2nd Session, 35th Parliament,
45-46 Elizabeth II, 1996-97

The House of Commons of Canada

BILL C-32

An Act to amend the Copyright Act

R.S., c. C-42; R.S., c. 10 (1st Supp.), cc. 1, 41 (3rd Supp.), c. 10 (4th Supp.); 1988, c. 65; 1990, c. 37; 1992, c. 1; 1993, cc. 15, 23, 44; 1994, c. 47; 1995, c. 1

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

1. (1) The definitions ''delivery'', ''Her Majesty's Realms and Territories'' and ''work of sculpture'' in section 2 of the Copyright Act are repealed.

1993, c. 44, s. 53(2), (3); 1994, c. 47, s. 56(1), (3)

(2) The definitions ''book'', ''cinematograph'', ''infringing'', ''maker'', ''performance'', ''performer's performance'' and ''plate'' in section 2 of the Act are replaced by the following:

''book''
« livre »

''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;

''cinematographic work''
« oeuvre cinémato-
graphique »

''cinematographic work'' includes any work expressed by any process analogous to cinematography, whether or not accompanied by a soundtrack;

''infringing''
« contre-façon »

''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;

''maker''
« producteur »

''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;

''performance ''
« représentation » ou
« exécution »

''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;

''performer's performance''
« prestation »

''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;

''plate'' « planche »

''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;

1993, c. 44, s. 53(2); 1994, c. 47, s. 56(4)

(3) The definitions ''artiste interprète'' and ''oeuvre artistique'' in section 2 of the French version of the Act are replaced by the following:

« artiste-interprète »
French version only

« artiste-interprète » Tout artiste-interprète ou exécutant.

« oeuvre artistique »
''artistic work''

« oeuvre artistique » Sont compris parmi les oeuvres artistiques les peintures, dessins, sculptures, oeuvres architecturales, gravures ou photographies, les oeuvres artistiques dues à des artisans ainsi que les graphiques, cartes, plans et compilations d'oeuvres artistiques.

1993, c. 44, s. 53(2)

(4) Paragraph (b) of the definition ''dramatic work'' in section 2 of the English version of the Act is replaced by the following:

(b) any cinematographic work, and

(5) Section 2 of the Act is amended by adding the following in alphabetical order:

"broadcaster"
« radiodiffuseur »

''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;

''collective society''
« société de gestion »

''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 pursuant to this Act;

''commerciall y available''
«accessible sur le marché»

''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;

''communication signal''
« signal de communication »

''communication signal'' means radio waves transmitted through space without any artificial guide, for reception by the public;

''copyright''
« droit d'auteur »

''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;

''country'' « pays »

''country'' includes any territory;

''defendant'' Version anglaise seulement

''defendant'' includes a respondent to an application;

''educational institution''
« établissement d'enseigne-
ment »

''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;

''exclusive distributor''
« distributeur exclusif »

''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'';

''library, archive or museum''
« bibliothèque, musée ou service d'archive »

''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;

''perceptual disability''
« déficience perceptuelle »

''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;

''plaintiff'' Version anglaise seulement

''plaintiff'' includes an applicant;

''premises''
« locaux »

''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;

''Rome Convention country''
« pays partie à la Convention de Rome »

''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;

''sculpture''
« sculpture »

''sculpture'' includes a cast or model;

''sound recording''
« enregistrement sonore »

''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;

2. The Act is amended by adding the following after section 2.1:

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.

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.

(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.

(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.