
performance or work to the public by telecommunication;
(c) makes the reproduction itself, for its own broadcasts;
(d) does not synchronize the reproduction with all or part of another recording,
performer’s performance or work; and
(e) does not cause the reproduction to be used in an advertisement intended
to sell or promote, as the case may be, a product, service, cause or institution.
Record keeping
(2) The broadcasting undertaking must record the dates of the making and
destruction of all reproductions and any other prescribed information about the
reproduction, and keep the record current.
Right of access by copyright owners
(3) The broadcasting undertaking must make the record referred to in subsection
(2) available to owners of copyright in the sound recordings, performer’s
performances or works, or their representatives, within twenty-four hours after
receiving a request.
Destruction
(4) The broadcasting undertaking must destroy the reproduction when it no longer
possesses the sound recording, or performer’s performance or work embodied in
the sound recording, or its licence to use the sound recording, performer’s
performance or work expires, or at the latest within 30 days after making the
reproduction, unless the copyright owner authorizes the reproduction to be
retained.
Royalty
(5) If the copyright owner authorizes the reproduction to be retained, the
broadcasting undertaking must pay any applicable royalty.
(6) [Repealed, 2012, c. 20, s. 34]
Definition of broadcasting undertaking
(7) In this section, broadcasting undertaking means a broadcasting undertaking
as defined in subsection 2(1) of the Broadcasting Act that holds a broadcasting
licence issued by the Canadian Radio-television and Telecommunications
Commission under that Act.
1997, c. 24, s. 18; 2012, c. 20, s. 34.
Retransmission
Interpretation
31 (1) In this section,
new media retransmitter means a person whose retransmission is lawful under
the Broadcasting Act only by reason of the Exemption Order for New Media
Broadcasting Undertakings issued by the Canadian Radio-television and
Telecommunications Commission as Appendix A to Public Notice CRTC 1999-
197, as amended from time to time; (retransmetteur de nouveaux médias)
retransmitter means a person who performs a function comparable to that of a
cable retransmission system, but does not include a new media retransmitter;
(retransmetteur)
signal means a signal that carries a literary, dramatic, musical or artistic work
and is transmitted for free reception by the public by a terrestrial radio or
terrestrial television station. (signal)
Retransmission of local and distant signals
(2) It is not an infringement of copyright for a retransmitter to communicate to the
public by telecommunication any literary, dramatic, musical or artistic work if
(a) the communication is a retransmission of a local or distant signal;
(b) the retransmission is lawful under the Broadcasting Act;
(c) the signal is retransmitted simultaneously and without alteration, except as
otherwise required or permitted by or under the laws of Canada;
(d) in the case of the retransmission of a distant signal, the retransmitter has
paid any royalties, and complied with any terms and conditions, fixed under
this Act; and
(e) the retransmitter complies with the applicable conditions, if any, referred to
in paragraph (3)(b).
Regulations
(3) The Governor in Council may make regulations
(a) defining “local signal” and “distant signal” for the purposes of subsection
(2); and
(b) prescribing conditions for the purposes of paragraph (2)(e), and specifying
whether any such condition applies to all retransmitters or only to a class of
retransmitter.
R.S., 1985, c. C-42, s. 31; R.S., 1985, c. 10 (4th Supp.), s. 7; 1988, c. 65, s. 63; 1997, c. 24, ss.
16, 52(F); 2002, c. 26, s. 2.
Network Services
Network services
31.1 (1) A person who, in providing services related to the operation of the
Internet or another digital network, provides any means for the telecommunication
or the reproduction of a work or other subject-matter through the Internet or that
other network does not, solely by reason of providing those means, infringe
copyright in that work or other subject-matter.
Incidental acts
(2) Subject to subsection (3), a person referred to in subsection (1) who caches
the work or other subject-matter, or does any similar act in relation to it, to make
the telecommunication more efficient does not, by virtue of that act alone, infringe
copyright in the work or other subject-matter.
Conditions for application
(3) Subsection (2) does not apply unless the person, in respect of the work or
other subject-matter,
(a) does not modify it, other than for technical reasons;
(b) ensures that any directions related to its caching or the doing of any similar
act, as the case may be, that are specified in a manner consistent with
industry practice by whoever made it available for telecommunication through
the Internet or another digital network, and that lend themselves to automated
reading and execution, are read and executed; and
(c) 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.
Hosting
(4) Subject to subsection (5), a person who, for the purpose of allowing the
telecommunication of a work or other subject-matter through the Internet or
another digital network, provides digital memory in which another person stores
the work or other subject-matter does not, by virtue of that act alone, infringe
copyright in the work or other subject-matter.
Condition for application
(5) Subsection (4) does not apply in respect of a work or other subject-matter if
the person providing the digital memory knows of a decision of a court of
competent jurisdiction to the effect that the person who has stored the work or
other subject-matter in the digital memory infringes copyright by making the copy
of the work or other subject-matter that is stored or by the way in which he or she
uses the work or other subject-matter.
Exception
(6) Subsections (1), (2) and (4) do not apply in relation to an act that constitutes
an infringement of copyright under subsection 27(2.3).
2012, c. 20, s. 35.
Persons with Perceptual Disabilities
Reproduction in alternate format
32 (1) It is not an infringement of copyright for a person with a perceptual
disability, for a person acting at the request of such a person or for a non-profit
organization acting for the benefit of such a person to
(a) reproduce a literary, musical, artistic or dramatic work, other than a
cinematographic work, in a format specially designed for persons with a
perceptual disability;
(a.1) fix a performer’s performance of a literary, musical, artistic or dramatic
work, other than a cinematographic work, in a format specially designed for
persons with a perceptual disability;
(a.2) reproduce a sound recording, or a fixation of a performer’s performance
referred to in paragraph (a.1), in a format specially designed for persons with
a perceptual disability;
(b) translate, adapt or reproduce in sign language a literary or dramatic work,
other than a cinematographic work, in a format specially designed for persons
with a perceptual disability;
(b.1) provide a person with a perceptual disability with, or provide such a
person with access to, a work or other subject-matter to which any of
paragraphs (a) to (b) applies, in a format specially designed for persons with a
perceptual disability, and do any other act that is necessary for that purpose;
or
(c) perform in public a literary or dramatic work, other than a cinematographic
work, in sign language, either live or in a format specially designed for persons
with a perceptual disability.
Limitation
(2) Subsection (1) does not apply if the work or other subject-matter is
commercially available, within the meaning of paragraph (a) of the definition
commercially available in section 2, in a format specially designed to meet the
needs of the person with a perceptual disability referred to in that subsection.
(3) [Repealed, 2016, c. 4, s. 1]
R.S., 1985, c. C-42, s. 32; R.S., 1985, c. 10 (4th Supp.), s. 7; 1997, c. 24, s. 19; 2012, c. 20, s.
36; 2016, c. 4, s. 1.
Print disability — outside Canada
32.01 (1) Subject to this section, it is not an infringement of copyright for a non-
profit organization acting for the benefit of persons with a print disability to do any
of the following:
(a) for the purpose of doing any of the acts set out in paragraph (b),
(i) reproduce a literary, musical, artistic or dramatic work, other than a
cinematographic work, in a format specially designed for persons with a
print disability,
(ii) fix a performer’s performance of a literary, musical, artistic or dramatic
work, other than a cinematographic work, in a format specially designed for
persons with a print disability, or
(iii) reproduce a sound recording, or a fixation of a performer’s
performance referred to in subparagraph (ii), in a format specially designed
for persons with a print disability;
(b) provide either of the following with, or provide either of the following with
access to, a work or other subject-matter to which any of subparagraphs (a)(i)
to (iii) applies, in a format specially designed for persons with a print disability,
and do any other act that is necessary for that purpose:
(i) a non-profit organization, in a country other than Canada, acting for the
benefit of persons with a print disability in that country, or
(ii) a person with a print disability, in a country other than Canada, who has
made a request to be provided with, or provided with access to, the work
or other subject-matter through a non-profit organization acting for the
benefit of persons with a print disability in that country.
Available in other country
(2) Paragraph (1)(b) does not apply if the work or other subject-matter, in the
format specially designed for persons with a print disability, is available in the
other country within a reasonable time and for a reasonable price and may be
located in that country with reasonable effort.
Marrakesh Treaty country
(3) An injunction is the only remedy that the owner of the copyright in the work or
other subject-matter has against a non-profit organization relying on the exception
set out in paragraph (1)(b) if
(a) the other country referred to in that paragraph is a Marrakesh Treaty
country; and
(b) the non-profit organization infringes copyright by reason only that the work
or other subject-matter, in the format described in subsection (2), is available,
and may be located, as described in that subsection.
The owner of the copyright bears the burden of demonstrating that the work or
other subject-matter, in the format described in subsection (2), is available, and
may be located, as described in that subsection.
Not Marrakesh Treaty country
(3.1) An injunction is the only remedy that the owner of the copyright in the work
or other subject-matter has against a non-profit organization relying on the
exception set out in paragraph (1)(b) if
(a) the other country referred to in that paragraph is not a Marrakesh Treaty
country;
(b) the non-profit organization infringes copyright by reason only that the work
or other subject-matter, in the format described in subsection (2), is available,
and may be located, as described in that subsection; and
(c) the non-profit organization demonstrates that it had reasonable grounds to
believe that the work or other subject-matter, in the format described in
subsection (2), was not available, and could not be located, as described in
that subsection.
Royalty
(4) A non-profit organization relying on the exception set out in subsection (1)
shall pay, in accordance with the regulations, any royalty established under the
regulations to the copyright owner.
If copyright owner cannot be located
(5) If the organization cannot locate the copyright owner, despite making
reasonable efforts to do so, the organization shall pay, in accordance with the
regulations, any royalty established under the regulations to a collective society.
Reports
(6) A non-profit organization relying on the exception set out in subsection (1)
shall submit reports to an authority, in accordance with the regulations, on the
organization’s activities under this section.
Regulations
(7) The Governor in Council may make regulations
(a) requiring that, before a non-profit organization provides, or provides
access to, a work or other subject-matter under paragraph (1)(b), the
organization enter into a contract with respect to the use of the work or other
subject-matter with, as the case may be, the recipient non-profit organization
or the non-profit organization through which the request was made;
(b) respecting the form and content of such contracts;
(c) respecting any royalties to be paid under subsections (4) and (5);
(d) respecting to which collective society a royalty is payable in relation to
works or other subject-matter, or classes of works or other subject-matter, for
the purposes of subsection (5);
(e) respecting what constitutes reasonable efforts for the purposes of
subsection (5); and
(f) respecting the reports to be made, and the authorities to which the reports
are to be submitted, under subsection (6).
Definitions
(8) The following definitions apply in this section.
Marrakesh Treaty country means a country that is a party to the Marrakesh
Treaty to Facilitate Access to Published Works for Persons Who Are Blind,
Visually Impaired, or Otherwise Print Disabled, done at Marrakesh on June 27,
2013. (pays partie au Traité de Marrakech)
print disability means a disability that prevents or inhibits a person from reading
a literary, musical, artistic or dramatic work in its original format and includes such
a disability resulting from
(a) severe or total impairment of sight or the inability to focus or move one’s
eyes;
(b) the inability to hold or manipulate a book; or
(c) an impairment relating to comprehension. (déficience de lecture des
imprimés)
2012, c. 20, s. 37; 2016, c. 4, s. 2.
Definition of non-profit organization
32.02 In sections 32 and 32.01, non-profit organization includes a department,
agency or other portion of any order of government, including a municipal or local
government, when it is acting on a non-profit basis.
2016, c. 4, s. 3.
Statutory Obligations
No infringement
32.1 (1) It is not an infringement of copyright for any person
(a) to disclose, pursuant to the Access to Information Act, a record within the
meaning of that Act, or to disclose, pursuant to any like Act of the legislature
of a province, like material;
(b) to disclose, pursuant to the Privacy Act, personal information within the
meaning of that Act, or to disclose, pursuant to any like Act of the legislature
of a province, like information;
(c) to make a copy of an object referred to in section 14 of the Cultural
Property Export and Import Act, for deposit in an institution pursuant to a
direction under that section; and
(d) to make a fixation or copy of a work or other subject-matter in order to
comply with the Broadcasting Act or any rule, regulation or other instrument
made under it.
Limitation
(2) Nothing in paragraph (1)(a) or (b) authorizes a person to whom a record or
information is disclosed to do anything that, by this Act, only the owner of the
copyright in the record, personal information or like information, as the case may
be, has a right to do.
Destruction of fixation or copy
(3) Unless the Broadcasting Act otherwise provides, a person who makes a
fixation or copy under paragraph (1)(d) shall destroy it immediately on the
expiration of the period for which it must be kept pursuant to that Act, rule,
regulation or other instrument.
1997, c. 24, s. 19.
Miscellaneous
Permitted acts
32.2 (1) It is not an infringement of copyright
(a) for an author of an artistic work who is not the owner of the copyright in the
work to use any mould, cast, sketch, plan, model or study made by the author
for the purpose of the work, if the author does not thereby repeat or imitate the
main design of the work;
(b) for any person to reproduce, in a painting, drawing, engraving, photograph
or cinematographic work
(i) an architectural work, provided the copy is not in the nature of an
architectural drawing or plan, or
(ii) a sculpture or work of artistic craftsmanship or a cast or model of a
sculpture or work of artistic craftsmanship, that is permanently situated in a
public place or building;
(c) for any person to make or publish, for the purposes of news reporting or
news summary, a report of a lecture given in public, unless the report is
prohibited by conspicuous written or printed notice affixed before and
maintained during the lecture at or about the main entrance of the building in
which the lecture is given, and, except while the building is being used for
public worship, in a position near the lecturer;
(d) for any person to read or recite in public a reasonable extract from a
published work;
(e) for any person to make or publish, for the purposes of news reporting or
news summary, a report of an address of a political nature given at a public
meeting; or
(f) for an individual to use for private or non-commercial purposes, or permit
the use of for those purposes, a photograph or portrait that was commissioned
by the individual for personal purposes and made for valuable consideration,
unless the individual and the owner of the copyright in the photograph or
portrait have agreed otherwise.
Further permitted acts
(2) It is not an infringement of copyright for a person to do any of the following
acts without motive of gain at any agricultural or agricultural-industrial exhibition
or fair that receives a grant from or is held by its directors under federal, provincial
or municipal authority:
(a) the live performance in public of a musical work;
(b) the performance in public of a sound recording embodying a musical work
or a performer’s performance of a musical work; or
(c) the performance in public of a communication signal carrying
(i) the live performance in public of a musical work, or
(ii) a sound recording embodying a musical work or a performer’s
performance of a musical work.
Further permitted acts
(3) No religious organization or institution, educational institution and no
charitable or fraternal organization shall be held liable to pay any compensation
for doing any of the following acts in furtherance of a religious, educational or
charitable object:
(a) the live performance in public of a musical work;
(b) the performance in public of a sound recording embodying a musical work
or a performer’s performance of a musical work; or
(c) the performance in public of a communication signal carrying
(i) the live performance in public of a musical work, or
(ii) a sound recording embodying a musical work or a performer’s
performance of a musical work.
1997, c. 24, s. 19; 2012, c. 20, s. 38.
Interpretation
No right to equitable remuneration
32.3 For the purposes of sections 29 to 32.2, an act that does not infringe
copyright does not give rise to a right to remuneration conferred by section 19.
1997, c. 24, s. 19.
Compensation for Acts Done Before Recognition of Copyright of Performers and Broadcasters
Certain rights and interests protected
32.4 (1) Notwithstanding section 27, where a person has, before the later of
January 1, 1996 and the day on which a country becomes a WTO member,
incurred an expenditure or liability in connection with, or in preparation for, the
doing of an act that would have infringed copyright under section 26 commencing
on the later of those days, had that country been a WTO member, any right or
interest of that person that
(a) arises from or in connection with the doing of that act, and
(b) is subsisting and valuable on the later of those days
is not prejudiced or diminished by reason only that that country has become a
WTO member, except as provided by an order of the Board made under
subsection 78(3).
Compensation
(2) Notwithstanding subsection (1), a person’s right or interest that is protected by
that subsection terminates if and when the owner of the copyright pays that
person such compensation as is agreed to between the parties or, failing
agreement, as is determined by the Board in accordance with section 78.
Limitation
(3) Nothing in subsections (1) and (2) affects any right of a performer available in
law or equity.
1997, c. 24, s. 19.
Certain rights and interests protected
32.5 (1) Notwithstanding section 27, where a person has, before the later of the
coming into force of Part II and the day on which a country becomes a Rome
Convention country, incurred an expenditure or liability in connection with, or in
preparation for, the doing of an act that would have infringed copyright under
section 15 or 21 commencing on the later of those days, had Part II been in force
or had that country been a Rome Convention country, any right or interest of that
person that
(a) arises from or in connection with the doing of that act, and
(b) is subsisting and valuable on the later of those days
is not prejudiced or diminished by reason only that Part II has come into force or
that the country has become a Rome Convention country, except as provided by
an order of the Board made under subsection 78(3).
Compensation
(2) Notwithstanding subsection (1), a person’s right or interest that is protected by
that subsection terminates if and when the owner of the copyright pays that
person such compensation as is agreed to between the parties or, failing
agreement, as is determined by the Board in accordance with section 78.
Limitation
(3) Nothing in subsections (1) and (2) affects any right of a performer available in
law or equity.
1997, c. 24, s. 19.
