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| R.S., c. 10 (4th
Supp.), s. 8; 1993, c. 15, s. 3, c. 44, s. 65(2); 1994, c. 47, s.
62, 63
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20. (1)
Sections 34 to 39 of the Act are replaced by the following:
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| Copyright
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34. (1) Where copyright has been
infringed, the owner of the copyright is, subject to this Act,
entitled to all remedies by way of injunction, damages, accounts,
delivery up and otherwise that are or may be conferred by law for
the infringement of a right.
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| Moral rights
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(2) In any proceedings for an
infringement of a moral right of an author, the court may grant to
the author or to the person who holds the moral rights by virtue of
subsection 14.2(2) or (3), as the case may be, all remedies by way
of injunction, damages, accounts, delivery up and otherwise that are
or may be conferred by law for the infringement of a right.
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| Costs
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(3) The costs of all parties in any
proceedings in respect of the infringement of a right conferred by
this Act shall be in the discretion of the court.
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| Summary proceedings
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(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:
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(a) proceedings for infringement of copyright or moral
rights;
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(b) proceedings taken under section 44.1, 44.2 or 44.4; and
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(c) proceedings taken in respect of
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(i) a tariff certified by the Board under Part VII or VIII, or
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(ii) agreements referred to in section 70.12.
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| Practice and procedure
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(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.
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| Actions
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(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.
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| Meaning of
"application"
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(7) In this section, ``application''
means a proceeding that is commenced other than by way of a writ or
statement of claim.
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| Presumptions
respecting copyright and ownership
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34.1 (1) In any proceedings for
infringement of copyright in which the defendant puts in issue
either the existence of the copyright or the title of the plaintiff
thereto,
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(a) copyright shall be presumed, unless the contrary is
proved, to subsist in the work, performer's performance, sound
recording or communication signal, as the case may be; and
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(b) the author, performer, maker or broadcaster, as the
case may be, shall, unless the contrary is proved, be presumed to
be the owner of the copyright.
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| Where no grant
registered
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(2) Where any matter referred to in
subsection (1) is at issue and no assignment of the copyright, or
licence granting an interest in the copyright, has been registered
under this Act,
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(a) if a name purporting to be that of
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(i) the author of the work,
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(ii) the performer of the performer's performance,
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(iii) the maker of the sound recording, or
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(iv) the broadcaster of the communication signal
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is printed or otherwise indicated thereon in the usual manner, the
person whose name is so printed or indicated shall, unless the
contrary is proved, be presumed to be the author, performer, maker
or broadcaster;
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(i) no name is so printed or indicated, or if the name so
printed or indicated is not the true name of the author,
performer, maker or broadcaster or the name by which that person
is commonly known, and
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(ii) a name purporting to be that of the publisher or owner of
the work, performer's performance, sound recording or
communication signal is printed or otherwise indicated thereon
in the usual manner,
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the person whose name is printed or indicated as described in
subparagraph (ii) shall, unless the contrary is proved, be
presumed to be the owner of the copyright in question; and
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(c) if, on a cinematographic work, a name purporting to be
that of the maker of the cinematographic work appears in the usual
manner, the person so named shall, unless the contrary is proved,
be presumed to be the maker of the cinematographic work.
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| Liability for
infringement
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35. (1) Where a person infringes
copyright, the person is liable to pay such damages to the owner of
the copyright as the owner has suffered due to the infringement and,
in addition to those damages, such part of the profits that the
infringer has made from the infringement and that were not taken
into account in calculating the damages as the court considers just.
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| Proof of profits
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(2) In proving profits,
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(a) the plaintiff shall be required to prove only receipts
or revenues derived from the infringement; and
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(b) the defendant shall be required to prove every element
of cost that the defendant claims.
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| Protection of separate
rights
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36. (1) Subject to this section,
the owner of any copyright, or any person or persons deriving any
right, title or interest by assignment or grant in writing from the
owner, may individually for himself or herself, as a party to the
proceedings in his or her own name, protect and enforce any right
that he or she holds, and, to the extent of that right, title and
interest, is entitled to the remedies provided by this Act.
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| Where copyright owner
to be made party
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(2) Where proceedings referred to in
subsection (1) are taken by a person other than the copyright owner,
the copyright owner must be made a party to those proceedings,
except
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(a) in respect of proceedings taken under section 44.1,
44.2 or 44.4;
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(b) in respect of interlocutory proceedings unless the
court is of the opinion that the interests of justice require the
copyright owner to be a party; and
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(c) in any other case, if the court is of the opinion that
the interests of justice do not require the copyright owner to be
a party.
