Copyright Act · GlobalLawDB

Contents

1Short title#

This Act may be cited as the Copyright Act.^note

2Definitions#

In this Act,

architectural work means any building or structure or any model of a building or structure; (oeuvre architecturale)

architectural work of art [Repealed, 1993, c. 44, s. 53]

artistic work includes paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works; (oeuvre artistique)

Berne Convention country means a country that is a party to the Convention for the Protection of Literary and Artistic Works concluded at Berne on September 9, 1886, or any one of its revisions, including the Paris Act of 1971; (pays partie à la Convention de Berne)

Board means the Copyright Board established by subsection 66(1); (Commission)

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; (livre)

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; (radiodiffuseur)

Canada–United States–Mexico Agreement has the meaning assigned by the definition Agreement in section 2 of the Canada–United States–Mexico Agreement Implementation Act; (Accord Canada–États-Unis–Mexique)

choreographic work includes any work of choreography, whether or not it has any story line; (oeuvre chorégraphique)

cinematograph [Repealed, 1997, c. 24, s. 1]

cinematographic work includes any work expressed by any process analogous to cinematography, whether or not accompanied by a soundtrack; (oeuvre cinématographique)

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 under this Act 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; (société de gestion)

collective work means

(a)an encyclopaedia, dictionary, year book or similar work,

(b)a newspaper, review, magazine or similar periodical, and

(c)any work written in distinct parts by different authors, or in which works or parts of works of different authors are incorporated; (recueil)

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; (accessible sur le marché)

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

compilation means

(a)a work resulting from the selection or arrangement of literary, dramatic, musical or artistic works or of parts thereof, or

(b)a work resulting from the selection or arrangement of data; (compilation)

computer program means a set of instructions or statements, expressed, fixed, embodied or stored in any manner, that is to be used directly or indirectly in a computer in order to bring about a specific result; (programme d’ordinateur)

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; (droit d’auteur)

country includes any territory; (pays)

defendant includes a respondent to an application; (Version anglaise seulement)

delivery [Repealed, 1997, c. 24, s. 1]

dramatic work includes

(a)any piece for recitation, choreographic work or mime, the scenic arrangement or acting form of which is fixed in writing or otherwise,

(b)any cinematographic work, and

(c)any compilation of dramatic works; (oeuvre dramatique)

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; (établissement d’enseignement)

engravings includes etchings, lithographs, woodcuts, prints and other similar works, not being photographs; (gravure)

every original literary, dramatic, musical and artistic work includes every original production in the literary, scientific or artistic domain, whatever may be the mode or form of its expression, such as compilations, books, pamphlets and other writings, lectures, dramatic or dramatico-musical works, musical works, translations, illustrations, sketches and plastic works relative to geography, topography, architecture or science; (toute oeuvre littéraire, dramatique, musicale ou artistique originale)

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”; (distributeur exclusif)

Her Majesty’s Realms and Territories [Repealed, 1997, c. 24, s. 1]

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; (contrefaçon)

lecture includes address, speech and sermon; (conférence)

legal representatives includes heirs, executors, administrators, successors and assigns, or agents or attorneys who are thereunto duly authorized in writing; (représentants légaux)

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; (bibliothèque, musée ou service d’archives)

literary work includes tables, computer programs, and compilations of literary works; (oeuvre littéraire)

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; (producteur)

Minister, except in sections 44 to 44.12, means the Minister of Industry; (ministre)

moral rights means the rights described in subsections 14.1(1) and 17.1(1); (droits moraux)

musical work means any work of music or musical composition, with or without words, and includes any compilation thereof; (oeuvre musicale)

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; (déficience perceptuelle)

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; (représentation ou exécution)

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; (prestation)

photograph includes photo-lithograph and any work expressed by any process analogous to photography; (photographie)

plaintiff includes an applicant; (Version anglaise seulement)

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; (planche)

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; (locaux)

receiving device [Repealed, 1993, c. 44, s. 79]

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; (pays partie à la Convention de Rome)

sculpture includes a cast or model; (sculpture)

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; (enregistrement sonore)

telecommunication means any transmission of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system; (télécommunication)

treaty country means a Berne Convention country, UCC country, WCT country or WTO Member; (pays signataire)

UCC country means a country that is a party to the Universal Copyright Convention, adopted on September 6, 1952 in Geneva, Switzerland, or to that Convention as revised in Paris, France on July 24, 1971; (pays partie à la Convention universelle)

