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INTELLECTUAL PROPERTY RIGHTS

NATIONAL LEGISLATION - CANADA

Bill C-32: An Act to amend the Copyright Act


 

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.

 

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 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,

 

 

    (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 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,

 

 

    (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 of Canada within the meaning of the Immigration 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).

 

 

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.

 

 

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.

 

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.

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.

 

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.

 

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.
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

 

 

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

 

    (b) 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.

 

51. Schedule III to the Act is repealed.

 

 

52. (1) The French version of the Act is amended by replacing the word ``droits'' with the word ``redevances'', with such modifications as the circumstances require, in the following provisions:

 

 

    (a) subsection 28.01(2) (renumbered as subsection 31(2)); and

 

    (b) paragraph 60(2)(b).

 

(2) Subsection 69(2) of the French version of the Act is amended by replacing the reference to ``aucun droit'' with a reference to ``aucun redevance''.

 

 

GENERAL

 

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.

 

 

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.

 

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.

 

 

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.

 

 

REPEALS

 

59. Subsection 42(3) of the Copyright Act, chapter C-30 of the Revised Statutes of Canada, 1970, is repealed.

 

 

60. Section 51 of the Copyright Act, chapter 55 of the Revised Statutes of Canada, 1952, is repealed.

 

 

COMING INTO FORCE

Coming into force

 

61. Except as provided by section 62, this Act or any provision of this Act, or any provision of the Copyright Act as enacted or amended by this Act, comes into force on a day or days to be fixed by order of the Governor in Council.

 

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"
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

 

 

      (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.

 

(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

 

 

    (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.

 

 

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