Certain rights and interests protected
32.6 Despite sections 27, 28.1 and 28.2, if a person has, before the day on which
subsection 15(1.1), 17.1(1) or 18(1.1) applies in respect of a particular
performers’ performance or sound recording, incurred an expenditure or a liability
in connection with, or in preparation for, the doing of an act that would, if done
after that day, have infringed rights under that subsection, any right or interest of
that person that arises from, or in connection with, the doing of that act and that is
subsisting and valuable on that day is not, for two years after the day on which
this section comes into force, prejudiced or diminished by reason only of the
subsequent application of that subsection in respect of the performers’
performance or sound recording.
2012, c. 20, s. 39.
Compensation for Acts Done Before Recognition of Copyright or Moral Rights
Certain rights and interests protected
33 (1) Despite subsections 27(1), (2) and (4) and sections 27.1, 28.1 and 28.2, if
a person has, before the later of January 1, 1996 and the day on which a country
becomes a treaty country other than a WCT country, incurred an expenditure or
liability in connection with, or in preparation for, the doing of an act that, if that
country had been such a treaty country, would have infringed copyright in a work
or moral rights in respect of a work, any right or interest of that person that arises
from, or in connection with, the doing of that act and that is subsisting and
valuable on the later of those days is not, except as provided by an order of the
Board made under subsection 78(3), prejudiced or diminished by reason only of
that country having become such a treaty country.
Compensation
(2) Notwithstanding subsection (1), a person’s right or interest that is protected by
that subsection terminates, as against the copyright owner or author, if and when
that copyright owner or the author, as the case may be, pays that person such
compensation as is agreed to between the parties or, failing agreement, as is
determined by the Board in accordance with section 78.
R.S., 1985, c. C-42, s. 33; R.S., 1985, c. 10 (4th Supp.), s. 7; 1997, c. 24, s. 19; 2012, c. 20, s.
40.
Certain rights and interests protected
33.1 (1) Despite subsections 27(1), (2) and (4) and sections 27.1, 28.1 and 28.2,
if a person has, before the later of the day on which this section comes into force
and the day on which a country that is a treaty country but not a WCT country
becomes a WCT country, incurred an expenditure or liability in connection with, or
in preparation for, the doing of an act that, if that country had been a WCT
country, would have infringed a right under paragraph 3(1)(j), any right or interest
of that person that arises from, or in connection with, the doing of that act and that
is subsisting and valuable on the later of those days is not, except as provided by
an order of the Board made under subsection 78(3), prejudiced or diminished by
reason only of that country having become a WCT country.
Compensation
(2) Despite subsection (1), a person’s right or interest that is protected by that
subsection terminates as against the copyright owner if and when the owner pays
the person any compensation that is agreed to between the parties or, failing
agreement, that is determined by the Board in accordance with section 78.
2012, c. 20, s. 41.
Certain rights and interests protected
33.2 (1) Despite subsections 27(1), (2) and (4) and sections 27.1, 28.1 and 28.2,
if a person has, before the later of the day on which this section comes into force
and the day on which a country that is not a treaty country becomes a WCT
country, incurred an expenditure or a liability in connection with, or in preparation
for, the doing of an act that, if that country had been a WCT country, would have
infringed copyright in a work or moral rights in respect of a work, any right or
interest of that person that arises from, or in connection with, the doing of that act
and that is subsisting and valuable on the later of those days is not, except as
provided by an order of the Board made under subsection 78(3), prejudiced or
diminished by reason only of that country having become a WCT country.
Compensation
(2) Despite subsection (1), a person’s right or interest that is protected by that
subsection terminates as against the copyright owner if and when that owner
pays the person any compensation that is agreed to between the parties or,
failing agreement, that is determined by the Board in accordance with section 78.
2012, c. 20, s. 41.
PART IV
Remedies
Civil Remedies
Infringement of Copyright and Moral Rights
Copyright
34 (1) Where copyright has been infringed, the owner of the copyright 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 a right.
Moral rights
(2) In any proceedings for an infringement of moral rights, the court may grant to
the holder of those rights all remedies by way of injunction, damages, accounts,
delivery up and otherwise that are or may be conferred by law for the
infringement of a right.
Costs
(3) The costs of all parties in any proceedings in respect of the infringement of a
right conferred by this Act shall be in the discretion of the court.
Summary proceedings
(4) The following proceedings may be commenced or proceeded with by way of
application or action and shall, in the case of an application, be heard and
determined without delay and in a summary way:
(a) proceedings for infringement of copyright or moral rights;
(b) proceedings taken under section 44.12, 44.2 or 44.4; and
(c) proceedings taken in respect of
(i) a tariff approved by the Board under Part VII.1 or VIII, or
(ii) agreements referred to in subsection 67(3).
Practice and procedure
(5) The rules of practice and procedure, in civil matters, of the court in which
proceedings are commenced by way of application apply to those proceedings,
but where those rules do not provide for the proceedings to be heard and
determined without delay and in a summary way, the court may give such
directions as it considers necessary in order to so provide.
Actions
(6) The court in which proceedings are instituted by way of application may,
where it considers it appropriate, direct that the proceeding be proceeded with as
an action.
Meaning of application
(7) In this section, application means a proceeding that is commenced other
than by way of a writ or statement of claim.
R.S., 1985, c. C-42, s. 34; R.S., 1985, c. 10 (4th Supp.), s. 8; 1993, c. 15, s. 3(E), c. 44, s. 65;
1994, c. 47, s. 62; 1997, c. 24, s. 20; 2012, c. 20, s. 43; 2014, c. 32, s. 6; 2018, c. 27, s. 286.
Presumptions respecting copyright and ownership
34.1 (1) In any civil proceedings taken under this Act in which the defendant puts
in issue either the existence of the copyright or the title of the plaintiff to it,
(a) copyright shall be presumed, unless the contrary is proved, to subsist in
the work, performer’s performance, sound recording or communication signal,
as the case may be; and
(b) the author, performer, maker or broadcaster, as the case may be, shall,
unless the contrary is proved, be presumed to be the owner of the copyright.
Where no grant registered
(2) Where any matter referred to in subsection (1) is at issue and no assignment
of the copyright, or licence granting an interest in the copyright, has been
registered under this Act,
(a) if a name purporting to be that of
(i) the author of the work,
(ii) the performer of the performer’s performance,
(iii) the maker of the sound recording, or
(iv) the broadcaster of the communication signal
is printed or otherwise indicated thereon in the usual manner, the person
whose name is so printed or indicated shall, unless the contrary is proved, be
presumed to be the author, performer, maker or broadcaster;
(b) if
(i) no name is so printed or indicated, or if the name so printed or indicated
is not the true name of the author, performer, maker or broadcaster or the
name by which that person is commonly known, and
(ii) a name purporting to be that of the publisher or owner of the work,
performer’s performance, sound recording or communication signal is
printed or otherwise indicated thereon in the usual manner,
the person whose name is printed or indicated as described in subparagraph
(ii) shall, unless the contrary is proved, be presumed to be the owner of the
copyright in question; and
(c) if, on a cinematographic work, a name purporting to be that of the maker of
the cinematographic work appears in the usual manner, the person so named
shall, unless the contrary is proved, be presumed to be the maker of the
cinematographic work.
1997, c. 24, s. 20; 2012, c. 20, s. 44.
Liability for infringement
35 (1) Where a person infringes copyright, the person is liable to pay such
damages to the owner of the copyright as the owner has suffered due to the
infringement and, in addition to those damages, such part of the profits that the
infringer has made from the infringement and that were not taken into account in
calculating the damages as the court considers just.
Proof of profits
(2) In proving profits,
(a) the plaintiff shall be required to prove only receipts or revenues derived
from the infringement; and
(b) the defendant shall be required to prove every element of cost that the
defendant claims.
R.S., 1985, c. C-42, s. 35; 1997, c. 24, s. 20.
36 [Repealed, 2012, c. 20, s. 45]
37 [Repealed, 2012, c. 20, s. 45]
Recovery of possession of copies, plates
38 (1) Subject to subsection (2), the owner of the copyright in a work or other
subject-matter may
(a) recover possession of all infringing copies of that work or other subject-
matter, and of all plates used or intended to be used for the production of
infringing copies, and
(b) take proceedings for seizure of those copies or plates before judgment if,
under the law of Canada or of the province in which those proceedings are
taken, a person is entitled to take such proceedings,
as if those copies or plates were the property of the copyright owner.
Powers of court
(2) On application by
(a) a person from whom the copyright owner has recovered possession of
copies or plates referred to in subsection (1),
(b) a person against whom proceedings for seizure before judgment of copies
or plates referred to in subsection (1) have been taken, or
(c) any other person who has an interest in those copies or plates,
a court may order that those copies or plates be destroyed, or may make any
other order that it considers appropriate in the circumstances.
Notice to interested persons
(3) Before making an order under subsection (2), the court shall direct that notice
be given to any person who has an interest in the copies or plates in question,
unless the court is of the opinion that the interests of justice do not require such
notice to be given.
Circumstances court to consider
(4) In making an order under subsection (2), the court shall have regard to all the
circumstances, including
(a) the proportion, importance and value of the infringing copy or plate, as
compared to the substrate or carrier embodying it; and
(b) the extent to which the infringing copy or plate is severable from, or a
distinct part of, the substrate or carrier embodying it.
Limitation
(5) Nothing in this Act entitles the copyright owner to damages in respect of the
possession or conversion of the infringing copies or plates.
R.S., 1985, c. C-42, s. 38; 1997, c. 24, s. 20.
Statutory damages
38.1 (1) Subject to this section, a copyright owner may elect, at any time before
final judgment is rendered, to recover, instead of damages and profits referred to
in subsection 35(1), an award of statutory damages for which any one infringer is
liable individually, or for which any two or more infringers are liable jointly and
severally,
(a) in a sum of not less than $500 and not more than $20,000 that the court
considers just, with respect to all infringements involved in the proceedings for
each work or other subject-matter, if the infringements are for commercial
purposes; and
(b) in a sum of not less than $100 and not more than $5,000 that the court
considers just, with respect to all infringements involved in the proceedings for
all works or other subject-matter, if the infringements are for non-commercial
purposes.
Infringement of subsection 27(2.3)
(1.1) An infringement under subsection 27(2.3) may give rise to an award of
statutory damages with respect to a work or other subject-matter only if the
copyright in that work or other subject-matter was actually infringed as a result of
the use of a service referred to in that subsection.
Deeming — infringement of subsection 27(2.3)
(1.11) For the purpose of subsection (1), an infringement under subsection 27
(2.3) is deemed to be for a commercial purpose.
Infringements not involved in proceedings
(1.12) If the copyright owner has made an election under subsection (1) with
respect to a defendant’s infringements that are for non-commercial purposes,
they are barred from recovering statutory damages under this section from that
defendant with respect to any other of the defendant’s infringements that were
done for non-commercial purposes before the institution of the proceedings in
which the election was made.
No other statutory damages
(1.2) If a copyright owner has made an election under subsection (1) with respect
to a defendant’s infringements that are for non-commercial purposes, every other
copyright owner is barred from electing to recover statutory damages under this
section in respect of that defendant for any of the defendant’s infringements that
were done for non-commercial purposes before the institution of the proceedings
in which the election was made.
If defendant unaware of infringement
(2) If a copyright owner has made an election under subsection (1) and the
defendant satisfies the court that the defendant was not aware and had no
reasonable grounds to believe that the defendant had infringed copyright, the
court may reduce the amount of the award under paragraph (1)(a) to less than
$500, but not less than $200.
Special case
(3) In awarding statutory damages under paragraph (1)(a) or subsection (2), the
court may award, with respect to each work or other subject-matter, a lower
amount than $500 or $200, as the case may be, that the court considers just, if
(a) either
(i) there is more than one work or other subject-matter in a single medium,
or
(ii) the award relates only to one or more infringements under subsection
27(2.3); and
(b) the awarding of even the minimum amount referred to in that paragraph or
that subsection would result in a total award that, in the court’s opinion, is
grossly out of proportion to the infringement.
Limitation — certain acts
(4) A collective society or copyright owner who has authorized a collective society
to act on their behalf may make an election under this section with respect to an
act set out in subsection (4.1) only if applicable royalties are set out in an
approved tariff or fixed under subsection 71(2) and the defendant has not paid
them. If they make the election, the collective society or copyright owner may only
recover, in lieu of any other remedy of a monetary nature provided by this Act, an
award of statutory damages in respect of such acts in a sum of not less than
three and not more than ten times the amount of the applicable royalties, as the
court considers just.
Acts for the purposes of subsection (4)
(4.1) Subsection (4) applies with respect to the following acts:
(a) the performance in public of musical works or dramatico-musical works, of
performer’s performances of such works, or of sound recordings embodying
such works or performances; and
(b) the communication to the public by telecommunication of musical works or
dramatico-musical works, other than as described in subsection 31(2), of
performer’s performances of such works, or of sound recordings embodying
such works or performances.
Factors to consider
(5) In exercising its discretion under subsections (1) to (4), the court shall
consider all relevant factors, including
(a) the good faith or bad faith of the defendant;
(b) the conduct of the parties before and during the proceedings;
(c) the need to deter other infringements of the copyright in question; and
(d) in the case of infringements for non-commercial purposes, the need for an
award to be proportionate to the infringements, in consideration of the
hardship the award may cause to the defendant, whether the infringement
was for private purposes or not, and the impact of the infringements on the
plaintiff.
No award
(6) No statutory damages may be awarded against
(a) an educational institution or a person acting under its authority that has
committed an act referred to in section 29.6 or 29.7 and has not paid any
royalties or complied with any terms and conditions fixed under this Act in
relation to the commission of the act;
(b) an educational institution, library, archive or museum that is sued in the
circumstances referred to in section 38.2;
(c) a person who infringes copyright under paragraph 27(2)(e) or section 27.1,
where the copy in question was made with the consent of the copyright owner
in the country where the copy was made; or
(d) an educational institution that is sued in the circumstances referred to in
subsection 30.02(7) or a person acting under its authority who is sued in the
circumstances referred to in subsection 30.02(8).
Exemplary or punitive damages not affected
(7) An election under subsection (1) does not affect any right that the copyright
owner may have to exemplary or punitive damages.
1997, c. 24, s. 20; 2012, c. 20, s. 46; 2018, c. 27, s. 287.
Maximum amount that may be recovered
38.2 (1) An owner of copyright in a work who has not authorized a collective
society to authorize its reprographic reproduction may recover, in proceedings
against an educational institution, library, archive or museum that has reproduced
the work, a maximum amount equal to the amount of royalties that would have
been payable to the society in respect of the reprographic reproduction, if it were
authorized, either
(a) under any agreement entered into with the collective society; or
(b) under a tariff approved by the Board under section 70.
Agreements with more than one collective society
(2) Where agreements respecting reprographic reproduction have been signed
with more than one collective society or where more than one tariff applies or
where both agreements and tariffs apply, the maximum amount that the copyright
owner may recover is the largest amount of the royalties provided for in any of
those agreements or tariffs.
Application
(3) Subsections (1) and (2) apply only where
(a) the collective society is entitled to authorize, or the tariff provides for the
payment of royalties in respect of, the reprographic reproduction of that
category of work; and
(b) copying of that general nature and extent is covered by the agreement or
tariff.
1997, c. 24, s. 20; 2018, c. 27, s. 288.
Injunction only remedy when defendant not aware of copyright
39 (1) Subject to subsection (2), in any proceedings for infringement of copyright,
the plaintiff is not entitled to any remedy other than an injunction in respect of the
infringement if the defendant proves that, at the date of the infringement, the
defendant was not aware and had no reasonable ground for suspecting that
copyright subsisted in the work or other subject-matter in question.
Exception where copyright registered
(2) Subsection (1) does not apply if, at the date of the infringement, the copyright
was duly registered under this Act.
R.S., 1985, c. C-42, s. 39; 1997, c. 24, s. 20.
Wide injunction
39.1 (1) When granting an injunction in respect of an infringement of copyright in
a work or other subject-matter, the court may further enjoin the defendant from
infringing the copyright in any other work or subject-matter if
(a) the plaintiff is the owner of the copyright or the person to whom an interest
in the copyright has been granted by licence; and
(b) the plaintiff satisfies the court that the defendant will likely infringe the
copyright in those other works or subject-matter unless enjoined by the court
from doing so.
Application of injunction
(2) An injunction granted under subsection (1) may extend to works or other
subject-matter
(a) in respect of which the plaintiff was not, at the time the proceedings were
commenced, the owner of the copyright or the person to whom an interest in
the copyright has been granted by licence; or
(b) that did not exist at the time the proceedings were commenced.
1997, c. 24, s. 20.
No injunction in case of a building
40 (1) Where the construction of a building or other structure that infringes or that,
if completed, would infringe the copyright in some other work has been
commenced, the owner of the copyright is not entitled to obtain an injunction in
respect of the construction of that building or structure or to order its demolition.
Certain remedies inapplicable
(2) Sections 38 and 42 do not apply in any case in respect of which subsection
(1) applies.
R.S., 1985, c. C-42, s. 40; 1997, c. 24, s. 21.
Technological Protection Measures and Rights Management Information
Definitions
41 The following definitions apply in this section and in sections 41.1 to 41.21.
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.
(contourner)
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. (mesure technique de protection)
R.S., 1985, c. C-42, s. 41; R.S., 1985, c. 10 (4th Supp.), s. 9; 1997, c. 24, s. 22; 2012, c. 20, s.
47.
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.
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.
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.
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).
2012, c. 20, s. 47.
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.
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.
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.
2012, c. 20, s. 47.
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.
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.
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.
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.
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.
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.
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.
2012, c. 20, s. 47.
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.
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.
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.
2012, c. 20, s. 47.
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.
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.
2012, c. 20, s. 47.
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.
Services
(2) Paragraph 41.1(1)(b) does not apply if the services are provided to a person
described in subsection (1).
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.
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.