WCT country means a country that is a party to the WIPO Copyright Treaty, adopted in Geneva on December 20, 1996; (pays partie au traité de l’ODA)

work includes the title thereof when such title is original and distinctive; (oeuvre)

work of joint authorship means a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors; (oeuvre créée en collaboration)

work of sculpture [Repealed, 1997, c. 24, s. 1]

WPPT country means a country that is a party to the WIPO Performances and Phonograms Treaty, adopted in Geneva on December 20, 1996; (pays partie au traité de l’OIEP)

WTO Member means a Member of the World Trade Organization as defined in subsection 2(1) of the World Trade Organization Agreement Implementation Act. (membre de l’OMC)

^note

2.1Compilations#

(1)A compilation containing two or more of the categories of literary, dramatic, musical or artistic works shall be deemed to be a compilation of the category making up the most substantial part of the compilation.

(2)The mere fact that a work is included in a compilation does not increase, decrease or otherwise affect the protection conferred by this Act in respect of the copyright in the work or the moral rights in respect of the work.

^note

2.11Definition of maker#

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.^note

2.2Definition of publication#

(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,

(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.

but does not include

(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.

(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.

(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.

^note

2.3Telecommunication#

A person who communicates a work or other subject-matter to the public by telecommunication does not by that act alone perform it in public, nor by that act alone is deemed to authorize its performance in public.^note

2.4Communication to the public by telecommunication#

(1)For the purposes of communication to the public by telecommunication,

(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.

(1.1)For the purposes of this Act, communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public.

(2)The Governor in Council may make regulations defining “programming undertaking” for the purpose of paragraph (1)(c).

(3)A work is not communicated in the manner described in paragraph (1)(c) or 3(1)(f) where a signal carrying the work is retransmitted to a person who is a retransmitter within the meaning of subsection 31(1).

^note

2.5What constitutes rental#

(1)For the purposes of paragraphs 3(1)(h) and (i), 15(1)(c) and 18(1)(c), an arrangement, whatever its form, constitutes a rental of a computer program or sound recording if, and only if,

(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.

(2)For the purpose of paragraph (1)(b), a person who rents out a computer program or sound recording with the intention of recovering no more than the costs, including overhead, associated with the rental operations does not by that act alone have a motive of gain in relation to the rental operations.

^note

2.6Exclusive distributor#

The Governor in Council may make regulations establishing distribution criteria for the purpose of paragraph (b) of the definition exclusive distributor in section 2.^note

2.7Exclusive licence#

For the purposes of this Act, an exclusive licence is an authorization to do any act that is subject to copyright to the exclusion of all others including the copyright owner, whether the authorization is granted by the owner or an exclusive licensee claiming under the owner.^note

Part I · Copyright and Moral Rights in Works

Copyright

3Copyright in works#

(1)For the purposes of this Act, copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right

(a)to produce, reproduce, perform or publish any translation of the work,

(b)in the case of a dramatic work, to convert it into a novel or other non-dramatic work,

(c)in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise,

(d)in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed,

(e)in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work,

(f)in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,

(g)to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan,

(h)in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program,

(i)in the case of a musical work, to rent out a sound recording in which the work is embodied, and

(j)in the case of a work that is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the copyright owner,

and to authorize any such acts.

(1.1)A work that is communicated in the manner described in paragraph (1)(f) is fixed even if it is fixed simultaneously with its communication.

(1.2) to (4)[Repealed, 1997, c. 24, s. 3] (repealed)

^note

4 #

[Repealed, 1997, c. 24, s. 4] (repealed)

Works in which Copyright may Subsist

5Conditions for subsistence of copyright#

(1)Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work if any one of the following conditions is met:

(a)in the case of any work, whether published or unpublished, including a cinematographic work, the author was, at the date of the making of the work, a citizen or subject of, or a person ordinarily resident in, a treaty country;

(b)in the case of a cinematographic work, whether published or unpublished, the maker, at the date of the making of the cinematographic work,

(i)if a corporation, had its headquarters in a treaty country, or

(ii)if a natural person, was a citizen or subject of, or a person ordinarily resident in, a treaty country; or

(c)in the case of a published work, including a cinematographic work,

(i)in relation to subparagraph 2.2(1)(a)(i), the first publication in such a quantity as to satisfy the reasonable demands of the public, having regard to the nature of the work, occurred in a treaty country, or

(ii)in relation to subparagraph 2.2(1)(a)(ii) or (iii), the first publication occurred in a treaty country.