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| Owner's liability for
costs
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(3) A copyright owner who is made a
party to proceedings pursuant to subsection (2) is not liable for
any costs unless the copyright owner takes part in the proceedings.
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| Apportionment of
damages, profits
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(4) Where a copyright owner is made a
party to proceedings pursuant to subsection (2), the court, in
awarding damages or profits, shall, subject to any agreement between
the person who took the proceedings and the copyright owner,
apportion the damages or profits referred to in subsection 35(1)
between them as the court considers appropriate.
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| Concurrent
jurisdiction of Federal Court
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37. The Federal Court has
concurrent jurisdiction with provincial courts to hear and determine
all proceedings, other than the prosecution of offences under
section 42 and 43, for the enforcement of a provision of this Act or
of the civil remedies provided by this Act.
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| Recovery of possession
of copies, plates
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38. (1) Subject to subsection
(2), the owner of the copyright in a work or other subject-matter
may
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(a) recover possession of all infringing copies of that
work or other subject-matter, and of all plates used or intended
to be used for the production of infringing copies, and
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(b) take proceedings for seizure of those copies or plates
before judgment if, under the law of Canada or of the province in
which those proceedings are taken, a person is entitled to take
such proceedings,
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as if those copies or plates were the
property of the copyright owner.
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| Powers of court
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(2) On application by
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(a) a person from whom the copyright owner has recovered
possession of copies or plates referred to in subsection (1),
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(b) a person against whom proceedings for seizure before
judgment of copies or plates referred to in subsection (1) have
been taken, or
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(c) any other person who has an interest in those copies or
plates,
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a court may order that those copies or
plates be destroyed, or may make any other order that it considers
appropriate in the circumstances.
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| Notice to interested
persons
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(3) Before making an order under
subsection (2), the court shall direct that notice be given to any
person who has an interest in the copies or plates in question,
unless the court is of the opinion that the interests of justice do
not require such notice to be given.
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| Circumstances court to
consider
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(4) In making an order under subsection
(2), the court shall have regard to all the circumstances, including
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(a) the proportion, importance and value of the infringing
copy or plate, as compared to the substrate or carrier embodying
it; and
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(b) the extent to which the infringing copy or plate is
severable from, or a distinct part of, the substrate or carrier
embodying it.
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| Limitation
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(5) Nothing in this Act entitles the
copyright owner to damages in respect of the possession or
conversion of the infringing copies or plates.
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| Statutory damages
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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.
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| Where defendant
unaware of infringement
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(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.
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| Special case
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(3) Where
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(a) there is more than one work or other subject-matter in
a single medium, and
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(b) 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,
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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.
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| Collective societies
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(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.
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| Factors to consider
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(5) In exercising its discretion under
subsections (1) to (4), the court shall consider all relevant
factors, including
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(a) the good faith or bad faith of the defendant;
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(b) the conduct of the parties before and during the
proceedings; and
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(c) the need to deter other infringements of the copyright
in question.
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| No award
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(6) No statutory damages may be awarded
against
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(a) 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;
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(b) an educational institution, library, archive or museum
that is sued in the circumstances referred to in section 38.2; or
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(c) 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.
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| Exemplary or punitive
damages not affected
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(7) An election under subsection (1)
does not affect any right that the copyright owner may have to
exemplary or punitive damages.
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| Maximum amount that
may be recovered
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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
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(a) under any agreement entered into with the collective
society; or
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(b) under a tariff certified by the Board pursuant to
section 70.15.
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| Agreements with more
than one collective society
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(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.
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| Application
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(3) Subsections (1) and (2) apply only
where
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(a) 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
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(b) copying of that general nature and extent is covered by
the agreement or tariff.
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| Injunction only remedy
when defendant not aware of copyright
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39. (1) Subject to subsection
(2), in any proceedings for infringement of copyright, the plaintiff
is not entitled to any remedy other than an injunction in respect of
the infringement if the defendant proves that, at the date of the
infringement, the defendant was not aware and had no reasonable
ground for suspecting that copyright subsisted in the work or other
subject-matter in question.
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| Exception where
copyright registered
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(2) Subsection (1) does not apply if, at
the date of the infringement, the copyright was duly registered
under this Act.