2012, c. 20, s. 47.
Persons with perceptual disabilities
41.16 (1) Paragraph 41.1(1)(a) does not apply to a person with a perceptual
disability, to another person acting at their request or to a non-profit organization,
as defined in section 32.02, acting for their benefit, if that person or organization
circumvents a technological protection measure solely for one or more of the
following purposes:
(a) to make a work, a performer’s performance fixed in a sound recording or a
sound recording perceptible to the person with a perceptual disability;
(b) to permit a person, or a non-profit organization referred to in subsection 32
(1), to benefit from the exception set out in section 32;
(c) to permit a non-profit organization referred to in subsection 32.01(1) to
benefit from the exception set out in section 32.01.
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 non-profit organizations referred to in subsection (1) or
who manufactures, imports or provides a technology, device or component, for
the sole purpose of enabling those persons or non-profit organizations to
circumvent a technological protection measure in accordance with that
subsection.
2012, c. 20, s. 47; 2016, c. 4, s. 4.
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.
2012, c. 20, s. 47.
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.
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.
Definitions
(3) The following definitions apply in this section.
radio apparatus has the same meaning as in section 2 of the
Radiocommunication Act. (appareil radio)
telecommunications service has the same meaning as in subsection 2(1) of
the Telecommunications Act. (service de télécommunication)
2012, c. 20, s. 47.
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.
2012, c. 20, s. 47.
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.
2012, c. 20, s. 47.
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.
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.
2012, c. 20, s. 47.
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.
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).
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.
2012, c. 20, s. 47.
General Provisions
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.
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 44.12, 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.
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.
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.
2012, c. 20, s. 47; 2014, c. 32, s. 6.
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.
2012, c. 20, s. 47.
Provisions Respecting Providers of Network Services or Information Location Tools
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).
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.
Prohibited content
(3) A notice of claimed infringement shall not contain
(a) an offer to settle the claimed infringement;
(b) a request or demand, made in relation to the claimed infringement, for
payment or for personal information;
(c) a reference, including by way of hyperlink, to such an offer, request or
demand; and
(d) any other information that may be prescribed by regulation.
2012, c. 20, s. 47; 2018, c. 27, s. 243.
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 subsections 41.25(2) and (3)
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.
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.
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.
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).
2012, c. 20, s. 47; 2018, c. 27, s. 244.
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.
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.
Limitation
(3) If the provider receives a notice of claimed infringement, relating to a work or
other subject-matter, that complies with subsections 41.25(2) and (3) 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.
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).
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.
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.
2012, c. 20, s. 47; 2018, c. 27, s. 245.
Criminal Remedies
Offences
42 (1) Every person commits an offence who knowingly
(a) makes for sale or rental an infringing copy of a work or other subject-
matter in which copyright subsists;
(b) sells or rents out, or by way of trade exposes or offers for sale or rental, an
infringing copy of a work or other subject-matter in which copyright subsists;
(c) distributes infringing copies of a work or other subject-matter in which
copyright subsists, either for the purpose of trade or to such an extent as to
affect prejudicially the owner of the copyright;
(d) by way of trade exhibits in public an infringing copy of a work or other
subject-matter in which copyright subsists;
(e) possesses, for sale, rental, distribution for the purpose of trade or
exhibition in public by way of trade, an infringing copy of a work or other
subject-matter in which copyright subsists;
(f) imports, for sale or rental, into Canada any infringing copy of a work or
other subject-matter in which copyright subsists; or
(g) exports or attempts to export, for sale or rental, an infringing copy of a
work or other subject-matter in which copyright subsists.
Possession and performance offences
(2) Every person commits an offence who knowingly
(a) makes or possesses any plate that is specifically designed or adapted for
the purpose of making infringing copies of any work or other subject-matter in
which copyright subsists; or
(b) for private profit causes to be performed in public, without the consent of
the owner of the copyright, any work or other subject-matter in which copyright
subsists.
Punishment
(2.1) Every person who commits an offence under subsection (1) or (2) is liable
(a) on conviction on indictment, to a fine of not more than $1,000,000 or to
imprisonment for a term of not more than five years or to both; or
(b) on summary conviction, to a fine of not more than $25,000 or to
imprisonment for a term of not more than six months or to both.
Power of court to deal with copies or plates
(3) The court before which any proceedings under this section are taken may, on
conviction, order that all copies of the work or other subject-matter that appear to
it to be infringing copies, or all plates in the possession of the offender
predominantly used for making infringing copies, be destroyed or delivered up to
the owner of the copyright or otherwise dealt with as the court may think fit.
Notice
(3.01) Before making an order under subsection (3), the court shall require that
notice be given to the owner of the copies or plates and to any other person who,
in the court’s opinion, appears to have a right or interest in them, unless the court
is of the opinion that the interests of justice do not require that the notice be
given.
Circumvention of technological protection measure
(3.1) Every person, except a person who is acting on behalf of a library, archive
or museum or an educational institution, is guilty of an offence who knowingly and
for commercial purposes contravenes section 41.1 and is liable
(a) on conviction on indictment, to a fine not exceeding $1,000,000 or to
imprisonment for a term not exceeding five years or to both; or
(b) on summary conviction, to a fine not exceeding $25,000 or to
imprisonment for a term not exceeding six months or to both.
Limitation period
(4) Proceedings by summary conviction in respect of an offence under this
section may be instituted at any time within, but not later than, two years after the
time when the offence was committed.
Parallel importation
(5) For the purposes of this section, a copy of a work or other subject-matter is
not infringing if the copy was made with the consent of the owner of the copyright
in the country where the copy was made.
R.S., 1985, c. C-42, s. 42; R.S., 1985, c. 10 (4th Supp.), s. 10; 1997, c. 24, s. 24; 2012, c. 20, s.
48; 2014, c. 32, s. 4.
Infringement in case of dramatic, operatic or musical work
43 (1) Any person who, without the written consent of the owner of the copyright
or of the legal representative of the owner, knowingly performs or causes to be
performed in public and for private profit the whole or any part, constituting an
infringement, of any dramatic or operatic work or musical composition in which
copyright subsists in Canada is guilty of an offence and liable on summary
conviction to a fine not exceeding two hundred and fifty dollars and, in the case of
a second or subsequent offence, either to that fine or to imprisonment for a term
not exceeding two months or to both.
Change or suppression of title or author’s name
(2) Any person who makes or causes to be made any change in or suppression
of the title, or the name of the author, of any dramatic or operatic work or musical
composition in which copyright subsists in Canada, or who makes or causes to be
made any change in the work or composition itself without the written consent of
the author or of his legal representative, in order that the work or composition
may be performed in whole or in part in public for private profit, is guilty of an
offence and liable on summary conviction to a fine not exceeding five hundred
dollars and, in the case of a second or subsequent offence, either to that fine or to
imprisonment for a term not exceeding four months or to both.
R.S., c. C-30, s. 26.
Limitation or Prescription Period
Limitation or prescription period for civil remedies
43.1 (1) Subject to subsection (2), a court may award a remedy for any act or
omission that has been done contrary to this Act only if
(a) the proceedings for the act or omission giving rise to a remedy are
commenced within three years after it occurred, in the case where the plaintiff
knew, or could reasonably have been expected to know, of the act or omission
at the time it occurred; or
(b) the proceedings for the act or omission giving rise to a remedy are
commenced within three years after the time when the plaintiff first knew of it,
or could reasonably have been expected to know of it, in the case where the
plaintiff did not know, and could not reasonably have been expected to know,
of the act or omission at the time it occurred.
Restriction
(2) The court shall apply the limitation or prescription period set out in paragraph
(1)(a) or (b) only in respect of a party who pleads a limitation period.
1994, c. 47, s. 64; 1997, c. 24, s. 25; 2012, c. 20, s. 49.
Importation and Exportation
Interpretation
Definitions
44 The following definitions apply in sections 44.02 to 44.4.
court means the Federal Court or the superior court of a province. (tribunal)
customs officer has the meaning assigned by the definition officer in subsection
2(1) of the Customs Act. (agent des douanes)
duties has the same meaning as in subsection 2(1) of the Customs Act. (droits)
Minister means the Minister of Public Safety and Emergency Preparedness.
(ministre)
release has the same meaning as in subsection 2(1) of the Customs Act.
(dédouanement)
working day means a day other than a Saturday or a holiday. (jour ouvrable)
R.S., 1985, c. C-42, s. 44; R.S., 1985, c. 41 (3rd Supp.), s. 116; 1997, c. 36, s. 205; 1999, c. 17, s.
119; 2005, c. 38, s. 139; 2014, c. 32, s. 5.
Prohibition and Detention by Customs Officer
Prohibition
Prohibition on importation or exportation
44.01 (1) Copies of a work or other subject-matter in which copyright subsists
shall not be imported or exported if
(a) they were made without the consent of the owner of the copyright in the
country where they were made; and
(b) they infringe copyright or, if they were not made in Canada, they would
infringe copyright had they been made in Canada by the person who made
them.
Exception
(2) Subsection (1) does not apply to
(a) copies that are imported or exported by an individual in their possession or
baggage if the circumstances, including the number of copies, indicate that
the copies are intended only for their personal use; or
(b) copies that, while being shipped from one place outside Canada to
another, are in customs transit control or customs transhipment control in
Canada.
2014, c. 32, s. 5.
Request for Assistance
Request for assistance
44.02 (1) The owner of copyright in a work or other subject-matter may file with
the Minister, in the form and manner specified by the Minister, a request for
assistance in pursuing remedies under this Act with respect to copies imported or
exported in contravention of section 44.01.
Information in request
(2) The request for assistance shall include the copyright owner’s name and
address in Canada and any other information that is required by the Minister,
including information about the work or other subject-matter in question.
Validity period
(3) A request for assistance is valid for a period of two years beginning on the day
on which it is accepted by the Minister. The Minister may, at the request of the
copyright owner, extend the period for two years, and may do so more than once.
Security
(4) The Minister may, as a condition of accepting a request for assistance or of
extending a request’s period of validity, require that the copyright owner furnish
security, in an amount and form fixed by the Minister, for the payment of an
amount for which the copyright owner becomes liable under section 44.07.
Update
(5) The copyright owner shall inform the Minister in writing, as soon as
practicable, of any changes to
(a) the subsistence of the copyright that is the subject of the request for
assistance; or
(b) the ownership of that copyright.
2014, c. 32, s. 5.
Measures Relating to Detained Copies
Provision of information by customs officer
44.03 A customs officer who is detaining copies of a work or other subject-matter
under section 101 of the Customs Act may, in the officer’s discretion, to obtain
information about whether the importation or exportation of the copies is
prohibited under section 44.01, provide the owner of copyright in that work or
subject-matter with a sample of the copies and with any information about the
copies that the customs officer reasonably believes does not directly or indirectly
identify any person.
2014, c. 32, s. 5.
Provision of information to pursue remedy
44.04 (1) A customs officer who is detaining copies of a work or other subject-
matter under section 101 of the Customs Act and who has reasonable grounds to
suspect that the importation or exportation of the copies is prohibited under
section 44.01 may, in the officer’s discretion, if the Minister has accepted a
request for assistance with respect to the work or subject-matter filed by the
owner of copyright in it, provide that owner with a sample of the copies and with
information about the copies that could assist them in pursuing a remedy under
this Act, such as
(a) a description of the copies and of their characteristics;
(b) the name and address of their owner, importer, exporter and consignee
and of the person who made them;
(c) their quantity;
(d) the countries in which they were made and through which they passed in
transit; and
(e) the day on which they were imported, if applicable.
Detention
(2) Subject to subsection (3), the customs officer shall not detain, for the purpose
of enforcing section 44.01, the copies for more than 10 working days — or, if the
copies are perishable, for more than five days — after the day on which the
customs officer first sends or makes available a sample or information to the
copyright owner under subsection (1). At the request of the copyright owner made
while the copies are detained for the purpose of enforcing section 44.01, the
customs officer may, having regard to the circumstances, detain non-perishable
copies for one additional period of not more than 10 working days.
Notice of proceedings
(3) If, before the copies are no longer detained for the purpose of enforcing
section 44.01, the owner of copyright has provided the Minister, in the manner
specified by the Minister, with a copy of a document filed with a court
commencing proceedings to obtain a remedy under this Act with respect to the
detained copies, the customs officer shall continue to detain them until the
Minister is informed in writing that
(a) the proceedings are finally disposed of, settled or abandoned;
(b) a court directs that the copies are no longer to be detained for the purpose
of the proceedings; or
(c) the copyright owner consents to the copies no longer being so detained.
Continued detention
(4) The occurrence of any of the events referred to in paragraphs (3)(a) to (c)
does not preclude a customs officer from continuing to detain the copies under
the Customs Act for a purpose other than the proceedings.
2014, c. 32, s. 5.
Restriction on information use — section 44.03
44.05 (1) A person who receives a sample or information that is provided under
section 44.03 shall not use the information, or information that is derived from the
sample, for any purpose other than to give information to the customs officer
about whether the importation or exportation of the copies is prohibited under
section 44.01.
Restriction on information use — subsection 44.04(1)
(2) A person who receives a sample or information that is provided under
subsection 44.04(1) shall not use the information, or information that is derived
from the sample, for any purpose other than to pursue remedies under this Act.
For greater certainty
(3) For greater certainty, subsection (2) does not prevent the confidential
communication of information about the copies for the purpose of reaching an
out-of-court settlement.
2014, c. 32, s. 5.
Inspection
44.06 After a sample or information has been provided under subsection 44.04
(1), a customs officer may, in the officer’s discretion, give the owner, importer,
exporter and consignee of the detained copies and the owner of copyright an
opportunity to inspect the copies.
2014, c. 32, s. 5.
Liability for charges
44.07 (1) The owner of copyright who has received a sample or information under
subsection 44.04(1) is liable to Her Majesty in right of Canada for the storage and
handling charges for the detained copies — and, if applicable, for the charges for
destroying them — for the period beginning on the day after the day on which a
customs officer first sends or makes available a sample or information to that
owner under that subsection and ending on the first day on which one of the
following occurs:
(a) the copies are no longer detained for the purpose of enforcing section
44.01 or, if subsection 44.04(3) applies, for the purpose of the proceedings
referred to in that subsection;
(b) the Minister receives written notification in which the owner states that the
importation or exportation of the copies does not, with respect to the owner’s
copyright, contravene section 44.01;
(c) the Minister receives written notification in which the owner states that they
will not, while the copies are detained for the purpose of enforcing section
44.01, commence proceedings to obtain a remedy under this Act with respect
to them.
Exception — paragraph (1)(a)
(2) Despite paragraph (1)(a), if the copies are forfeited under subsection 39(1) of
the Customs Act and the Minister did not, before the end of the detention of the
copies for the purpose of enforcing section 44.01, receive a copy of a document
filed with a court commencing proceedings to obtain a remedy under this Act with
respect to the detained copies or the written notification referred to in paragraph
(1)(b) or (c), the period ends on the day on which the copies are forfeited.
Exception — paragraph (1)(c)
(3) Despite paragraph (1)(c), if the copies are forfeited under subsection 39(1) of
the Customs Act after the Minister has received the written notification referred to
in that paragraph, the period ends on the day on which the copies are forfeited.
Joint and several or solidary liability
(4) The owner and the importer or exporter of copies that are forfeited in the
circumstances set out in subsection (2) or (3) are jointly and severally, or
solidarily, liable to the owner of copyright for all the charges under subsection (1)
paid by the copyright owner with respect to the period
(a) in the circumstances referred to in subsection (2), beginning on the day on
which the copies are no longer detained for the purpose of enforcing section
44.01 and ending on the day on which the copies are forfeited; and
(b) in the circumstances referred to in subsection (3), beginning on the day on
which the Minister receives the written notification referred to in paragraph (1)
(c) and ending on the day on which the copies are forfeited.
Exception
(5) Subsections (1) to (3) do not apply if
(a) the detention of the copies for the purpose of enforcing section 44.01 ends
before the expiry of 10 working days — or, if the copies are perishable,
before the expiry of five days — after the day on which the customs officer
first sends or makes available a sample or information to the copyright owner
under subsection 44.04(1); and
(b) the Minister has not, by the end of the detention, received a copy of a
document filed with a court commencing proceedings to obtain a remedy
under this Act with respect to the detained copies or the written notification
referred to in paragraph (1)(b) or (c).
2014, c. 32, s. 5.
No Liability
No liability
44.08 Neither Her Majesty nor a customs officer is liable for any loss or damage
suffered in relation to the enforcement or application of sections 44.01 to 44.04
and 44.06 because of
(a) the detention of copies of a work or other subject-matter, except if the
detention contravenes subsection 44.04(2);
(b) the failure to detain copies; or
(c) the release or cessation of detention of any copies, except if the release or
cessation contravenes subsection 44.04(3).
2014, c. 32, s. 5.
Powers of Court Relating to Detained Copies
Application to court
44.09 (1) In the course of proceedings referred to in subsection 44.04(3), the
court may, on the application of the Minister or a party to the proceedings,
(a) impose conditions on the storage or detention of the copies that are the
subject of the proceedings; or
(b) direct that the copies are no longer to be detained for the purpose of the
proceedings, on any conditions that the court may impose, if their owner,
importer, exporter or consignee furnishes security in an amount fixed by the
court.
Minister’s consent
(2) If a party applies to have the detained copies stored in a place other than a
bonded warehouse or a sufferance warehouse, as those terms are defined in
subsection 2(1) of the Customs Act, the Minister must consent to the storage of
the copies in that place before a condition to that effect is imposed under
subsection (1).
Customs Act
(3) The court may impose a condition described in subsection (2) despite section
31 of the Customs Act.