(1.01)For the purposes of subsection (1), a country that becomes a Berne Convention country, a WCT country or a WTO Member after the date of the making or publication of a work is deemed to have been a Berne Convention country, a WCT country or a WTO Member, as the case may be, at that date, subject to subsection (1.02) and sections 33 to 33.2.

(1.02)Subsection (1.01) does not confer copyright protection in Canada on a work whose term of copyright protection in the country referred to in that subsection had expired before that country became a Berne Convention country, a WCT country or a WTO Member, as the case may be.

(1.03)Subsections (1.01) and (1.02) apply, and are deemed to have applied, regardless of whether the country in question became a Berne Convention country, a WCT country or a WTO Member before or after the coming into force of those subsections.

(1.1)The first publication described in subparagraph (1)(c)(i) or (ii) is deemed to have occurred in a treaty country notwithstanding that it in fact occurred previously elsewhere, if the interval between those two publications did not exceed thirty days.

(1.2)Copyright shall not subsist in Canada otherwise than as provided by subsection (1), except in so far as the protection conferred by this Act is extended as hereinafter provided to foreign countries to which this Act does not extend.

(2)Where the Minister certifies by notice, published in the Canada Gazette, that any country that is not a treaty country grants or has undertaken to grant, either by treaty, convention, agreement or law, to citizens of Canada, the benefit of copyright on substantially the same basis as to its own citizens or copyright protection substantially equal to that conferred by this Act, the country shall, for the purpose of the rights conferred by this Act, be treated as if it were a country to which this Act extends, and the Minister may give a certificate, notwithstanding that the remedies for enforcing the rights, or the restrictions on the importation of copies of works, under the law of such country, differ from those in this Act.

(2.1)[Repealed, 1994, c. 47, s. 57] (repealed)

(3) to (6)[Repealed, 1997, c. 24, s. 5] (repealed)

(7)For greater certainty, the protection to which a work is entitled by virtue of a notice published under subsection (2), or under that subsection as it read at any time before the coming into force of this subsection, is not affected by reason only of the country in question becoming a treaty country.

^note

Term of Copyright

6Term of copyright#

Except as otherwise expressly provided by this Act, the term for which copyright subsists is the life of the author, the remainder of the calendar year in which the author dies, and a period of 70 years following the end of that calendar year.^note

6.1Anonymous and pseudonymous works#

(1)Except as provided in section 6.2 and in subsection (2), where the identity of the author of a work is unknown, copyright in the work shall subsist until the end of 75 years following the end of the calendar year in which the work is made. However, if the work is published before the copyright expires, the copyright continues until the earlier of the end of 75 years following the end of the calendar year in which the first publication occurs and 100 years following the end of the calendar year in which the work was made.

(2)Where, during any term referred to in subsection (1), the author’s identity becomes commonly known, the term provided in section 6 applies.

^note

6.2Anonymous and pseudonymous works of joint authorship#

(1)Except as provided in subsection (2), where the identity of all the authors of a work of joint authorship is unknown, copyright in the work shall subsist until the end of 75 years following the end of the calendar year in which the work is made. However, if the work is published before the copyright expires, the copyright continues until the earlier of the end of 75 years following the end of the calendar year in which the first publication occurs and 100 years following the end of the calendar year in which the work was made.

(2)If, during any term referred to in subsection (1), the identity of one or more of the authors becomes commonly known, copyright subsists for the life of whichever of those authors dies last, the remainder of the calendar year in which that author dies and a period of 70 years following the end of that calendar year.

^note

7Term of copyright in certain posthumous works#

(1)Subject to subsection (2), in the case of a literary, dramatic or musical work, or an engraving, in which copyright subsists at the date of the death of the author — or, in the case of a work of joint authorship, at or immediately before the date of the death of the author who dies last — but which has not been published or, in the case of a lecture or a dramatic or musical work, been performed in public or communicated to the public by telecommunication, before that date, copyright subsists for the longer of

(a)the period until publication, or performance in public or communication to the public by telecommunication, whichever may first happen, as well as the remainder of the calendar year of the publication or of the performance in public or communication to the public by telecommunication, as the case may be, and for a period of 50 years following the end of that calendar year, and

(b)the life of the author — or, in the case of a work of joint authorship, the life of the author who dies last — as well as the remainder of the calendar year in which that author dies and a period of 70 years following the end of the calendar year in which that author dies.

(2)Subsection (1) applies only if the work in question was published or performed in public or communicated to the public by telecommunication, as the case may be, before December 31, 1998.