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| Wide injunction
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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
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(a) the plaintiff is the owner of the copyright or the
person to whom an interest in the copyright has been granted by
licence; and
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(b) 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.
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| Application of
injunction
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(2) An injunction granted under
subsection (1) may extend to works or other subject-matter
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(a) 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
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(b) that did not exist at the time the proceedings were
commenced.
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(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.
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(3) Section 38.1 of the Copyright
Act, as enacted by subsection (1) of this section, only applies
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(a) to proceedings commenced after the date of the
coming into force of that subsection; and
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(b) where the infringement to which those proceedings
relate occurred after that date.
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(4) Section 39.1 of the Copyright
Act, as enacted by subsection (1) of this section, applies in
respect of
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(a) proceedings commenced but not concluded before the
coming into force of subsection (1) of this section; and
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(b) proceedings commenced after the coming into force of
subsection (1) of this section.
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21. Subsection
40(2) of the Act is replaced by the following:
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| Certain remedies
inapplicable
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(2) Sections 38 and 42 do not apply in
any case in respect of which subsection (1) applies.
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| R.S., c. 10 (4th
Supp.), s. 9
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22. (1) Section
41 of the Act is replaced by the following:
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| Limitation period for
civil remedies
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41. (1) Subject to subsection
(2), a court may not award a remedy in relation to an infringement
unless
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(a) in the case where the plaintiff knew, or could
reasonably have been expected to know, of the infringement at the
time it occurred, the proceedings for infringement are commenced
within three years after the infringement occurred; or
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(b) in the case where the plaintiff did not know, and could
not reasonably have been expected to know, of the infringement at
the time it occurred, the proceedings for infringement are
commenced within three years after the time when the plaintiff
first knew, or could reasonably have been expected to know, of the
infringement.
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| Restriction
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(2) The court shall apply the limitation
period set out in paragraph (1)(a) or (b) only in
respect of a party who pleads a limitation period.
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(2) Subsection (1) applies in respect
of
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(a) proceedings commenced but not concluded before this
section comes into force; and
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(b) proceedings commenced after this section comes into
force.
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23. The heading
before section 42 of the Act is replaced by the following:
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CRIMINAL
REMEDIES
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| R.S., c. 10 (4th
Supp.), s. 10
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24. (1)
Paragraphs 42(1)(a) to (e) of the Act are replaced by
the following:
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(a) makes for sale or rental an infringing copy of a work
or other subject-matter in which copyright subsists,
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(b) sells or rents out, or by way of trade exposes or
offers for sale or rental, an infringing copy of a work or other
subject-matter in which copyright subsists,
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(c) distributes infringing copies of a work or other
subject-matter in which copyright subsists, either for the purpose
of trade or to such an extent as to affect prejudicially the owner
of the copyright,
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(d) by way of trade exhibits in public an infringing copy
of a work or other subject-matter in which copyright subsists, or
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(e) imports for sale or rental into Canada any infringing
copy of a work or other subject-matter in which copyright subsists
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| R.S., c. 10 (4th
Supp.), s. 10
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(2) Paragraphs
42(2)(a) and (b) of the Act are replaced by the
following:
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(a) makes or possesses any plate that is specifically
designed or adapted for the purpose of making infringing copies of
any work or other subject-matter in which copyright subsists, or
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(b) for private profit causes to be performed in public,
without the consent of the owner of the copyright, any work or
other subject-matter in which copyright subsists
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(3) Subsection
42(3) of the Act is replaced by the following:
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| Power of court to deal
with copies or plates
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(3) The court before which any
proceedings under this section are taken may, on conviction, order
that all copies of the work or other subject-matter that appear to
it to be infringing copies, or all plates in the possession of the
offender predominantly used for making infringing copies, be
destroyed or delivered up to the owner of the copyright or otherwise
dealt with as the court may think fit.
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| Limitation period
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(4) Proceedings by summary conviction in
respect of an offence under this section may be instituted at any
time within, but not later than, two years after the time when the
offence was committed.
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| Parallel importation
of books
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(5) No person may be prosecuted under
this section for importing a book or dealing with an imported book
in the manner described in section 27.1.
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| 1994, c. 47, s. 64
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25. Section 43.1 of the Act is
repealed.
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| 1994, c. 47, s. 65
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26. The heading before section 44 of
the Act is replaced by the following:
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