Continued detention
(4) A direction under paragraph (1)(b) that the copies are no longer to be detained
for the purpose of the proceedings does not preclude a customs officer from
continuing to detain the copies under the Customs Act for another purpose.
Security
(5) In the course of proceedings referred to in subsection 44.04(3), the court may,
on the application of the Minister or a party to the proceedings, require the owner
of copyright to furnish security, in an amount fixed by the court,
(a) to cover duties, storage and handling charges, and any other amount that
may become chargeable against the copies; and
(b) to answer any damages that may, because of the detention of the copies,
be sustained by the owner, importer, exporter or consignee of the copies.
2014, c. 32, s. 5.
Damages against copyright owner
44.1 (1) The court may award damages against the owner of copyright who
commenced proceedings referred to in subsection 44.04(3) to the owner,
importer, exporter or consignee of the copies who is a party to the proceedings
for losses, costs or prejudice suffered as a result of the detention of the copies if
the proceedings are dismissed or discontinued.
Damages awarded to copyright owner
(2) Any damages under subsection 34(1) awarded to the owner of copyright in
proceedings referred to in subsection 44.04(3) are to include the charges incurred
by the copyright owner as a result of storing, handling or, if applicable, destroying
the detained copies.
1993, c. 44, s. 66; 1997, c. 24, s. 27; 2005, c. 38, ss. 142, 145; 2014, c. 32, s. 5.
Prohibition Resulting from Notice
Importation of certain copyright works prohibited
44.11 Copies made outside Canada of any work in which copyright subsists that if
made in Canada would infringe copyright and as to which the owner of the
copyright gives notice in writing to the Canada Border Services Agency that the
owner desires that the copies not be imported into Canada, shall not be so
imported and are deemed to be included in tariff item No. 9897.00.00 in the List of
Tariff Provisions set out in the schedule to the Customs Tariff, with section 136 of
that Act applying accordingly.
2014, c. 32, s. 5.
Court-ordered Detention
Power of court
44.12 (1) A court may make an order described in subsection (3) if the court is
satisfied that
(a) copies of the work are about to be imported into Canada, or have been
imported into Canada but have not been released;
(b) the copies were either
(i) made without the consent of the person who is owner of the copyright in
the country where they were made, or
(ii) made elsewhere than in a country to which this Act extends; and
(c) the copies would infringe copyright if they were made in Canada by the
importer and the importer knows or should have known this.
Who may apply
(2) A court may make an order described in subsection (3) on application by the
owner of the copyright in a work in Canada.
Order of court
(3) In an order made under subsection (1), the court may
(a) direct the Minister
(i) to take reasonable measures, on the basis of information reasonably
required by the Minister and provided by the applicant, to detain the copies
of the work, and
(ii) to notify the applicant and the importer, immediately after detaining the
copies of the work, of the detention and the reasons for the detention; and
(b) provide for any other matters that the court considers appropriate.
How application made
(4) An application for an order under subsection (1) may be made in an action or
otherwise, and either on notice or ex parte, except that it must always be made
on notice to the Minister.
Security
(5) Before making an order under subsection (1), the court may require the
applicant to furnish security, in an amount fixed by the court,
(a) to cover duties, storage and handling charges and any other amount that
may become chargeable against the copies of the work; and
(b) to answer any damages that may by reason of the order be incurred by the
owner, importer or consignee of the work.
Application for directions
(6) The Minister may apply to the court for directions in implementing an order
made under subsection (1).
Minister may allow inspection
(7) The Minister may give the applicant or the importer an opportunity to inspect
the detained copies of the work for the purpose of substantiating or refuting, as
the case may be, the applicant’s claim.
If applicant fails to commence action
(8) Unless an order made under subsection (1) provides otherwise, the Minister
shall, subject to the Customs Act and to any other Act of Parliament that prohibits,
controls or regulates the importation or exportation of goods, release the copies
of the work without further notice to the applicant if, within 10 working days after
the applicant has been notified under subparagraph (3)(a)(ii), the applicant has
not notified the Minister that they have commenced a proceeding for a final
determination by the court of the issues referred to in paragraphs (1)(b) and (c).
If court finds in plaintiff’s favour
(9) If, in a proceeding commenced under this section, the court is satisfied that
the circumstances referred to in paragraphs (1)(b) and (c) existed, the court may
make any order that it considers appropriate in the circumstances, including an
order that the copies of the work be destroyed, or that they be delivered up to the
plaintiff as the plaintiff’s property absolutely.
Other remedies not affected
(10) For greater certainty, nothing in this section affects any remedy available
under any other provision of this Act or any other Act of Parliament.
2014, c. 32, s. 5.
Importation of books
44.2 (1) A court may, subject to this section, make an order described in
subsection 44.12(3) in relation to a book where the court is satisfied that
(a) copies of the book are about to be imported into Canada, or have been
imported into Canada but have not yet been released;
(b) copies of the book were made with the consent of the owner of the
copyright in the book in the country where the copies were made, but were
imported without the consent of the owner in Canada of the copyright in the
book; and
(c) the copies would infringe copyright if they were made in Canada by the
importer and the importer knows or should have known this.
Who may apply
(2) A court may make an order described in subsection 44.12(3) in relation to a
book on application by
(a) the owner of the copyright in the book in Canada;
(b) the exclusive licensee of the copyright in the book in Canada; or
(c) the exclusive distributor of the book.
Limitation
(3) Subsections (1) and (2) only apply where there is an exclusive distributor of
the book and the acts described in those subsections take place in the part of
Canada or in respect of the particular sector of the market for which the person is
the exclusive distributor.
Application of certain provisions
(4) Subsections 44.12(3) to (10) apply, with such modifications as the
circumstances require, in respect of an order made under subsection (1).
1994, c. 47, s. 66; 1997, c. 24, s. 28; 2014, c. 32, s. 6.
Limitation
44.3 No exclusive licensee of the copyright in a book in Canada, and no exclusive
distributor of a book, may obtain an order under section 44.2 against another
exclusive licensee of the copyright in that book in Canada or against another
exclusive distributor of that book.
1997, c. 24, s. 28.
Importation of other subject-matter
44.4 Section 44.12 applies, with such modifications as the circumstances require,
in respect of a sound recording, performer’s performance or communication
signal, where a fixation or a reproduction of a fixation of it
(a) is about to be imported into Canada, or has been imported into Canada but
has not yet been released;
(b) either
(i) was made without the consent of the person who then owned the
copyright in the sound recording, performer’s performance or
communication signal, as the case may be, in the country where the
fixation or reproduction was made, or
(ii) was made elsewhere than in a country to which Part II extends; and
(c) would infringe the right of the owner of copyright in the sound recording,
performer’s performance or communication signal if it was made in Canada by
the importer and the importer knows or should have known this.
1997, c. 24, s. 28; 2014, c. 32, s. 6.
Exceptions
45 (1) Notwithstanding anything in this Act, it is lawful for a person
(a) to import for their own use not more than two copies of a work or other
subject-matter made with the consent of the owner of the copyright in the
country where it was made;
(b) to import for use by a department of the Government of Canada or a
province copies of a work or other subject-matter made with the consent of the
owner of the copyright in the country where it was made;
(c) at any time before copies of a work or other subject-matter are made in
Canada, to import any copies, except copies of a book, made with the consent
of the owner of the copyright in the country where the copies were made, that
are required for the use of a library, archive, museum or educational
institution;
(d) to import, for the use of a library, archive, museum or educational
institution, not more than one copy of a book that is made with the consent of
the owner of the copyright in the country where the book was made; and
(e) to import copies, made with the consent of the owner of the copyright in
the country where they were made, of any used books, except textbooks of a
scientific, technical or scholarly nature for use within an educational institution
in a course of instruction.
Satisfactory evidence
(2) An officer of customs may, in the officer’s discretion, require a person seeking
to import a copy of a work or other subject-matter under this section to produce
satisfactory evidence of the facts necessary to establish the person’s right to
import the copy.
R.S., 1985, c. C-42, s. 45; R.S., 1985, c. 41 (3rd Supp.), s. 117; 1993, c. 44, s. 67; 1994, c. 47, s.
67; 1997, c. 24, s. 28.
PART V
Administration
Copyright Office
Copyright Office
46 The Copyright Office shall be attached to the Patent Office.
R.S., c. C-30, s. 29.
Powers of Commissioner and Registrar
47 The Commissioner of Patents shall exercise the powers conferred and
perform the duties imposed on him by this Act under the direction of the Minister,
and, in the absence of the Commissioner of Patents or if the Commissioner is
unable to act, the Registrar of Copyrights or other officer temporarily appointed by
the Minister may, as Acting Commissioner, exercise those powers and perform
those duties under the direction of the Minister.
R.S., c. C-30, s. 30.
Registrar
48 There shall be a Registrar of Copyrights.
R.S., c. C-30, s. 31.
Register of Copyrights, certificates and certified copies
49 The Commissioner of Patents, the Registrar of Copyrights or an officer, clerk
or employee of the Copyright Office may sign certificates and certified copies of
the Register of Copyrights.
R.S., 1985, c. C-42, s. 49; 1992, c. 1, s. 47; 1993, c. 15, s. 4.
Other duties of Registrar
50 The Registrar of Copyrights shall perform such other duties in connection with
the administration of this Act as may be assigned to him by the Commissioner of
Patents.
R.S., c. C-30, s. 33.
51 [Repealed, 1992, c. 1, s. 48]
Control of business and officials
52 The Commissioner of Patents shall, subject to the Minister, oversee and direct
the officers, clerks and employees of the Copyright Office, have general control of
the business thereof and perform such other duties as are assigned to him by the
Governor in Council.
R.S., c. C-30, s. 35.
Register to be evidence
53 (1) The Register of Copyrights is evidence of the particulars entered in it, and
a copy of an entry in the Register is evidence of the particulars of the entry if it is
certified by the Commissioner of Patents, the Registrar of Copyrights or an
officer, clerk or employee of the Copyright Office as a true copy.
Owner of copyright
(2) A certificate of registration of copyright is evidence that the copyright subsists
and that the person registered is the owner of the copyright.
Assignee
(2.1) A certificate of registration of an assignment of copyright is evidence that the
right recorded on the certificate has been assigned and that the assignee
registered is the owner of that right.
Licensee
(2.2) A certificate of registration of a licence granting an interest in a copyright is
evidence that the interest recorded on the certificate has been granted and that
the licensee registered is the holder of that interest.
Admissibility
(3) A certified copy or certificate appearing to have been issued under this section
is admissible in all courts without proof of the signature or official character of the
person appearing to have signed it.
R.S., 1985, c. C-42, s. 53; 1992, c. 1, s. 49; 1993, c. 15, s. 5; 1997, c. 24, s. 30.
Registration
Register of Copyrights
54 (1) The Minister shall cause to be kept at the Copyright Office a register to be
called the Register of Copyrights in which may be entered
(a) the names or titles of works and of other subject-matter in which copyright
subsists;
(b) the names and addresses of authors, performers, makers of sound
recordings, broadcasters, owners of copyright, assignees of copyright, and
persons to whom an interest in copyright has been granted by licence; and
(c) such other particulars as may be prescribed by regulation.
(2) [Repealed, 1997, c. 24, s. 31]
Single entry sufficient
(3) In the case of an encyclopaedia, newspaper, review, magazine or other
periodical work, or work published in a series of books or parts, it is not necessary
to make a separate entry for each number or part, but a single entry for the whole
work is sufficient.
Indices
(4) There shall also be kept at the Copyright Office such indices of the Register
established under this section as may be prescribed by regulation.
Inspection and extracts
(5) The Register and indices established under this section shall at all reasonable
times be open to inspection, and any person is entitled to make copies of or take
extracts from the Register.
Former registration effective
(6) Any registration made under the Copyright Act, chapter 70 of the Revised
Statutes of Canada, 1906, has the same force and effect as if made under this
Act.
Subsisting copyright
(7) Any work in which copyright, operative in Canada, subsisted immediately
before January 1, 1924 is registrable under this Act.
R.S., 1985, c. C-42, s. 54; 1992, c. 1, s. 50; 1997, c. 24, s. 31.
Copyright in works
55 (1) Application for the registration of a copyright in a work may be made by or
on behalf of the author of the work, the owner of the copyright in the work, an
assignee of the copyright, or a person to whom an interest in the copyright has
been granted by licence.
Application for registration
(2) An application under subsection (1) must be filed with the Copyright Office, be
accompanied by the fee prescribed by or determined under the regulations, and
contain the following information:
(a) the name and address of the owner of the copyright in the work;
(b) a declaration that the applicant is the author of the work, the owner of the
copyright in the work, an assignee of the copyright, or a person to whom an
interest in the copyright has been granted by licence;
(c) the category of the work;
(d) the title of the work;
(e) the name of the author and, if the author is dead, the date of the author’s
death, if known;
(f) in the case of a published work, the date and place of the first publication;
and
(g) any additional information prescribed by regulation.
R.S., 1985, c. C-42, s. 55; 1997, c. 24, s. 32.
Copyright in subject-matter other than works
56 (1) Application for the registration of a copyright in subject-matter other than a
work may be made by or on behalf of the owner of the copyright in the subject-
matter, an assignee of the copyright, or a person to whom an interest in the
copyright has been granted by licence.
Application for registration
(2) An application under subsection (1) must be filed with the Copyright Office, be
accompanied by the fee prescribed by or determined under the regulations, and
contain the following information:
(a) the name and address of the owner of the copyright in the subject-matter;
(b) a declaration that the applicant is the owner of the copyright in the subject-
matter, an assignee of the copyright, or a person to whom an interest in the
copyright has been granted by licence;
(c) whether the subject-matter is a performer’s performance, a sound
recording or a communication signal;
(d) the title, if any, of the subject-matter;
(e) the date of
(i) in the case of a performer’s performance, its first fixation in a sound
recording or, if it is not fixed in a sound recording, its first performance,
(ii) in the case of a sound recording, the first fixation, or
(iii) in the case of a communication signal, its broadcast; and
(f) any additional information prescribed by regulation.
R.S., 1985, c. C-42, s. 56; 1993, c. 15, s. 6; 1997, c. 24, s. 32.
Recovery of damages
56.1 Where a person purports to have the authority to apply for the registration of
a copyright under section 55 or 56 on behalf of another person, any damage
caused by a fraudulent or erroneous assumption of such authority is recoverable
in any court of competent jurisdiction.
1997, c. 24, s. 32.
Registration of assignment or licence
57 (1) The Registrar of Copyrights shall register an assignment of copyright, or a
licence granting an interest in a copyright, on being furnished with
(a) the original instrument or a certified copy of it, or other evidence
satisfactory to the Registrar of the assignment or licence; and
(b) the fee prescribed by or determined under the regulations.
(2) [Repealed, 1992, c. 1, s. 51]
When assignment or licence is void
(3) Any assignment of copyright, or any licence granting an interest in a copyright,
shall be adjudged void against any subsequent assignee or licensee for valuable
consideration without actual notice, unless the prior assignment or licence is
registered in the manner prescribed by this Act before the registering of the
instrument under which the subsequent assignee or licensee claims.
Rectification of Register by the Court
(4) The Federal Court may, on application of the Registrar of Copyrights or of any
interested person, order the rectification of the Register of Copyrights by
(a) the making of any entry wrongly omitted to be made in the Register,
(b) the expunging of any entry wrongly made in or remaining on the Register,
or
(c) the correction of any error or defect in the Register,
and any rectification of the Register under this subsection shall be retroactive
from such date as the Court may order.
R.S., 1985, c. C-42, s. 57; 1992, c. 1, s. 51; 1993, c. 15, s. 7; 1997, c. 24, s. 33.
Execution of instruments
58 (1) Any assignment of a copyright, or any licence granting an interest in a
copyright, may be executed, subscribed or acknowledged at any place in a treaty
country, a Rome Convention country or a WPPT country by the assignor, licensor
or secured or hypothecary debtor, before any notary public, commissioner or
other official, or the judge of any court, who is authorized by law to administer
oaths or certify documents in that place and who also subscribes their signature
and affixes to, or impresses on, the assignment or licence their official seal or the
seal of the court of which they are a judge.
Execution of instruments
(2) Any assignment of copyright, or any licence granting an interest in a copyright,
may be executed, subscribed or acknowledged by the assignor, licensor or
mortgagor, in any other foreign country before any notary public, commissioner or
other official or the judge of any court of the foreign country, who is authorized to
administer oaths or perform notarial acts in that foreign country and whose
authority shall be proved by the certificate of a diplomatic or consular officer of
Canada performing their functions in that foreign country.
Seals to be evidence
(3) The official seal or seal of the court or the certificate of a diplomatic or
consular officer is evidence of the execution of the instrument, and the instrument
with the seal or certificate affixed or attached thereto is admissible as evidence in
any action or proceeding brought under this Act without further proof.
Other testimony
(4) The provisions of subsections (1) and (2) shall be deemed to be permissive
only, and the execution of any assignment of copyright, or any licence granting an
interest in a copyright, may in any case be proved in accordance with the
applicable rules of evidence.
R.S., 1985, c. C-42, s. 58; 1997, c. 24, s. 34; 2012, c. 20, s. 50.
Fees
Fees regulations
59 The Governor in Council may make regulations
(a) prescribing fees, or the manner of determining fees, to be paid for anything
required or authorized to be done in the administration of this Act; and
(b) prescribing the time and manner in which the fees must be paid.
R.S., 1985, c. C-42, s. 59; 1993, c. 15, s. 8.
