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INTELLECTUAL PROPERTY RIGHTS

NATIONAL LEGISLATION - CANADA

Copyright Act - Chapter C-42


AMENDMENTS NOT IN FORCE

- The definition "defendant" in section 2, as enacted by 1997, c. 24, s. 1(5):

"defendant" Version anglaise seulement

"defendant" includes a respondent to an application;

- The definition "plaintiff" in section 2, as enacted by 1997, c. 24, s. 1(5):

"plaintiff" Version anglaise seulement

"plaintiff" includes an applicant;

- 1997, c. 24, s. 7:

1993, c. 44, s. 60(1); 1994, c. 47, s. 69(F)

7. Section 10 of the Act is replaced by the following:

Term of copyright in photographs

10. (1) Where the owner referred to in subsection (2) is a corporation, the term for which copyright subsists in a photograph shall be the remainder of the year of the making of the initial negative or plate from which the photograph was derived or, if there is no negative or plate, of the initial photograph, plus a period of fifty years.

Where author majority shareholder

(1.1) Where the owner is a corporation, the majority of the voting shares of which are owned by a natural person who would have qualified as the author of the photograph except for subsection (2), the term of copyright is the term set out in section 6.

Author of photograph

(2) The person who

  1. was the owner of the initial negative or other plate at the time when that negative or other plate was made, or

  2. was the owner of the initial photograph at the time when that photograph was made, where there was no negative or other plate,

is deemed to be the author of the photograph and, where that owner is a body corporate, the body corporate is deemed for the purposes of this Act to be ordinarily resident in a treaty country if it has established a place of business therein.

- Sections 29.6 and 29.7, as enacted by 1997, c. 24, s. 18(1):

News and commentary

29.6 (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

  1. 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

  2. perform the copy in public, at any time or times within one year after the making of a copy under paragraph (a), before an audience consisting primarily of students of the educational institution on its premises for educational or training purposes.

Royalties for reproduction and performance

(2) The educational institution must

  1. on the expiration of one year after making a copy under paragraph (1)(a), pay the royalties and comply with any terms and conditions fixed under this Act for the making of the copy or destroy the copy; and

  2. where it has paid the royalties referred to in paragraph (a), pay the royalties and comply with any terms and conditions fixed under this Act for any performance in public of the copy after the expiration of that year.

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

  1. make a single copy of a work or other subject-matter at the time that it is communicated to the public by telecommunication; and

  2. 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.

- Section 29.9, as enacted by 1997, c. 24, s. 18(1):

Records and marking

29.9 (1) Where an educational institution or person acting under its authority

  1. makes a copy of a news program or a news commentary program and performs it pursuant to section 29.6, or

  2. 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

  1. prescribing the information in relation to the making, destruction, performance and marking of copies that must be kept under subsection (1),

  2. prescribing the manner and form in which records referred to in that subsection must be kept and copies destroyed or marked, and

  3. respecting the sending of information to collective societies referred to in section 71.

- The heading before section 30.1 and sections 30.1 to 30.3, as enacted by 1997, c. 24, s. 18(1):

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, in accordance with the regulations made under subsection (4), 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

  1. if the original is rare or unpublished and is

    1. deteriorating, damaged or lost, or

    2. at risk of deterioration or becoming damaged or lost;

  2. 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;

  3. in an alternative format if the original is currently in an obsolete format or the technology required to use the original is unavailable;

  4. for the purposes of internal record-keeping and cataloguing;

  5. for insurance purposes or police investigations; or

  6. 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).

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

  1. a scholarly, scientific or technical periodical; or

  2. 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 make a copy under subsection (2) only on condition that

  1. the person for whom the copy will be made has satisfied the library, archive or museum that the person will not use the copy for a purpose other than research or private study; and

  2. the person is provided with a single copy of the work.

Patrons of other libraries, etc.

(5) A library, archive or museum or a person acting under the authority of a library, archive or museum may do, on behalf of a person who is a patron of another library, archive or museum, anything under subsection (1) or (2) in relation to printed matter that it is authorized by this section to do on behalf of a person who is one of its patrons, but the copy given to the patron must not be in digital form.

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

  1. defining "newspaper" and "periodical";

  2. defining scholarly, scientific and technical periodicals;

  3. 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

  4. prescribing the manner and form in which the conditions set out in subsection (4) are to be met.

Copying works deposited in archive

30.21 (1) It is not an infringement of copyright for an archive to make a copy, in accordance with subsection (3), of an unpublished work that is deposited in the archive after the coming into force of this section.

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 only copy the work if

  1. the person who deposited the work, if a copyright owner, does not prohibit copying;

  2. copying has not been prohibited by any other owner of copyright in the work; and

  3. the archive is satisfied that the person for whom it is made will use the copy only for purposes of research or private study and makes only one copy for that person.

Regulations

(4) The Governor in Council may prescribe the manner and form in which the conditions in subsection (3) may be met.

Where copyright owner cannot be found

(5) Where an archive requires the consent of the copyright owner to copy an unpublished work deposited in the archive before the coming into force of this section but is unable to locate the owner, the archive may copy the work in accordance with subsection (3).

