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INTELLECTUAL PROPERTY RIGHTS

NATIONAL LEGISLATION - CANADA

Copyright Act - Chapter C-42


PART II

COPYRIGHT IN PERFORMER'S PERFORMANCES,
SOUND RECORDINGS AND COMMUNICATION SIGNALS

PERFORMERS' RIGHTS

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:

  1. if it is not fixed,

    1. to communicate it to the public by telecommunication,

    2. to perform it in public, where it is communicated to the public by telecommunication otherwise than by communication signal, and

    3. to fix it in any material form,

  2. if it is fixed,

    1. to reproduce any fixation that was made without the performer's authorization,

    2. 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

    3. 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

  3. to rent out a sound recording of it, and to authorize any such acts.

Conditions

(2) Subsection (1) applies only if the performer's performance

  1. takes place in Canada or in a Rome Convention country;

  2. is fixed in

    1. a sound recording whose maker, at the time of the first fixation,

      1. if a natural person, was a Canadian citizen or permanent resident of Canada within the meaning of the Immigration Act, or a citizen or permanent resident of a Rome Convention country, or

      2. if a corporation, had its headquarters in Canada or in a Rome Convention country, or

    2. 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

  3. 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.

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.

R.S., 1985, c. C-42, s. 15; 1993, c. 44, s. 61; 1997, c. 24, s. 14.

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

  1. the other party to the agreement or, if that party assigns the agreement, the assignee, and

  2. any other person who

    1. 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

    2. 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 the Immigration 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.

 

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:

  1. to publish it for the first time,

  2. to reproduce it in any material form, and

  3. to rent it out,

and to authorize any such acts.

Conditions for copyright

(2) Subsection (1) applies only if

  1. the maker of the sound recording was a Canadian citizen or permanent resident of Canada within the meaning of the Immigration Act, or a citizen or permanent resident of a Berne Convention country, a Rome Convention country or a country that is a WTO Member, or, if a corporation, had its headquarters in one of the foregoing countries,

    1. at the date of the first fixation, or

    2. if that first fixation was extended over a considerable period, during any substantial part of that period; or

  2. the first publication of the sound recording in such a quantity as to satisfy the reasonable demands of the public occurred in any country referred to in paragraph (a).

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.

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.

 

PROVISIONS APPLICABLE TO BOTH
PERFORMERS AND SOUND RECORDING MAKERS

Right to remuneration

19. (1) Where a sound recording has been published, the performer and maker are entitled, subject to section 20, to be paid equitable remuneration for its performance in public or its communication to the public by telecommunication, except for any retransmission.

Royalties

(2) For the purpose of providing the remuneration mentioned in subsection (1), a person who performs a published sound recording in public or communicates it to the public by telecommunication is liable to pay royalties

  1. in the case of a sound recording of a musical work, to the collective society authorized under Part VII to collect them; or

  2. 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

  1. the performer or performers receive in aggregate fifty per cent; and

  2. 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.

Conditions

20. (1) The right to remuneration conferred by section 19 applies only if

  1. the maker was, at the date of the first fixation, a Canadian citizen or permanent resident of Canada within the meaning of the Immigration Act, or a citizen or permanent resident of a Rome Convention country, or, if a corporation, had its headquarters in one of the foregoing countries; or

  2. all the fixations done for the sound recording occurred in Canada or in a Rome Convention country.

Exception

(2) Notwithstanding subsection (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 section 19, 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 of Canada within the meaning of the Immigration 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 section 19 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

  1. 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

  2. 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.


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:

  1. to fix it,

  2. to reproduce any fixation of it that was made without the broadcaster's consent,

  3. to authorize another broadcaster to retransmit it to the public simultaneously with its broadcast, and

  4. 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

  1. 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

  2. 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) Where the Minister is of the opinion that a country other than a Rome Convention country grants or has undertaken to grant

  1. to performers and to makers of sound recordings, or

  2. to broadcasters

    that are Canadian citizens or permanent residents of Canada within the meaning of the Immigration 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,

  3. grant the benefits conferred by this Part

    1. to performers and to makers of sound recordings, or

    2. 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

  4. 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 a country other than a Rome Convention country neither grants nor has undertaken to grant

  1. to performers, and to makers of sound recordings, or

  2. to broadcasters

    that are Canadian citizens or permanent residents of Canada within the meaning of the Immigration 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,

  3. 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 those benefits to performers, makers of sound recordings or broadcasters that are Canadian citizens or permanent residents of Canada within the meaning of the Immigration Act or, if corporations, have their headquarters in Canada, and

  4. declare that that country shall, as regards those benefits, be treated as i f 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)

  1. 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

  2. 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.

TERM OF RIGHTS

Term of rights

23. (1) Subject to this Act, the rights conferred by sections 15, 18 and 21 terminate fifty years after the end of the calendar year in which

  1. in the case of a performer's performance,

    1. its first fixation in a sound recording, or

    2. its performance, if it is not fixed in a sound recording, occurred;

  2. in the case of a sound recording, the first fixation occurred; or

  3. in the case of a communication signal, it was 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 paragraphs (1)(a) and (b).

Application of subsections (1) and (2)

(3) Subsections (1) and (2) apply whether the fixation, performance or broadcast occurred before or after the coming into force of this Part.

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.

OWNERSHIP OF COPYRIGHT

Ownership of copyright

24. The first owner of the copyright

  1. in a performer's performance, is the performer;

  2. in a sound recording, is the maker; or

  3. 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:

  1. if it is not fixed, to communicate it to the public by telecommunication and to fix it in a sound recording, and

  2. 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

  1. prevent the reproduction of

    1. any fixation of the performer's performance, or

    2. any substantial part of such a fixation,

    where the fixation was made without the performer's consent or the assignee's consent; and

  2. 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.

 

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