PART VI
Miscellaneous Provisions
Substituted Right
Subsistence of substituted right
60 (1) Where any person is immediately before January 1, 1924 entitled to any
right in any work that is set out in column I of Schedule I, or to any interest in such
a right, he is, as from that date, entitled to the substituted right set out in column II
of that Schedule, or to the same interest in the substituted right, and to no other
right or interest, and the substituted right shall subsist for the term for which it
would have subsisted if this Act had been in force at the date when the work was
made, and the work had been one entitled to copyright thereunder.
Where author has assigned the right
(2) Where the author of any work in which any right that is set out in column I of
Schedule I subsists on January 1, 1924 has, before that date, assigned the right
or granted any interest therein for the whole term of the right, then at the date
when, but for the passing of this Act, the right would have expired, the substituted
right conferred by this section shall, in the absence of express agreement, pass to
the author of the work, and any interest therein created before January 1, 1924
and then subsisting shall determine, but the person who immediately before the
date at which the right would have expired was the owner of the right or interest is
entitled at his option either
(a) on giving such notice as is hereinafter mentioned, to an assignment of the
right or the grant of a similar interest therein for the remainder of the term of
the right for such consideration as, failing agreement, may be determined by
arbitration, or
(b) without any assignment or grant, to continue to reproduce or perform the
work in like manner as theretofore subject to the payment, if demanded by the
author within three years after the date at which the right would have expired,
of such royalties to the author as, failing agreement, may be determined by
arbitration, or, where the work is incorporated in a collective work and the
owner of the right or interest is the proprietor of that collective work, without
any payment,
and the notice referred to in paragraph (a) must be given not more than one year
or less than six months before the date at which the right would have expired, and
must be sent by registered post to the author, or, if he cannot with reasonable
diligence be found, advertised in the Canada Gazette.
Definition of author
(3) For the purposes of this section, author includes the legal representatives of a
deceased author.
Works made before this Act in force
(4) Subject to this Act, copyright shall not subsist in any work made before
January 1, 1924 otherwise than under and in accordance with the provisions of
this section.
R.S., 1985, c. C-42, s. 60; R.S., 1985, c. 10 (4th Supp.), s. 17(F); 1997, c. 24, s. 52(F).
Clerical Errors
Clerical errors do not invalidate
61 Clerical errors in any instrument of record in the Copyright Office do not
invalidate the instrument, but they may be corrected under the authority of the
Registrar of Copyrights.
R.S., 1985, c. C-42, s. 61; 1992, c. 1, s. 52; 1993, c. 15, s. 10.
Regulations
Regulations
62 (1) The Governor in Council may make regulations
(a) for the purposes of paragraph 30.01(6)(d), respecting measures, which
may vary according to circumstances specified in the regulations;
(b) for the purposes of paragraph 30.02(3)(d), respecting measures, which
may vary according to circumstances specified in the regulations;
(c) prescribing the form of a notice of claimed infringement referred to in
section 41.25 and prescribing the information that must be and that is not
permitted to be contained in it;
(d) prescribing anything that by this Act is to be prescribed by regulation; and
(e) generally for carrying out the purposes and provisions of this Act.
Rights saved
(2) The Governor in Council may make orders for altering, revoking or varying
any order in council made under this Act, but any order made under this section
does not affect prejudicially any rights or interests acquired or accrued at the date
when the order comes into operation, and shall provide for the protection of those
rights and interests.
R.S., 1985, c. C-42, s. 62; 1997, c. 24, s. 37; 2012, c. 20, s. 51; 2018, c. 27, s. 246.
Industrial Designs and Topographies 63 [Repealed, 1997, c. 24, s. 38]
Interpretation
64 (1) In this section and section 64.1,
article means any thing that is made by hand, tool or machine; (objet)
design means features of shape, configuration, pattern or ornament and any
combination of those features that, in a finished article, appeal to and are judged
solely by the eye; (dessin)
useful article means an article that has a utilitarian function and includes a
model of any such article; (objet utilitaire)
utilitarian function, in respect of an article, means a function other than merely
serving as a substrate or carrier for artistic or literary matter. (fonction utilitaire)
Non-infringement re certain designs
(2) Where copyright subsists in a design applied to a useful article or in an artistic
work from which the design is derived and, by or under the authority of any
person who owns the copyright in Canada or who owns the copyright elsewhere,
(a) the article is reproduced in a quantity of more than fifty, or
(b) where the article is a plate, engraving or cast, the article is used for
producing more than fifty useful articles,
it shall not thereafter be an infringement of the copyright or the moral rights for
anyone
(c) to reproduce the design of the article or a design not differing substantially
from the design of the article by
(i) making the article, or
(ii) making a drawing or other reproduction in any material form of the
article, or
(d) to do with an article, drawing or reproduction that is made as described in
paragraph (c) anything that the owner of the copyright has the sole right to do
with the design or artistic work in which the copyright subsists.
Exception
(3) Subsection (2) does not apply in respect of the copyright or the moral rights in
an artistic work in so far as the work is used as or for
(a) a graphic or photographic representation that is applied to the face of an
article;
(b) a trademark or a representation thereof or a label;
(c) material that has a woven or knitted pattern or that is suitable for piece
goods or surface coverings or for making wearing apparel;
(d) an architectural work that is a building or a model of a building;
(e) a representation of a real or fictitious being, event or place that is applied
to an article as a feature of shape, configuration, pattern or ornament;
(f) articles that are sold as a set, unless more than fifty sets are made; or
(g) such other work or article as may be prescribed by regulation.
Idem
(4) Subsections (2) and (3) apply only in respect of designs created after the
coming into force of this subsection, and section 64 of this Act and the Industrial
Design Act, as they read immediately before the coming into force of this
subsection, as well as the rules made under them, continue to apply in respect of
designs created before that coming into force.
R.S., 1985, c. C-42, s. 64; R.S., 1985, c. 10 (4th Supp.), s. 11; 1993, c. 44, s. 68; 1997, c. 24, s.
39; 2014, c. 20, s. 366(E).
Non-infringement re useful article features
64.1 (1) The following acts do not constitute an infringement of the copyright or
moral rights in a work:
(a) applying to a useful article features that are dictated solely by a utilitarian
function of the article;
(b) by reference solely to a useful article, making a drawing or other
reproduction in any material form of any features of the article that are dictated
solely by a utilitarian function of the article;
(c) doing with a useful article having only features described in paragraph (a),
or with a drawing or reproduction made as described in paragraph (b),
anything that the owner of the copyright has the sole right to do with the work;
and
(d) using any method or principle of manufacture or construction.
Exception
(2) Nothing in subsection (1) affects
(a) the copyright, or
(b) the moral rights, if any,
in any sound recording, cinematograph film or other contrivance by means of
which a work may be mechanically reproduced or performed.
R.S., 1985, c. 10 (4th Supp.), s. 11; 1997, c. 24, s. 40.
Application of Act to topographies
64.2 (1) This Act does not apply, and shall be deemed never to have applied, to
any topography or to any design, however expressed, that is intended to generate
all or part of a topography.
Computer programs
(2) For greater certainty, the incorporation of a computer program into an
integrated circuit product or the incorporation of a work into such a computer
program may constitute an infringement of the copyright or moral rights in a work.
Definitions
(3) In this section, “topography” and “integrated circuit product” have the same
meaning as in the Integrated Circuit Topography Act.
1990, c. 37, s. 33.
65 [Repealed, 1993, c. 44, s. 69]
PART VII
Copyright Board
Establishment
66 (1) There is established a Board to be known as the Copyright Board,
consisting of not more than five members, including a Chair and a Vice-chair, to
be appointed by the Governor in Council.
Service
(2) The members of the Board shall be appointed to serve either full-time or part-
time.
Chair
(3) The Chair must be a judge, either sitting or retired, of a superior court.
Tenure
(4) Each member of the Board shall hold office during good behaviour for a term
not exceeding five years, but may be removed at any time by the Governor in
Council for cause.
Re-appointment
(5) A member of the Board is eligible to be re-appointed once only.
Prohibition
(6) A member of the Board shall not be employed in the public service within the
meaning of the Federal Public Sector Labour Relations Act during the member’s
term of office.
Members deemed public service employees
(7) A full-time member of the Board, other than the Chair, is deemed to be
employed in
(a) the public service for the purposes of the Public Service Superannuation
Act; and
(b) the federal public administration for the purposes of any regulations made
pursuant to section 9 of the Aeronautics Act.
R.S., 1985, c. C-42, s. 66; R.S., 1985, c. 10 (1st Supp.), s. 1, c. 10 (4th Supp.), s. 12; 2003, c. 22, s.
154(E), 224(E), 225(E); 2017, c. 9, s. 55; 2018, c. 27, s. 290.
Duties of Chair
66.1 (1) The Chair shall direct the work of the Board and apportion its work
among its members.
Absence or incapacity of Chair
(2) If the Chair is absent or incapacitated or if the office of Chair is vacant, the
Vice-chair has all the powers and functions of the Chair during the absence,
incapacity or vacancy.
Duties of Vice-chair
(3) The Vice-chair is the chief executive officer of the Board and has supervision
over and direction of the Board and its staff.
R.S., 1985, c. 10 (4th Supp.), s. 12; 2018, c. 27, s. 291(E).
Remuneration and expenses
66.2 The members of the Board shall be paid such remuneration as may be fixed
by the Governor in Council and are entitled to be paid reasonable travel and living
expenses incurred by them in the course of their duties under this Act while
absent from their ordinary place of residence.
R.S., 1985, c. 10 (4th Supp.), s. 12.
Conflict of interest prohibited
66.3 (1) A member of the Board shall not, directly or indirectly, engage in any
activity, have any interest in a business or accept or engage in any office or
employment that is inconsistent with the member’s duties.
Termination of conflict of interest
(2) Where a member of the Board becomes aware that he is in a conflict of
interest contrary to subsection (1), the member shall, within one hundred and
twenty days, terminate the conflict or resign.
R.S., 1985, c. 10 (4th Supp.), s. 12.
Staff
66.4 (1) Such officers and employees as are necessary for the proper conduct of
the work of the Board shall be appointed in accordance with the Public Service
Employment Act.
Idem
(2) The officers and employees referred to in subsection (1) shall be deemed to
be employed in the public service for the purposes of the Public Service
Superannuation Act.
Technical assistance
(3) The Board may engage on a temporary basis the services of persons having
technical or specialized knowledge to advise and assist in the performance of its
duties and the Board may, in accordance with Treasury Board directives, fix and
pay the remuneration and expenses of those persons.
R.S., 1985, c. 10 (4th Supp.), s. 12; 2003, c. 22, s. 225(E).
Concluding matters after membership expires
66.5 (1) A member of the Board whose term expires may conclude the matters
that the member has begun to consider.
Decisions
(2) Matters before the Board shall be decided by a majority of the members of the
Board and the presiding member shall have a second vote in the case of a tie.
R.S., 1985, c. 10 (4th Supp.), s. 12.
Fair and equitable
66.501 The Board shall fix royalty and levy rates and any related terms and
conditions under this Act that are fair and equitable, in consideration of
(a) what would have been agreed upon between a willing buyer and a willing
seller acting in a competitive market with all relevant information, at arm’s
length and free of external constraints;
(b) the public interest;
(c) any regulation made under subsection 66.91(1); and
(d) any other criterion that the Board considers appropriate.
2018, c. 27, s. 292.
Informal and expeditious
66.502 All matters before the Board shall be dealt with as informally and
expeditiously as the circumstances and considerations of fairness permit but, in
any case, within any period or no later than any day provided for under this Act.
2018, c. 27, s. 292.
For greater certainty
66.503 For greater certainty, any person or entity may authorize any other person
or entity to act on their behalf in any matter before the Board.
2018, c. 27, s. 292.
Case manager
66.504 (1) The Chair may assign a member, officer or employee of the Board or a
person engaged under subsection 66.4(3) to act as a case manager of a matter
before the Board.
Powers
(2) The case manager may give any directions or make any orders with respect to
the case management of the matter, but is not permitted to make a direction or
order that is inconsistent with
(a) this Act;
(b) regulations made under subsection 66.6(1), unless authorized to do so
under regulations made under paragraph 66.6(1.1)(b); or
(c) regulations made under paragraph 66.91(2)(a) to (c), unless authorized to
do so under regulations made under paragraph 66.91(2)(d).
Deemed direction or order of Board
(3) A direction given, or an order made, by a case manager is deemed to be a
direction or order of the Board, including for the purposes of paragraph 28(1)(j) of
the Federal Courts Act.
Delegation
(4) The Chair may delegate his or her power under subsection (1) to the Vice-
chair.
2018, c. 27, s. 292.
Interim decisions
66.51 The Board may, on application, make an interim decision.
R.S., 1985, c. 10 (4th Supp.), s. 12.
Variation of decisions
66.52 A decision of the Board respecting royalties or their related terms and
conditions that is made under subsection 70(1), 71(2), 76.1(1) or 83(8) may, on
application, be varied by the Board if, in its opinion, there has been a material
change in circumstances since the decision was made.
R.S., 1985, c. 10 (4th Supp.), s. 12; 1988, c. 65, s. 64; 1997, c. 24, s. 42; 2018, c. 27, s. 293.
Regulations
66.6 (1) The Board may, with the approval of the Governor in Council, make
regulations governing
(a) the practice and procedure in respect of the Board’s hearings, including
the number of members of the Board that constitutes a quorum;
(b) the time and manner in which applications and notices must be made or
given;
(c) the establishment of forms for the making or giving of applications and
notices; and
(d) the carrying out of the work of the Board, the management of its internal
affairs and the duties of its officers and employees.
Case management
(1.1) The Board may, with the approval of the Governor in Council, make
regulations governing the case management of matters before the Board,
including regulations
(a) governing the directions a case manager may give and the orders they
may make; and
(b) authorizing a case manager to give a direction or make an order that
adapts, restricts or excludes the application of any provision of regulations
made under subsection (1) to a matter or any step in a matter.
Publication of proposed regulations
(2) A copy of each regulation that the Board proposes to make under subsection
(1) or (1.1) shall be published in the Canada Gazette at least 60 days before the
regulation’s proposed effective date, and a reasonable opportunity shall be given
to interested persons to make representations with respect to the regulation.
Exception
(3) No proposed regulation that has been published pursuant to subsection (2)
need again be published under that subsection, whether or not it has been altered
as a result of representations made with respect thereto.
R.S., 1985, c. 10 (4th Supp.), s. 12; 2018, c. 27, s. 294.
General powers, etc.
66.7 (1) The Board has, with respect to the attendance, swearing and
examination of witnesses, the production and inspection of documents, the
enforcement of its decisions and other matters necessary or proper for the due
exercise of its jurisdiction, all such powers, rights and privileges as are vested in a
superior court of record.
Enforcement of decisions
(2) Any decision of the Board may, for the purposes of its enforcement, be made
an order of the Federal Court or of any superior court and is enforceable in the
same manner as an order thereof.
Procedure
(3) To make a decision of the Board an order of a court, the usual practice and
procedure of the court in such matters may be followed or a certified copy of the
decision may be filed with the registrar of the court and thereupon the decision
becomes an order of the court.
Effect of variation of decision
(4) Where a decision of the Board that has been made an order of a court is
varied by a subsequent decision of the Board, the order of the court shall be
deemed to have been varied accordingly and the subsequent decision may, in the
same manner, be made an order of the court.
R.S., 1985, c. 10 (4th Supp.), s. 12; 2002, c. 8, s. 131(F).
Distribution, publication of notices
66.71 Independently of any other provision of this Act relating to the distribution or
publication of information or documents by the Board, the Board may at any time
cause to be distributed or published, in any manner and on any terms and
conditions that it sees fit, any notice that it sees fit to be distributed or published.
1997, c. 24, s. 43.
Studies
66.8 The Board shall conduct such studies with respect to the exercise of its
powers as are requested by the Minister.
R.S., 1985, c. 10 (4th Supp.), s. 12.
Report
66.9 (1) The Board shall, not later than August 31 in each year, submit to the
Governor in Council through the Minister an annual report on the Board’s
activities for the preceding year describing briefly the applications made to the
Board, the Board’s decisions and any other matter that the Board considers
relevant.
Tabling
(2) The Minister shall cause a copy of each annual report to be laid before each
House of Parliament on any of the first fifteen days on which that House is sitting
after the Minister receives the report.
R.S., 1985, c. 10 (4th Supp.), s. 12.
Regulations
66.91 (1) The Governor in Council may make regulations issuing policy directions
to the Board and establishing general criteria to be applied by the Board or to
which the Board must have regard
(a) in establishing fair and equitable royalties to be paid pursuant to this Act;
and
(b) in rendering its decisions in any matter within its jurisdiction.
Regulations regarding time
(2) The Governor in Council may make regulations
(a) establishing the day by which, or the period within which, a matter before
the Board — and any procedural step in the matter, whether set out in a
provision of this Act or not — must be completed;
(b) establishing the minimum length of the effective period for the purposes of
subsections 68.1(2) and 83(4);
(c) establishing a day for the purposes of paragraph 73.4(b); and
(d) authorizing the Board or a case manager to give a direction or make an
order that adapts, restricts or excludes the application of any provision of
regulations made under any of paragraphs (a) to (c) to a matter or any step in
a matter.
Inconsistency or conflict
(3) Regulations made under subsection (2) prevail over regulations made under
subsection 66.6(1) or (1.1) to the extent of an inconsistency or conflict between
them.
1997, c. 24, s. 44; 2018, c. 27, s. 295.
PART VII.1
Collective Administration of Copyright
Collective Societies
Filing of proposed tariffs
67 (1) A collective society may file a proposed tariff with the Board for the
purpose of establishing royalties with respect to rights the collective society
administers under section 3, 15, 18, 19 or 21.