Notice

(6) The archive must make a record of any copy made under subsection (5) and keep it available for public inspection, as prescribed.

Posthumous works

(7) It is not an infringement of copyright for an archive to make a copy, in accordance with subsection (3), of any work to which subsection 7(4) applies if it was in the archive on the date of coming into force of this section.

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

  1. a copy of a work is made using a machine for the making, by reprographic reproduction, of copies of works in printed form;

  2. 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

  3. 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,

  1. 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;

  2. the Board has, in accordance with section 70.2, fixed the royalties and related terms and conditions in respect of a licence;

  3. a tariff has been approved in accordance with section 70.15; or

  4. a collective society has filed a proposed tariff in accordance with section 70.13.

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.

- The heading before section 30.8 and sections 30.8 and 30.9, as enacted by 1997, c. 24, s. 18(1):

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

  1. is authorized to communicate the performer's performance, work or sound recording to the public by telecommunication;

  2. makes the fixation or the reproduction itself, for its own broadcasts;

  3. does not synchronize the fixation or reproduction with all or part of another recording, performer's performance or work; and

  4. 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

  1. the copyright owner authorizes its retention; or

  2. 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 National 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

  1. in accordance with subsections (2) to (6); and

  2. 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

  1. a programming undertaking as defined in subsection 2(1) of the Broadcasting Act;

  2. a programming undertaking described in paragraph (a) that originates programs within a network, as defined in subsection 2(1) of the Broadcasting Act; or

  3. 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.

Pre-recorded recordings

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 transferring it to a format appropriate for broadcasting, if the undertaking

  1. owns the copy of the sound recording, performer's performance or work and that copy is authorized by the owner of the copyright;

  2. is authorized to communicate the sound recording, performer's performance or work to the public by telecommunication;

  3. makes the reproduction itself, for its own broadcasts;

  4. does not synchronize the reproduction with all or part of another recording, performer's performance or work; and

  5. 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 at the latest within thirty 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.

Application

(6) This section does not apply if a licence is available from a collective society to reproduce the sound recording, performer's performance or work.

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.

- Subsections 34(4) to (7), as enacted by 1997, c. 24, s. 20(1):

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:

  1. proceedings for infringement of copyright or moral rights;

  2. proceedings taken under section 44.1, 44.2 or 44.4; and

  3. proceedings taken in respect of

    1. a tariff certified by the Board under Part VII or VIII, or

    2. agreements referred to in section 70.12.

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.

- Sections 38.1 and 38.2, as enacted by 1997, c. 24, s. 20(1):

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 all infringements involved in the proceedings, with respect to any one work or other subject-matter, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $500 or more than $20,000 as the court considers just.

Where defendant unaware of infringement

(2) Where 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 to less than $500, but not less than $200.

Special case

(3) Where

  1. there is more than one work or other subject-matter in a single medium, and

  2. the awarding of even the minimum amount referred to in subsection (1) or (2) would result in a total award that, in the court's opinion, is grossly out of proportion to the infringement,

the court may award, with respect to each work or other subject-matter, such lower amount than $500 or $200, as the case may be, as the court considers just.

Collective societies

(4) Where the defendant has not paid applicable royalties, a collective society referred to in section 67 may only make an election under this section to recover, in lieu of any other remedy of a monetary nature provided by this Act, an award of statutory damages 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.

Factors to consider

(5) In exercising its discretion under subsections (1) to (4), the court shall consider all relevant factors, including

  1. the good faith or bad faith of the defendant;

  2. the conduct of the parties before and during the proceedings; and

  3. the need to deter other infringements of the copyright in question.

No award

(6) No statutory damages may be awarded against

  1. 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;

  2. an educational institution, library, archive or museum that is sued in the circumstances referred to in section 38.2; or

  3. 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.

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.

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

  1. under any agreement entered into with the collective society; or

  2. under a tariff certified by the Board pursuant to section 70.15.

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

  1. 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

  2. copying of that general nature and extent is covered by the agreement or tariff.

- Section 39.1, as enacted by 1997, c. 24, s. 20(1):

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

  1. the plaintiff is the owner of the copyright or the person to whom an interest in the copyright has been granted by licence; and

  2. 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

  1. 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

  2. that did not exist at the time the proceedings were commenced.

- 1997, c. 24, ss. 20(2) to (4):

(2) Section 38 of the Copyright Act, as it read immediately before the coming into force of subsection (1) of this section, continues to apply in respect of proceedings commenced but not concluded before the coming into force of subsection (1) of this section.

(3) Section 38.1 of the Copyright Act, as enacted by subsection (1) of this section, only applies

  1. to proceedings commenced after the date of the coming into force of that subsection; and

  2. where the infringement to which those proceedings relate occurred after that date.

(4) Section 39.1 of the Copyright Act, as enacted by subsection (1) of this section, applies in respect of

  1. proceedings commenced but not concluded before the coming into force of subsection (1) of this section; and

  2. proceedings commenced after the coming into force of subsection (1) of this section.

- 1997, c. 24, s. 54.1:

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

  1. 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

  2. the natural person referred to in subsection 10(1.1) of the Copyright Act, as enacted by section 7 of this Act.


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