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INTELLECTUAL PROPERTY RIGHTS

NATIONAL LEGISLATION - CANADA

Copyright Act - Chapter C-42


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

  1. copyright in performer's performances, sound recordings or communication signals, or

  2. 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

  1. 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

  2. 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. (1) Within five years after the coming into force of this section, the Minister shall cause to be laid before both Houses of Parliament a report on the provisions and operation of this Act, including any recommendations for amendments to this Act.

Reference to parliamentary committee

(2) The report stands referred to the committee of the House of Commons, or of both Houses of Parliament, that is designated or established for that purpose, which shall

  1. as soon as possible thereafter, review the report and undertake a comprehensive review of the provisions and operation of this Act; and

  2. report to the House of Commons, or to both Houses of Parliament, within one year after the laying of the report of the Minister or any further time that the House of Commons, or both Houses of Parliament, may authorize.

1997, c. 24, s. 50.

 

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 Act1.
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.


For the purposes of this Schedule the following expressions, where used in 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.


1 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.

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 27:

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

  1. 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

  2. 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.

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.

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

  1. 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

  2. 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.

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.

Continuation in office

27. Notwithstanding any other provision of this Act, the members of the Copyright Appeal Board appointed pursuant to section 68 of the Copyright Act, as it read immediately before the coming into force of section 13, continue in office and may continue to perform their duties and exercise their powers to the extent necessary to consider and deal with any matter before it pursuant to section 69 of that Act before the coming into force of section 14."

- 1988, c. 65, s. 149:

First certified statements of royalties

"149. For greater certainty, the royalties in the first statements certified under paragraph 70.63(1)(d) of the Copyright Act become effective on January 1, 1990 regardless of when the statements are so certified."

- 1993, c. 23, ss. 6, 7:

Transitional: Statements of royalties

6. (1) Notwithstanding section 67 of the Copyright Act, a statement filed with the Copyright Board pursuant to subsection 67(2) or (3) of that Act on or before September 1, 1992

  1. may provide, or

  2. may be amended with leave of the Board, if application therefor is made to the Board within twenty-eight days after the coming into force of this Act, to provide

for the payment of royalties, for the period beginning on the coming into force of this Act and ending at the end of 1993, in respect of the communication of dramatico-musical or musical works to the public by telecommunication, and a statement so filed or amended is effective for that period to the extent that the Board certifies it as approved pursuant to subsection 67.2(1) of the Copyright Act.

No duplication of royalties

(2) Where a statement referred to in subsection (1) is certified as approved, the Board shall not certify as approved any other statement filed by the same applicant, to the extent that it provides for royalties in respect of the same act and for the same period as set out in the statement previously certified as approved.

Where this Act does not apply

7. This Act does not apply in respect of statements filed with the Board pursuant to subsection 67(2) or (3) of the Copyright Act on or before September 1, 1991 that relate to any year before 1993.

- 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.

Application of amendments to s. 11

(3) Except as provided by section 75 of this Act,

  1. 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

  2. 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.

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.

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. 22(2):

(2) Subsection (1) applies in respect of

  1. proceedings commenced but not concluded before this section comes into force; and

  2. proceedings commenced after this section comes into force.

- 1997, c. 24, ss. 53 to 54:

53. The levies in the first tariffs certified under paragraph 83(8)(c) of the Copyright Act, as enacted by section 50 of this Act, become effective at the beginning of the first calendar year following the coming into force of that paragraph, regardless of when the tariffs are so certified, and are effective for a period of two calendar years.

53.1 Notwithstanding subsection 67.1(2) and section 70.13 of the Copyright Act, as enacted by sections 45 and 46 of this Act, the date for the filing of the first proposed tariffs under those sections shall be on or before September 1 of the year of the coming into force of this section.

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. 55 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

  1. was made before the coming into force of Part II of the Copyright Act, as enacted by section 14 of this Act, and

  2. 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.

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.

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.

58. Nothing in this Act shall be construed as reviving a copyright that expired before the coming into force of this section.

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:

  1. 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;

  2. section 2.6 of the Copyright Act, as enacted by section 2 of this Act;

  3. section 27.1 of the Copyright Act, as enacted by section 15 of this Act; and

  4. 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"  distributeur exclusif 

"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

  1. the only distributor of the book in Canada or any part of Canada, or

  2. the only distributor of the book in Canada or any part of Canada in respect of a particular sector of the market.

(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.

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

  1. 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

    1. there is an exclusive distributor of the book in Canada, and

    2. section 27.1 of that Act came into force or was deemed to have come into force on June 30, 1996; and

  2. 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.

 

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