Mandatory filing for certain royalties
(2) However, a collective society shall file a proposed tariff with the Board for the
purpose of establishing royalties referred to in subsection 29.7(2) or (3) or
paragraph 31(2)(d).
Entering into agreements
(3) A collective society may enter into agreements for the purpose of establishing
royalties with respect to rights the collective society administers under section 3,
15, 18, 19 or 21, other than royalties referred to in subsection 29.7(2) or (3) or
paragraph 31(2)(d).
R.S., 1985, c. C-42, s. 67; R.S., 1985, c. 10 (1st Supp.), s. 1, c. 10 (4th Supp.), s. 12; 1993, c. 23, s.
3; 1997, c. 24, s. 45; 2018, c. 27, s. 296.
Designation of collective society — paragraph 19(2)(a)
67.1 On application by a collective society, the Board may designate the
collective society as the sole collective society authorized to collect all royalties
referred to in paragraph 19(2)(a) with respect to a sound recording of a musical
work.
R.S., 1985, c. 10 (4th Supp.), s. 12; 1997, c. 24, s. 45; 2001, c. 34, s. 35(E); 2012, c. 20, s. 52;
2018, c. 27, s. 296.
Requests regarding repertoire
67.2 A collective society shall answer, within a reasonable time, all reasonable
requests from any person for information about its repertoire of works,
performer’s performances, sound recordings or communication signals.
R.S., 1985, c. 10 (4th Supp.), s. 12; 1993, c. 23, s. 4, c. 44, ss. 71, 79; 1997, c. 24, s. 45; 2018, c.
27, s. 296.
67.3 [Repealed, 1997, c. 24, s. 45]
Tariffs
Proposed Tariffs
Filing
68 A proposed tariff must be filed no later than October 15 of the second calendar
year before the calendar year in which the proposed tariff is to take effect or, if a
day is established under regulations made under subsection 66.91(2), no later
than that day.
R.S., 1985, c. C-42, s. 68; R.S., 1985, c. 10 (4th Supp.), s. 13; 1993, c. 23, s. 5; 1997, c. 24, s.
45; 2012, c. 20, s. 53; 2018, c. 27, s. 296.
Form and content
68.1 (1) A proposed tariff must be filed in both official languages and include
(a) the acts to which the tariff is to apply;
(b) the proposed royalty rates and any related terms and conditions; and
(c) the effective period of the proposed tariff.
Minimum effective period
(2) A proposed tariff’s effective period must be at least three calendar years or, if
a minimum period is established under regulations made under subsection 66.91
(2), at least that minimum period.
1997, c. 24, s. 45; 2018, c. 27, s. 296.
Publication and notification
68.2 The Board, in the manner that it sees fit,
(a) shall publish the proposed tariff as well as a notice that any objection to the
proposed tariff must be filed within the period set out in subsection 68.3(2);
and
(b) may distribute a notice — or cause it to be distributed or published, on any
terms and conditions that the Board sees fit — of the publication of the tariff
and of the notice referred to in paragraph (a) to any person affected by the
proposed tariff.
1997, c. 24, s. 45; 2012, c. 20, s. 54; 2018, c. 27, s. 296.
Filing of objection
68.3 (1) An objection to a proposed tariff may be filed with the Board by
(a) an educational institution, if the proposed tariff is filed for the purpose of
collecting royalties referred to in subsection 29.7(2) or (3);
(b) a retransmitter, as defined in subsection 31(1), if the proposed tariff is filed
for the purpose of collecting royalties referred to in paragraph 31(2)(d); or
(c) any user, in any other case.
Time for filing objection
(2) An objection shall be filed no later than the 30th day after the day on which the
Board published the proposed tariff under paragraph 68.2(a) or, if a day is
established under the regulations made under subsection 66.91(2), no later than
that day.
Copy to collective society
(3) The Board shall provide a copy of the filed objection to the collective society.
2018, c. 27, s. 296.
Reply to objection
68.4 (1) The collective society may file a reply to an objection with the Board.
Copy to be provided
(2) The Board shall provide a copy of the filed reply to the person or entity that
filed the objection.
2018, c. 27, s. 296.
Withdrawal or Amendment of Proposed Tariff
Request to withdraw or amend
69 A collective society may, before a proposed tariff filed by it has been approved
by the Board, make an application to the Board requesting that
(a) the proposed tariff be withdrawn; or
(b) a reference to an act set out in the proposed tariff be excluded from the
approved tariff for all of the proposed effective period or, despite subsection
68.1(2), for a portion of that period.
R.S., 1985, c. C-42, s. 69; R.S., 1985, c. 10 (4th Supp.), s. 14; 1993, c. 44, s. 73; 1997, c. 24, s. 52
(F); 2018, c. 27, s. 296.
Approval by Board
69.1 (1) The Board shall approve an application made under section 69 if it is
satisfied that
(a) the collective society has provided sufficient public notice of its intention to
make the application;
(b) every person who, in respect of the proposed effective period, has paid
royalties that would not be payable if the application were approved has
(i) consented to the application,
(ii) received a refund of the royalties, or
(iii) entered into an agreement under subsection 67(3) that covers the act,
repertoire or proposed effective period that is the subject of the application;
and
(c) in the case of an application made under paragraph 69(b) with respect to a
portion of the proposed effective period, the application is not made for the
purpose of improperly circumventing the required minimum effective period.
For greater certainty
(2) For greater certainty, the approval of an application made under section 69
does not preclude the collective society from filing, in accordance with this Act, a
proposed tariff that deals in whole or in part with the act, repertoire or proposed
effective period that was the subject of the application.
2018, c. 27, s. 296.
Approval of Tariffs
Approval
70 (1) The Board shall — within the period, if any, that is established under
regulations made under subsection 66.91(2) — approve the proposed tariff after
making any alterations to the royalty rates and the related terms and conditions,
or fixing any new related terms and conditions, that the Board considers
appropriate.
Factors — performances of musical works and sound recordings
(2) In approving a proposed tariff for the performance in public or the
communication to the public by telecommunication of performer’s performances
of musical works, or of sound recordings embodying such performer’s
performances, the Board shall ensure that
(a) the tariff applies in respect of performer’s performances and sound
recordings only in the situations referred to in the provisions of section 20
other than subsections 20(3) and (4);
(b) the tariff does not, because of linguistic and content requirements of
Canada’s broadcasting policy set out in section 3 of the Broadcasting Act,
place some users that are subject to that Act at a greater financial
disadvantage than others; and
(c) the payment of royalties by users under section 19 will be made in a single
payment.
Small cable transmission system
(3) The Board shall fix a preferential royalty rate for small cable transmission
systems in approving a tariff for
(a) the performance in public of musical works or dramatico-musical works, of
performer’s performances of such works, or of sound recordings embodying
such works; or
(b) the communication to the public by telecommunication of musical works or
dramatico-musical works, other than as described in subsection 31(2), of
performer’s performances of such works, or of sound recordings embodying
such works.
Small retransmission systems
(4) The Board shall fix a preferential royalty rate for small retransmission systems
in approving a tariff for royalties referred to in paragraph 31(2)(d).
For greater certainty
(5) For greater certainty, the Board may determine, in respect of any tariff that it
approves, the portion of the royalties that is to be paid to each collective society.
No discrimination
(6) For greater certainty, the Board must not discriminate between owners of
copyright on the ground of their nationality or residence in approving a tariff for
royalties referred to in subsection 29.7(2) or (3) or paragraph 31(2)(d).
Regulations
(7) The Governor in Council may make regulations defining “small cable
transmission system” and “small retransmission system” for the purposes of this
section.
R.S., 1985, c. C-42, s. 70; R.S., 1985, c. 10 (4th Supp.), s. 15; 2018, c. 27, s. 296.
Publication of approved tariff
70.1 The Board shall publish the approved tariff in the Canada Gazette and
provide a copy of it, together with the reasons for the Board’s decision, to
(a) the collective society that filed the proposed tariff;
(b) every collective society that is authorized to collect royalties under the
tariff;
(c) every person or entity that filed an objection under section 68.3; and
(d) any other person or entity that, in the Board’s opinion, ought to receive the
copy and reasons.
R.S., 1985, c. 10 (4th Supp.), s. 16; 1997, c. 24, s. 46; 2018, c. 27, s. 296.
70.11 [Repealed, 2018, c. 27, s. 296]
70.12 [Repealed, 2018, c. 27, s. 296]
70.13 [Repealed, 2018, c. 27, s. 296]
70.14 [Repealed, 2018, c. 27, s. 296]
70.15 [Repealed, 2018, c. 27, s. 296]
70.16 [Repealed, 2018, c. 27, s. 296]
70.17 [Repealed, 2018, c. 27, s. 296]
70.18 [Repealed, 2018, c. 27, s. 296]
70.19 [Repealed, 2018, c. 27, s. 296]
70.191 [Repealed, 2018, c. 27, s. 296]
70.2 [Repealed, 2018, c. 27, s. 296]
70.3 [Repealed, 2018, c. 27, s. 296]
70.4 [Repealed, 2018, c. 27, s. 296]
70.5 [Repealed, 2018, c. 27, s. 296]
70.6 [Repealed, 2018, c. 27, s. 296]
70.61 to 70.8 [Repealed, 1997, c. 24, s. 50]
Fixing of Royalty Rates in Individual Cases
Application to fix
71 (1) If a collective society and a user are unable to agree on royalties to be paid
with respect to rights under section 3, 15, 18, 19 or 21, other than royalties
referred to in subsection 29.7(2) or (3) or paragraph 31(2)(d), or are unable to
agree on any related terms and conditions, the collective society or user may,
after giving notice to the other party, apply to the Board to fix the royalty rates or
any related terms and conditions, or both.
Fixing royalties, etc.
(2) The Board may, for a period that the Board may specify, fix the royalty rates or
their related terms and conditions, or both, as the case may be.
Application of subsections 70(2) and (3)
(3) Subsections 70(2) and (3) apply, with any necessary modifications, to the
fixing of royalty rates or terms and conditions, or both, by the Board under
subsection (2).
For greater certainty
(4) For greater certainty, the Board may deny an application made under
subsection (1) or any part of one.
Copy of decision and reasons
(5) The Board shall send a copy of the decision and the reasons for it to the
collective society and the user.
Definition of user
(6) In this section, user means
(a) a user who is not otherwise authorized to do an act referred to in section 3,
15, 18 or 21 in respect of the works, performer’s performances, sound
recordings or communication signals included in a collective society’s
repertoire; or
(b) a user who is required to pay, in respect of sound recordings included in a
collective society’s repertoire, a royalty referred to in section 19 that has not
otherwise been fixed or agreed on.
R.S., 1985, c. C-42, s. 71; 1997, c. 24, s. 50; 2012, c. 20, s. 55; 2018, c. 27, s. 296.
Agreement
71.1 The Board shall not proceed with an application under section 71 in respect
of any matter in issue on which an agreement has been reached, if a notice is
filed with the Board that such an agreement has been reached.
2018, c. 27, s. 296.
Special Rules Related to Royalty Rates
Special royalty rates
72 (1) Subsections (2) and (3) apply despite the tariffs approved by the Board
under section 70, or despite the royalty rates fixed under subsection 71(2), for the
performance in public or the communication to the public by telecommunication of
performer’s performances of musical works or of sound recordings embodying
such performer’s performances.
Wireless transmission systems
(2) For wireless transmission systems, other than community systems and public
transmission systems, broadcasters shall pay
(a) $100 on the first $1.25 million of annual advertising revenues in respect of
each year; and
(b) 100% of the royalties set out in the approved tariff or fixed under
subsection 71(2) for that year on any portion of annual advertising revenues
exceeding $1.25 million.
Community systems
(3) For community systems, broadcasters shall pay royalties of $100 in respect of
each year.
Effect of paying royalties
(4) The payment of the royalties set out in subsection (2) or (3) fully discharges all
liabilities of the system in question in respect of the approved tariffs or the
royalties fixed under subsection 71(2).
Definition of advertising revenues
(5) The Board may, by regulation, define “advertising revenues” for the purposes
of subsection (2).
Regulations
(6) The Governor in Council may make regulations defining “community system”,
“public transmission system” and “wireless transmission system” for the purposes
of this section.
1997, c. 24, s. 50; 1999, c. 31, s. 61; 2002, c. 26, s. 3; 2018, c. 27, s. 296.
Radio performances in places other than theatres
72.1 (1) In respect of public performances by means of any radio receiving set in
any place other than a theatre that is ordinarily and regularly used for
entertainments to which an admission charge is made, no royalties shall be
collectable from the owner or user of the radio receiving set, but the Board shall,
in so far as possible, provide for the collection in advance from radio broadcasting
stations of royalties appropiate to the conditions produced by the provisions of
this subsection and shall fix the amount of the same.
Expenses to be taken into account
(2) In fixing royalties under subsection (1), the Board shall take into account all
expenses of collection and other outlays, if any, saved or savable by, for or on
behalf of the owner of the copyright or performing right concerned or their agents,
in consequence of that subsection.
2018, c. 27, s. 296.
Effects Related to Tariffs and Fixing of Royalty Rates
Permitted Acts and Enforcement
Effect of fixing royalties
73 Without prejudice to any other remedies available to it, the collective society
concerned may collect the royalties specified in an approved tariff or fixed by the
Board under subsection 71(2) for the applicable period and, in default of their
payment, recover them in a court of competent jurisdiction.
1997, c. 24, s. 50; 1999, c. 31, s. 62; 2002, c. 26, s. 4; 2018, c. 27, s. 296.
Order — compliance with terms and conditions
73.1 Without prejudice to any other remedies available to it, the collective society
concerned may apply to a court of competent jurisdiction for an order directing a
person to comply with any terms and conditions that are set out in an approved
tariff or that are fixed by the Board under subsection 71(2).
2018, c. 27, s. 296.
Continuation of rights
73.2 If a proposed tariff’s effective period begins before the proposed tariff is
approved, and immediately after the expiry of the previous tariff, then, from the
start of the effective period of the proposed tariff until the earlier of its approval
and the end of its effective period,
(a) any person authorized under the previous tariff to do an act that is referred
to in section 3, 15, 18 or 21 and that is covered by the proposed tariff may do
so; and
(b) the collective society may collect the royalties in accordance with the
previous tariff.
2018, c. 27, s. 296.
Proceedings barred — tariff
73.3 No proceedings may be brought against a person for the infringement of a
right with respect to an act referred to in section 3, 15, 18 or 21 if
(a) the person has paid or offered to pay the royalties set out in an approved
tariff that apply with respect to that act;
(b) in the case where section 73.2 applies with respect to that act, the person
has paid or offered to pay the royalties referred to in paragraph 73.2(b); or
(c) in the case where no tariff has been approved with respect to that act and
section 73.2 does not apply with respect to it, the person has offered to pay
the royalties that are included in a proposed tariff and that will apply to that act
once the tariff is approved.
2018, c. 27, s. 296.
Approval of request made under section 69
73.4 If the Board approves an application made under section 69, no proceedings
may be brought against a person for the infringement of a right with respect to an
act referred to in section 3, 15, 18 or 21 if
(a) the proposed tariff, if approved, will not apply to the act as a result of the
Board’s approval of the application; and
(b) the act occurs during the effective period set out in the proposed tariff and
before the first anniversary of the day on which the collective society made its
application under section 69 or, if a day has been established by regulations
made under subsection 66.91(2), before that day.
2018, c. 27, s. 296.
Effect of fixing of royalties
73.5 (1) If any royalties or related terms and conditions are fixed under subsection
71(2) in respect of a person, the person may, during the applicable period and on
paying or offering to pay the applicable royalties, do the act referred to in section
3, 15, 18 or 21 with respect to which the royalties or related terms and conditions
are fixed, subject to those related terms and conditions and to the terms and
conditions established by the collective society and the person.
Authority during application
(2) If an application is made under subsection 71(1), a person in respect of whom
royalties or terms and conditions may be fixed may, until the Board’s final
decision on the application, do an act referred to in section 3, 15, 18 or 21 to
which the application applies if the person has offered to pay the applicable
royalties in accordance with any applicable related terms and conditions.
2018, c. 27, s. 296.
Effects of Agreement
No application
74 An approved tariff and any royalty rates and related terms and conditions fixed
by the Board under subsection 71(2), as well as sections 73.2 to 73.5, do not
apply to a person in respect of the matters covered by an agreement referred to
in subsection 67(3) that applies to the person.
1997, c. 24, s. 50; 2018, c. 27, s. 296.
Claim by Copyright Owner — Particular Royalties
Claims by non-members
75 (1) An owner of copyright who does not authorize a collective society to
collect, for that person’s benefit, royalties referred to in paragraph 31(2)(d) is, if
the work is communicated to the public by telecommunication during a period
when an approved tariff that is applicable to that kind of work is effective, entitled
to be paid those royalties by the collective society that is designated by the
Board, of its own motion or on application, subject to the same conditions as
those to which a person who has so authorized that collective society is subject.
Payment to non-members
(2) An owner of copyright who does not authorize a collective society to collect,
for that person’s benefit, royalties referred to in subsection 29.7(2) or (3) is, if
such royalties are payable during a period when an approved tariff that is
applicable to that kind of work or other subject matter is effective, entitled to be
paid those royalties by the collective society that is designated by the Board, of its
own motion or on application, subject to the same conditions as those to which a
person who has so authorized that collective society is subject.
Exclusion of other remedies
(3) The entitlement referred to in subsections (1) and (2) is the only remedy of the
owner of the copyright for the payment of royalties for the communication, making
of the copy or sound recording or performance in public, as the case may be.
Measures
(4) The Board may, for the purposes of this section,
(a) require a collective society to file with the Board information relating to
payments of royalties collected by it to the persons who have authorized it to
collect those royalties; and
(b) by regulation, establish periods of not less than 12 months within which the
entitlements referred to in subsections (1) and (2) must be exercised,
beginning on
(i) the making of the copy, in the case of royalties referred to in subsection
29.7(2),
(ii) the performance in public, in the case of royalties referred to in
subsection 29.7(3), or
(iii) the communication to the public by telecommunication, in the case of
royalties referred to in paragraph 31(2)(d).
1997, c. 24, s. 50; 2018, c. 27, s. 296.
Examination of Agreements
Definition of Commissioner
76 (1) For the purposes of this section and section 76.1, Commissioner means
the Commissioner of Competition appointed under the Competition Act.
Filing agreement with the Board
(2) If a collective society enters into an agreement under subsection 67(3) with a
user, either party may file a copy of the agreement with the Board within 15 days
after it is entered into.
Non-application of section 45 of Competition Act
(3) Section 45 of the Competition Act does not apply in respect of any royalties or
related terms and conditions arising under an agreement filed in accordance with
subsection (2).
Access by Commissioner
(4) The Commissioner may have access to the copy of an agreement filed in
accordance with subsection (2).
Request for examination
(5) If the Commissioner considers that an agreement filed in accordance with
subsection (2) is contrary to the public interest, he or she may, after advising the
parties, request that the Board examine it.
1997, c. 24, s. 50; 2012, c. 20, s. 56; 2018, c. 27, s. 296.
Examination and fixing of royalty
76.1 (1) The Board shall consider a request by the Commissioner to examine an
agreement and may, after giving the Commissioner and the parties to the
agreement an opportunity to present their arguments, alter the royalties and any
related terms and conditions arising under the agreement or fix new related terms
and conditions.
Copy of decision and reasons
(2) The Board shall send a copy of the decision and the reasons for it to the
parties and to the Commissioner.
2018, c. 27, s. 296.
PART VII.2
Certain Applications to Board
Owners Who Cannot be Located
Circumstances in which licence may be issued by Board
77 (1) Where, on application to the Board by a person who wishes to obtain a
licence to use
(a) a published work,
(b) a fixation of a performer’s performance,
(c) a published sound recording, or
(d) a fixation of a communication signal
in which copyright subsists, the Board is satisfied that the applicant has made
reasonable efforts to locate the owner of the copyright and that the owner cannot
be located, the Board may issue to the applicant a licence to do an act mentioned
in section 3, 15, 18 or 21, as the case may be.
Conditions of licence
(2) A licence issued under subsection (1) is non-exclusive and is subject to such
terms and conditions as the Board may establish.
Payment to owner
(3) The owner of a copyright may, not later than five years after the expiration of a
licence issued pursuant to subsection (1) in respect of the copyright, collect the
royalties fixed in the licence or, in default of their payment, commence an action
to recover them in a court of competent jurisdiction.
Regulations
(4) The Copyright Board may make regulations governing the issuance of
licences under subsection (1).
1997, c. 24, s. 50.
Compensation for Acts Done Before Recognition of Copyright or Moral Rights
Board may determine compensation
78 (1) Subject to subsection (2), for the purposes of subsections 32.4(2), 32.5(2),
33(2), 33.1(2) and 33.2(2), the Board may, on application by any of the parties
referred to in one of those provisions, determine the amount of the compensation
referred to in that provision that the Board considers reasonable, having regard to
all the circumstances, including any judgment of a court in an action between the
parties for the enforcement of a right mentioned in subsection 32.4(3) or 32.5(3).
Limitation
(2) The Board shall not
(a) proceed with an application under subsection (1) where a notice is filed
with the Board that an agreement regarding the matters in issue has been
reached; or
(b) where a court action between the parties for enforcement of a right
referred to in subsection 32.4(3) or 32.5(3), as the case may be, has been
commenced, continue with an application under subsection (1) until the court
action is finally concluded.
Interim orders
(3) Where the Board proceeds with an application under subsection (1), it may,
for the purpose of avoiding serious prejudice to any party, make an interim order
requiring a party to refrain from doing any act described in the order until the
determination of compensation is made under subsection (1).
1997, c. 24, s. 50; 2012, c. 20, s. 57.
PART VIII
Private Copying
Interpretation
Definitions
79 In this Part,
audio recording medium means a recording medium, regardless of its material
form, onto which a sound recording may be reproduced and that is of a kind
ordinarily used by individual consumers for that purpose, excluding any
prescribed kind of recording medium; (support audio)
blank audio recording medium means
(a) an audio recording medium onto which no sounds have ever been fixed,
and
(b) any other prescribed audio recording medium; (support audio vierge)
collecting body means the collective society, or other society, association or
corporation, that is designated as the collecting body under subsection 83(8);
(organisme de perception)
eligible author means an author of a musical work, whether created before or
after the coming into force of this Part, that is embodied in a sound recording,
whether made before or after the coming into force of this Part, if copyright
subsists in Canada in that musical work; (auteur admissible)
eligible maker means a maker of a sound recording that embodies a musical
work, whether the first fixation of the sound recording occurred before or after the
coming into force of this Part, if
(a) both the following two conditions are met:
(i) the maker, at the date of that first fixation, if a corporation, had its
headquarters in Canada or, if a natural person, was a Canadian citizen or
permanent resident within the meaning of subsection 2(1) of the
Immigration and Refugee Protection Act, and
(ii) copyright subsists in Canada in the sound recording, or
(b) the maker, at the date of that first fixation, if a corporation, had its
headquarters in a country referred to in a statement published under section
85 or, if a natural person, was a citizen, subject or permanent resident of such
a country; (producteur admissible)
eligible performer means the performer of a performer’s performance of a
musical work, whether it took place before or after the coming into force of this
Part, if the performer’s performance is embodied in a sound recording and
(a) both the following two conditions are met:
(i) the performer was, at the date of the first fixation of the sound recording,
a Canadian citizen or permanent resident within the meaning of subsection
2(1) of the Immigration and Refugee Protection Act, and
(ii) copyright subsists in Canada in the performer’s performance, or
(b) the performer was, at the date of the first fixation of the sound recording, a
citizen, subject or permanent resident of a country referred to in a statement
published under section 85; (artiste-interprète admissible)
prescribed means prescribed by regulations made under this Part. (Version
anglaise seulement)
1997, c. 24, s. 50; 2001, c. 27, s. 240.
Copying for Private Use
Where no infringement of copyright
80 (1) Subject to subsection (2), the act of reproducing all or any substantial part
of
(a) a musical work embodied in a sound recording,
(b) a performer’s performance of a musical work embodied in a sound
recording, or
(c) a sound recording in which a musical work, or a performer’s performance
of a musical work, is embodied
onto an audio recording medium for the private use of the person who makes the
copy does not constitute an infringement of the copyright in the musical work, the
performer’s performance or the sound recording.
Limitation
(2) Subsection (1) does not apply if the act described in that subsection is done
for the purpose of doing any of the following in relation to any of the things
referred to in paragraphs (1)(a) to (c):
(a) selling or renting out, or by way of trade exposing or offering for sale or
rental;
(b) distributing, whether or not for the purpose of trade;
(c) communicating to the public by telecommunication; or
(d) performing, or causing to be performed, in public.
1997, c. 24, s. 50.
Right of Remuneration
Right of remuneration
81 (1) Subject to and in accordance with this Part, eligible authors, eligible
performers and eligible makers have a right to receive remuneration from
manufacturers and importers of blank audio recording media in respect of the
reproduction for private use of
(a) a musical work embodied in a sound recording;
(b) a performer’s performance of a musical work embodied in a sound
recording; or
(c) a sound recording in which a musical work, or a performer’s performance
of a musical work, is embodied.
Assignment of rights
(2) Subsections 13(4) to (7) apply, with such modifications as the circumstances
require, in respect of the rights conferred by subsection (1) on eligible authors,
performers and makers.
1997, c. 24, s. 50.
Levy on Blank Audio Recording Media
Liability to pay levy
82 (1) Every person who, for the purpose of trade, manufactures a blank audio
recording medium in Canada or imports a blank audio recording medium into
Canada
(a) is liable, subject to subsection (2) and section 86, to pay a levy to the
collecting body on selling or otherwise disposing of those blank audio
recording media in Canada; and
(b) shall, in accordance with subsection 83(8), keep statements of account of
the activities referred to in paragraph (a), as well as of exports of those blank
audio recording media, and shall furnish those statements to the collecting
body.
No levy for exports
(2) No levy is payable where it is a term of the sale or other disposition of the
blank audio recording medium that the medium is to be exported from Canada,
and it is exported from Canada.
1997, c. 24, s. 50.
Filing of proposed tariffs
83 (1) Subject to subsection (14), each collective society may file with the Board a
proposed tariff for the benefit of those eligible authors, eligible performers and
eligible makers who, by assignment, grant of licence, appointment of the society
as their agent or otherwise, authorize it to act on their behalf for that purpose, but
no person other than a collective society may file any such tariff.
Filing of proposed tariff
(2) A proposed tariff must be filed no later than October 15 of the second
calendar year before the calendar year in which the proposed tariff is to take
effect or, if a day is established under regulations made under subsection 66.91
(2), no later than that day.
Form and content
(3) A proposed tariff must be filed in both official languages and include
(a) the proposed levy rates and any related terms and conditions; and
(b) the effective period of the proposed tariff.
It may also include a suggestion as to whom the Board should designate under
paragraph (8)(b).
Minimum effective period
(4) A proposed tariff’s effective period must be at least three calendar years or, if
a minimum period is established under regulations made under subsection 66.91
(2), at least that minimum period.
Publication
(5) The Board, in the manner that it sees fit, shall publish the proposed tariff and a
notice that any person or entity who files an objection must do so no later than the
30th day after the day on which the Board made the proposed tariff public or, if a
day is established under regulations made under subsection 66.91(2), no later
than that day.
Copy of objection
(6) The Board shall provide a copy of the filed objection to each collective society
concerned.
Reply
(7) Each collective society concerned may file a reply to an objection with the
Board.
Copy to objector
(7.1) The Board shall provide a copy of the filed reply to the person or entity that
filed the objection.
Approval
(8) The Board shall, within the period that is established under regulations made
under subsection 66.91(2),
(a) approve a proposed tariff, after making any alterations to the levy rates
and the related terms and conditions, or fixing any new related terms and
conditions, that the Board considers appropriate; and
(b) subject to subsection (8.2), designate as the collecting body the collective
society or other society, association or corporation that, in the Board’s opinion,
will best fulfil the objects of sections 82, 84 and 86.
Terms and conditions
(8.1) The related terms and conditions may include terms and conditions such as
the form, content and frequency of the statements of account referred to in
subsection 82(1), measures for the protection of confidential information
contained in those statements, and the times at which the levies are payable.
Designation
(8.2) The Board is not obligated to designate a collecting body under paragraph
(8)(b) if it has previously done so, and a designation under that paragraph
remains in effect until the Board, under a proposed tariff or on a separate
application, makes another designation.
Publication of approved tariffs
(9) The Board shall publish the approved tariff in the Canada Gazette and provide
a copy of it, together with the reasons for the Board’s decision, to
(a) the collecting body;
(b) each collective society that filed a proposed tariff;
(c) every person or entity that filed an objection under subsection (5); and
(d) any other person or entity that, in the Board’s opinion, ought to receive the
copy and reasons.
Continuation of rights
(10) If a proposed tariff’s effective period begins before the proposed tariff is
approved and that effective period begins immediately after the expiry of the
previous tariff, then — from the start of the effective period of the proposed tariff
until the earlier of its approval and the end of its effective period — the collecting
body may collect the levies in accordance with the previous tariff.
Authors, etc., not represented by collective society
(11) An eligible author, eligible performer or eligible maker who does not
authorize a collective society to file a proposed tariff under subsection (1) is
entitled, in relation to
(a) a musical work,
(b) a performer’s performance of a musical work, or
(c) a sound recording in which a musical work, or a performer’s performance
of a musical work, is embodied,
as the case may be, to be paid by the collective society that is designated by the
Board, of the Board’s own motion or on application, the remuneration referred to
in section 81 if such remuneration is payable during a period when an approved
tariff that is applicable to that kind of work, performer’s performance or sound
recording is effective, subject to the same conditions as those to which a person
who has so authorized that collective society is subject.
Exclusion of other remedies
(12) The entitlement referred to in subsection (11) is the only remedy of the
eligible author, eligible performer or eligible maker referred to in that subsection in
respect of the reproducing of sound recordings for private use.
Powers of Board
(13) The Board may, for the purposes of subsections (11) and (12),
(a) require a collective society to file with the Board information relating to
payments of moneys received by the society pursuant to section 84 to the
persons who have authorized it to file a tariff under subsection (1); and
(b) by regulation, establish the periods, which shall not be less than twelve
months, beginning when the applicable approved tariff ceases to be effective,
within which the entitlement referred to in subsection (11) must be exercised.
Single proposed tariff
(14) Where all the collective societies that intend to file a proposed tariff authorize
a particular person or body to file a single proposed tariff on their behalf, that
person or body may do so, and in that case this section applies, with such
modifications as the circumstances require, in respect of that proposed tariff.
1997, c. 24, s. 50; 2018, c. 27, s. 297.
Distribution of Levies Paid
Distribution by collecting body
84 As soon as practicable after receiving the levies paid to it, the collecting body
shall distribute the levies to the collective societies representing eligible authors,
eligible performers and eligible makers, in the proportions fixed by the Board.
1997, c. 24, s. 50.
Reciprocity
85 (1) Where the Minister is of the opinion that another country grants or has
undertaken to grant to performers and makers of sound recordings that are
Canadian citizens or permanent residents within the meaning of subsection 2(1)
of the Immigration and Refugee Protection Act or, if corporations, have their
headquarters in Canada, as the case may be, whether by treaty, convention,
agreement or law, benefits substantially equivalent to those conferred by this
Part, the Minister may, by a statement published in the Canada Gazette,
(a) grant the benefits conferred by this Part to performers or makers of sound
recordings that are citizens, subjects or permanent residents of or, if
corporations, have their headquarters in that country; and
(b) declare that that country shall, as regards those benefits, be treated as if it
were a country to which this Part extends.
Reciprocity
(2) Where the Minister is of the opinion that another country neither grants nor
has undertaken to grant to performers or makers of sound recordings that are
Canadian citizens or permanent residents within the meaning of subsection 2(1)
of the Immigration and Refugee Protection Act or, if corporations, have their
headquarters in Canada, as the case may be, whether by treaty, convention,
agreement or law, benefits substantially equivalent to those conferred by this
Part, the Minister may, by a statement published in the Canada Gazette,
(a) grant the benefits conferred by this Part to performers or makers of sound
recordings that are citizens, subjects or permanent residents of or, if
corporations, have their headquarters in that country, as the case may be, to
the extent that that country grants those benefits to performers or makers of
sound recordings that are Canadian citizens or permanent residents within the
meaning of subsection 2(1) of the Immigration and Refugee Protection Act or,
if corporations, have their headquarters in Canada; and
(b) declare that that country shall, as regards those benefits, be treated as if it
were a country to which this Part extends.
Application of Act
(3) Any provision of this Act that the Minister specifies in a statement referred to
in subsection (1) or (2)
(a) applies in respect of performers or makers of sound recordings covered by
that statement, as if they were citizens of or, if corporations, had their
headquarters in Canada; and
(b) applies in respect of a country covered by that statement, as if that country
were Canada.
Application of Act
(4) Subject to any exceptions that the Minister may specify in a statement referred
to in subsection (1) or (2), the other provisions of this Act also apply in the way
described in subsection (3).
1997, c. 24, s. 50; 2001, c. 27, s. 241.
Exemption from Levy
Where no levy payable
86 (1) No levy is payable under this Part where the manufacturer or importer of a
blank audio recording medium sells or otherwise disposes of it to a society,
association or corporation that represents persons with a perceptual disability.
Refunds
(2) Where a society, association or corporation referred to in subsection (1)
(a) purchases a blank audio recording medium in Canada from a person other
than the manufacturer or importer, and
(b) provides the collecting body with proof of that purchase, on or before June
30 in the calendar year following the calendar year in which the purchase was
made,
the collecting body is liable to pay forthwith to the society, association or
corporation an amount equal to the amount of the levy paid in respect of the blank
audio recording medium purchased.
If registration system exists
(3) If regulations made under paragraph 87(a) provide for the registration of
societies, associations or corporations that represent persons with a perceptual
disability, subsections (1) and (2) shall be read as referring to societies,
associations or corporations that are so registered.
1997, c. 24, s. 50.
Regulations
Regulations
87 The Governor in Council may make regulations
(a) respecting the exemptions and refunds provided for in section 86,
including, without limiting the generality of the foregoing,
(i) regulations respecting procedures governing those exemptions and
refunds,
(ii) regulations respecting applications for those exemptions and refunds,
and
(iii) regulations for the registration of societies, associations or
corporations that represent persons with a perceptual disability;
(b) prescribing anything that by this Part is to be prescribed; and
(c) generally for carrying out the purposes and provisions of this Part.
1997, c. 24, s. 50.
Civil Remedies
Right of recovery
88 (1) Without prejudice to any other remedies available to it, the collecting body
may, for the period specified in an approved tariff, collect the levies due to it
under the tariff and, in default of their payment, recover them in a court of
competent jurisdiction.
Failure to pay royalties
(2) The court may order a person who fails to pay any levy due under this Part to
pay an amount not exceeding five times the amount of the levy to the collecting
body. The collecting body must distribute the payment in the manner set out in
section 84.
Order directing compliance
(3) Where any obligation imposed by this Part is not complied with, the collecting
body may, in addition to any other remedy available, apply to a court of
competent jurisdiction for an order directing compliance with that obligation.
Factors to consider
(4) Before making an order under subsection (2), the court must take into account
(a) whether the person who failed to pay the levy acted in good faith or bad
faith;
(b) the conduct of the parties before and during the proceedings; and
(c) the need to deter persons from failing to pay levies.
1997, c. 24, s. 50.
PART IX
General Provisions
No copyright, etc., except by statute
89 No person is entitled to copyright otherwise than under and in accordance with
this Act or any other Act of Parliament, but nothing in this section shall be
construed as abrogating any right or jurisdiction in respect of a breach of trust or
confidence.
1997, c. 24, s. 50.
Interpretation
90 No provision of this Act relating to
(a) copyright in performer’s performances, sound recordings or
communication signals, or
(b) the right of performers or makers to remuneration
shall be construed as prejudicing any rights conferred by Part I or, in and of itself,
as prejudicing the amount of royalties that the Board may fix in respect of those
rights.
1997, c. 24, s. 50.
Adherence to Berne and Rome Conventions
91 The Governor in Council shall take such measures as are necessary to secure
the adherence of Canada to
(a) the Convention for the Protection of Literary and Artistic Works concluded
at Berne on September 9, 1886, as revised by the Paris Act of 1971; and
(b) the International Convention for the Protection of Performers, Producers of
Phonograms and Broadcasting Organisations, done at Rome on October 26,
1961.
1997, c. 24, s. 50.
Review of Act
92 Five years after the day on which this section comes into force and at the end
of each subsequent period of five years, a committee of the Senate, of the House
of Commons or of both Houses of Parliament is to be designated or established
for the purpose of reviewing this Act.
1997, c. 24, s. 50; 2012, c. 20, s. 58.
SCHEDULE I
(Section 60)
Existing Rights
Column I Column II
Existing Right Substituted Right
Works other than Dramatic and Musical Works
Copyright Copyright as defined by this Act .
Musical and Dramatic Works
Both copyright and
performing right
Copyright as defined by this Act.
Copyright, but not
performing right
Copyright as defined by this Act, except the sole right to perform the work
or any substantial part thereof in public.
Performing right, but not
copyright
The sole right to perform the work in public, but none of the other rights
comprised in copyright as defined by this Act.
In the case of an essay, article or portion forming part of and first published in a review, magazine or
other periodical or work of a like nature, the right shall be subject to any right of publishing the essay,
article or portion in a separate form to which the author is entitled on January 1, 1924 or would if this
Act had not been passed have become entitled under section 18 of An Act to amend the Law of
Copyright, being chapter 45 of the Statutes of the United Kingdom, 1842.
For the purposes of this Schedule the following expressions, where used in
1
1
column I thereof, have the following meanings:
Copyright in the case of a work that according to the law in force immediately
before January 1, 1924 has not been published before that date and statutory
copyright wherein depends on publication, includes the right at common law, if
any, to restrain publication or other dealing with the work;
Performing right, in the case of a work that has not been performed in public
before January 1, 1924, includes the right at common law, if any, to restrain
the performance thereof in public.
R.S., c. C-30, Sch. I; 1976-77, c. 28, s. 10.
SCHEDULE II
[Repealed, 1993, c. 44, s. 74]
SCHEDULE III
[Repealed, 1997, c. 24, s. 51]
RELATED PROVISIONS
— R.S., 1985, c. 10 (4th Supp.), ss. 23 to 26
Application re moral rights
23 (1) The rights referred to in section 14.1 of the Copyright Act, as enacted by section
4, subsist in respect of a work even if the work was created before the coming into
force of section 4.
Restriction
(2) A remedy referred to in subsection 34(1.1) of the Copyright Act, as enacted by
section 8, may only be obtained where the infringement of the moral rights of the author
occurs after the coming into force of section 8.
Idem
(3) Notwithstanding subsection (1) and the repeal by section 3 of subsection 14(4) of
the Copyright Act, the rights referred to in section 14.1 of that Act, as enacted by
section 4, are not enforceable against
(a) a person who, on the coming into force of this section, is the owner of the
copyright in, or holds a licence in relation to, a work, or
(b) a person authorized by a person described in paragraph (a) to do an act
mentioned in section 3 of that Act,
in respect of any thing done during the period for which the person described in
paragraph (a) is the owner or for which the licence is in force, and the rights referred to
in subsection 14(4) of that Act continue to be enforceable against a person described in
paragraph (a) or (b) during that period as if subsection 14(4) of that Act were not
repealed.
— R.S., 1985, c. 10 (4th Supp.), ss. 23 to 26
Application re computer programs
24 Subsection 1(2), the definition computer program in subsection 1(3) and section 5
apply in respect of a computer program that was made prior to the day on which those
provisions come into force but where, by virtue only of subsections 1(2) and (3) and this
section, copyright subsists in a computer program that was made prior to May 27,
1987, nothing done in respect of the computer program before May 27, 1987 shall be
construed to constitute an infringement of the copyright.
— R.S., 1985, c. 10 (4th Supp.), ss. 23 to 26
Making of records, perforated rolls, etc.
25 It shall be deemed not to be an infringement of copyright in any musical, literary or
dramatic work for any person to make within Canada during the six months following
the coming into force of section 7 records, perforated rolls or other contrivances by
means of which sounds may be reproduced and by means of which the work may be
mechanically performed, if the person proves
(a) that before the coming into force of section 7, the person made such
contrivances in respect of that work in accordance with section 29 or 30 of the
Copyright Act and any regulation made under section 33 of that Act, as they read
immediately before the coming into force of section 7; and
(b) that the making would, had it occurred before the coming into force of section 7,
have been deemed not to have been an infringement of copyright by section 29 or
30 of the Copyright Act, as it read immediately before the coming into force of
section 7.
— R.S., 1985, c. 10 (4th Supp.), ss. 23 to 26
Infringements before coming into force
26 Subsection 64(1) and section 64.1 of the Copyright Act, as enacted by section 11,
apply in respect of any alleged infringement of copyright occurring prior to, on or after
the day on which section 11 comes into force.
— 1993, c. 44, ss. 60(2), (3)
Application of amendments to s. 10
(2) Subject to subsection 75(2) of this Act, section 10 of the Copyright Act, as enacted
by subsection (1) of this section, applies to all photographs, whether made before or
after the coming into force of this section.
— 1993, c. 44, ss. 60(2), (3)
Application of amendments to s. 11
(3) Except as provided by section 75 of this Act,
(a) section 11 of the Copyright Act, as enacted by subsection (1) of this section,
applies only in respect of contrivances made after the coming into force of this
section; and
(b) section 11 of the Copyright Act, as it read immediately before the coming into
force of this section, continues to apply in respect of contrivances made before the
coming into force of this section.
— 1993, c. 44, ss. 75 to 77
Application of certain amendments
75 (1) Subject to subsection (2), amendments to the Copyright Act made by this Act
relating to the term of copyright apply in respect of all works, whether made before or
after the coming into force of this section.
Idem
(2) Where the term of the copyright in a work expires before the coming into force of
this section, nothing in this Act shall be construed as extending or reviving that term.
— 1993, c. 44, ss. 75 to 77
Cinematographs
76 (1) Except as provided by subsection (2) of this section, the Copyright Act, as
amended by this Act, applies in respect of all cinematographs, whether made before or
after the coming into force of this section, subject to subsection 75(2) of this Act.
Idem
(2) Section 10 of the Copyright Act, as that section read immediately before the coming
into force of this section and in so far as it governs who is the author of a photograph,
continues to apply in respect of all cinematographs made before the coming into force
of this section that were, before the coming into force of this section, protected as
photographs.
— 1993, c. 44, ss. 75 to 77
Application of section 5
77 Nothing in section 5 of the Copyright Act, as amended by this Act, confers copyright
on works made before the coming into force of this section that did not qualify for
copyright under section 5 of the Copyright Act as it read immediately before the coming
into force of this section.
— 1997, c. 24, s. 18(2)
(2) Section 30 of the Act, as enacted by subsection (1) of this section, does not apply
in respect of collections referred to in section 30 that are published before the coming
into force of section 30. Such collections continue to be governed by paragraph 27(2)
(d) of the Act as it read before the coming into force of section 15 of this Act.
— 1997, c. 24, s. 20(4)
(4) Section 39.1 of the Copyright Act, as enacted by subsection (1) of this section,
applies in respect of
(a) proceedings commenced but not concluded before the coming into force of
subsection (1) of this section; and
(b) proceedings commenced after the coming into force of subsection (1) of this
section.
— 1997, c. 24, ss. 54 to 58.1
54 For greater certainty, all notices published under subsection 5(2) of the Copyright
Act before the coming into force of this section are deemed to have been validly made
and to have had force and effect in accordance with their terms.
— 1997, c. 24, ss. 54 to 58.1
54.1 Section 6 of the Copyright Act applies to a photograph in which copyright subsists
on the date of the coming into force of this section, if the author is
(a) a natural person who is the author of the photograph referred to in subsection 10
(2) of the Copyright Act, as enacted by section 7 of this Act; or
(b) the natural person referred to in subsection 10(1.1) of the Copyright Act, as
enacted by section 7 of this Act.
— 1997, c. 24, ss. 54 to 58.1
55 (1) Part II of the Copyright Act, as enacted by section 14 of this Act, shall be
construed as a replacement for subsections 5(3) to (6) and section 11 of the Copyright
Act as those provisions read immediately before the coming into force of subsection 5
(3) and section 8, respectively, of this Act.
(2) The rights conferred by Part II of the Copyright Act, as enacted by section 14 of this
Act, shall not be construed as diminishing the rights conferred by subsections 5(3) to
(6) and section 11 of the Copyright Act as those provisions read immediately before the
coming into force of subsection 5(3) and section 8, respectively, of this Act, in relation
to records, perforated rolls and other contrivances by means of which sounds may be
mechanically reproduced that were made before the coming into force of subsection 5
(3) and section 8, respectively, of this Act.
(3) Where an assignment of copyright or a grant of any interest therein
(a) was made before the coming into force of Part II of the Copyright Act, as
enacted by section 14 of this Act, and
(b) was made by the maker of a sound recording who was a natural person,
subsections 14(1) and (2) of the Copyright Act continue to apply in respect of that
assignment or grant, with such modifications as the circumstances require, as if the
sound recording was the work referred to in those subsections and the maker of the
sound recording was its author.
— 1997, c. 24, ss. 54 to 58.1
56 Nothing in this Act shall be construed as diminishing the right conferred by section
14.01 of the Copyright Act as that section read immediately before the coming into
force of section 12 of this Act.
— 1997, c. 24, ss. 54 to 58.1
57 For greater certainty, the amendments to the Copyright Act that eliminate references
to “British subject” and “Her Majesty’s Realms and Territories” do not affect any
copyright or moral rights that subsisted in Canada immediately before the coming into
force of those amendments.
— 1997, c. 24, ss. 54 to 58.1
58 Nothing in this Act shall be construed as reviving a copyright that expired before the
coming into force of this section.
— 1997, c. 24, ss. 54 to 58.1
58.1 No agreement concluded before April 25, 1996 that assigns a right or grants an
interest by licence in a right that would be a copyright or a right to remuneration under
this Act shall be construed as assigning or granting any rights conferred for the first
time by this Act, unless the agreement specifically provides for the assignment or grant.
— 1997, c. 24, ss. 62, 63
Coming into force
62 (1) The following provisions come into force or are deemed to have come into force
on June 30, 1996:
(a) the definitions exclusive distributor, educational institution and library, archive or
museum in section 2 of the Copyright Act, as enacted by subsection 1(5) of this Act;
(b) section 2.6 of the Copyright Act, as enacted by section 2 of this Act;
(c) section 27.1 of the Copyright Act, as enacted by section 15 of this Act; and
(d) section 45 of the Copyright Act, as enacted by section 28 of this Act.
(2) Notwithstanding subsection (1), the definition exclusive distributor referred to in
paragraph (1)(a) shall be read as follows during the period beginning on June 30, 1996
and ending on the day that is sixty days after the day on which this Act is assented to:
exclusive distributor means, in relation to a book, a person who has, before
or after the coming into force of this definition, been appointed in writing, by the
owner or exclusive licensee of the copyright in the book in Canada, as
(a) the only distributor of the book in Canada or any part of Canada, or
(b) the only distributor of the book in Canada or any part of Canada in
respect of a particular sector of the market. (distributeur exclusif)
(3) Notwithstanding paragraph (1)(d), paragraph 45(1)(e) of the Copyright Act, as
enacted by section 28 of this Act, shall be read as follows for the period beginning on
June 30, 1996 and ending on the day that is sixty days after the day on which this Act
is assented to:
(e) to import copies, made with the consent of the owner of the copyright in
the country where they were made, of any used books.
— 1997, c. 24, ss. 62, 63
63 (1) No exclusive distributor, within the meaning assigned to that expression by
subsection 62(2) of this Act, copyright owner or exclusive licensee is entitled to a
remedy referred to in the Copyright Act in relation to an infringement referred to in
subsection 27.1(1) or (2) of that Act, as enacted by section 15 of this Act, during the
period beginning on June 30, 1996 and ending on the day on which this Act is assented
to, unless
(a) before the infringement occurred, notice in writing has been given to the person
referred to in subsection 27.1(1) or (2) of that Act, as enacted by section 15 of this
Act, as the case may be, that
(i) there is an exclusive distributor of the book in Canada, and
(ii) section 27.1 of that Act came into force or was deemed to have come into
force on June 30, 1996; and
(b) in the case of an infringement referred to in section 27.1 of that Act, as enacted
by section 15 of this Act, the remedy is only in relation to a book that was imported
during that period and forms part of the inventory of the person referred to in section
27.1 of that Act on the day on which this Act is assented to.
(2) No exclusive distributor, copyright owner or exclusive licensee is entitled to a
remedy referred to in subsection (1) against an educational institution, library, archive
or museum.
(3) For greater certainty, the expiration of the period referred to in subsection 62(2) of
this Act does not affect the right of an exclusive distributor to continue, after the
expiration of that period, legal proceedings validly commenced during that period.
— 2004, c. 11, s. 21(4)
Application
21 (4) Subsection (1) applies in respect of unpublished works deposited in an archive
on or before September 1, 1999 or at any time after that date.
— 2012, c. 20, s. 59
No revival of copyright in photograph
59 (1) The repeal of section 10 of the Copyright Act by section 6 does not have the
effect of reviving copyright in any photograph in which, on the coming into force of that
section 6, copyright had expired.
Cases where corporations were deemed to be authors
(2) In any case in which, immediately before the coming into force of section 6, a
corporation is deemed, by virtue of subsection 10(2) of the Copyright Act as it read
before the coming into force of that section 6, to be the author of a photograph in which
copyright subsists at that time, the copyright in that photograph continues to subsist for
the term determined in accordance with sections 6, 6.1, 6.2, 9, 11.1 or 12 of the
Copyright Act as if its author were the individual who would have been considered the
author of the photograph apart from that subsection 10(2).
Cases where individuals were deemed to be authors
(3) In any case in which an individual is deemed to be the author of a photograph, by
virtue of subsection 10(2) of the Copyright Act as it read before the coming into force of
section 6, the individual continues, after the coming into force of that section 6, to be
the author of that photograph for the purposes of the Copyright Act.
— 2012, c. 20, s. 60
Engraving, photograph or portrait
60 Subsection 13(2) of the Copyright Act, as it read immediately before the coming into
force of section 7, continues to apply with respect to any engraving, photograph or
portrait the plate or original of which was commissioned before the coming into force of
that section 7.
— 2012, c. 20, s. 61
No revival of copyright
61 Subsections 23(1) to (2) of the Copyright Act, as enacted by section 17, do not have
the effect of reviving the copyright, or a right to remuneration, in any performer’s
performance or sound recording in which the copyright or the right to remuneration had
expired on the coming into force of those subsections.
— 2012, c. 20, s. 62
Limitation or prescription period
62 (1) Subsection 43.1(1) of the Copyright Act, as enacted by section 49, applies only
to proceedings with respect to an act or omission that occurred after the coming into
force of that section.
Former limitation or prescription period continued
(2) Subsection 41(1) of the Copyright Act, as it read immediately before the coming into
force of section 47, applies to proceedings with respect to an infringement that
occurred before the coming into force of that section.
— 2015, c. 36, s. 82
No revival of copyright
82 Paragraph 23(1)(b) and subsection 23(1.1) of the Copyright Act, as enacted by
section 81, do not have the effect of reviving the copyright, or a right to remuneration, in
a sound recording or performer’s performance fixed in a sound recording in which the
copyright or the right to remuneration had expired on the coming into force of those
provisions.
— 2018, c. 27, s. 299
Paragraphs 66.501(a) and (b)
299 The Copyright Board is not required to consider the criteria set out in paragraphs
66.501(a) and (b) of the Copyright Act, as enacted by section 292 of this Act, in a
matter in which it fixes royalty rates, levies or any related terms and conditions if the
matter is commenced before the day on which this section comes into force.
— 2018, c. 27, s. 300
Subsections 68.1(2) and 83(4)
300 Neither subsection 68.1(2) nor subsection 83(4) of the Copyright Act, as enacted
by sections 296 and 297 of this Act, respectively, applies with respect to a proposed
tariff filed before the day on which this section comes into force.
— 2018, c. 27, s. 301
Subsection 67.1(4)
301 Subsection 67.1(4) of the Copyright Act, as it read immediately before the day on
which this section comes into force, continues to apply with respect to
(a) an infringement referred to in that subsection that occurred before that day; and
(b) the recovery of royalties to be paid under section 19 of that Act in relation to an
act that occurred before that day.
Date modified:
2019-07-26