(3)If a work was not published or performed in public or communicated to the public by telecommunication before December 31, 1998, if subsection (1) would apply to that work had it been published or performed in public or communicated to the public by telecommunication before that day, and if the relevant death referred to in subsection (1) occurred during the period of 50 years immediately before that day, copyright subsists in the work, whether or not the work is published or performed in public or communicated to the public by telecommunication on or after that day,

(a)until December 31, 2048; or

(b)for the life of the author — or, in the case of a work of joint authorship, the life of the author who dies last — as well as the remainder of the calendar year in which that author dies and a period of 70 years following the end of that calendar year, if that period ends after December 31, 2048.

^note

8 #

[Repealed, 1993, c. 44, s. 59] (repealed)

9Cases of joint authorship#

In the case of a work of joint authorship, except as provided in section 6.2 or subsection 7(1) or (3), copyright subsists during the life of the author who dies last, for the remainder of the calendar year in which that author dies, and for a period of 70 years following the end of that calendar year, and references in this Act to the period after the expiration of any specified number of years from the end of the calendar year of the death of the author shall be construed as references to the period after the expiration of the like number of years from the end of the calendar year of the death of the author who dies last.^note

10 #

[Repealed, 2012, c. 20, s. 6] (repealed)

11 #

[Repealed, 1997, c. 24, s. 8] (repealed)

11.1Cinematographic works#

Except for cinematographic works in which the arrangement or acting form or the combination of incidents represented give the work a dramatic character, copyright in a cinematographic work or a compilation of cinematographic works shall subsist until the end of 70 years following the end of the calendar year in which the cinematographic work or the compilation is made. However, if the cinematographic work or the compilation is published before the copyright expires, the copyright continues until the earlier of the end of 75 years following the end of the calendar year in which the first publication occurs and 100 years following the end of the calendar year in which the cinematographic work or the compilation was made.^note

12Where copyright belongs to Her Majesty#

Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year.^note

Ownership of Copyright

13Ownership of copyright#

(1)Subject to this Act, the author of a work shall be the first owner of the copyright therein.

(2)[Repealed, 2012, c. 20, s. 7] (repealed)

(3)Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, but where the work is an article or other contribution to a newspaper, magazine or similar periodical, there shall, in the absence of any agreement to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine or similar periodical.

(4)The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations relating to territory, medium or sector of the market or other limitations relating to the scope of the assignment, and either for the whole term of the copyright or for any other part thereof, and may grant any interest in the right by licence, but no assignment or grant is valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by the owner’s duly authorized agent.

(5)Where, under any partial assignment of copyright, the assignee becomes entitled to any right comprised in copyright, the assignee, with respect to the rights so assigned, and the assignor, with respect to the rights not assigned, shall be treated for the purposes of this Act as the owner of the copyright, and this Act has effect accordingly.

(6)For greater certainty, it is deemed always to have been the law that a right of action for infringement of copyright may be assigned in association with the assignment of the copyright or the grant of an interest in the copyright by licence.

(7)For greater certainty, it is deemed always to have been the law that a grant of an exclusive licence in a copyright constitutes the grant of an interest in the copyright by licence.

^note

14Limitation where author is first owner of copyright#

(1)Where the author of a work is the first owner of the copyright therein, no assignment of the copyright and no grant of any interest therein, made by him, otherwise than by will, after June 4, 1921, is operative to vest in the assignee or grantee any rights with respect to the copyright in the work beyond the expiration of twenty-five years from the death of the author, and the reversionary interest in the copyright expectant on the termination of that period shall, on the death of the author, notwithstanding any agreement to the contrary, devolve on his legal representatives as part of the estate of the author, and any agreement entered into by the author as to the disposition of such reversionary interest is void.

(2)Nothing in subsection (1) shall be construed as applying to the assignment of the copyright in a collective work or a licence to publish a work or part of a work as part of a collective work.

(3)[Repealed, 1997, c. 24, s. 11] (repealed)

(4)[Repealed, R.S., 1985, c. 10 (4th Supp.), s. 3] (repealed)

^note

14.01 #

[Repealed, 1997, c. 24, s. 12] (repealed)

Moral Rights

14.1Moral rights#

(1)The author of a work has, subject to section 28.2, the right to the integrity of the work and, in connection with an act mentioned in section 3, the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.

(2)Moral rights may not be assigned but may be waived in whole or in part.

(3)An assignment of copyright in a work does not by that act alone constitute a waiver of any moral rights.

(4)Where a waiver of any moral right is made in favour of an owner or a licensee of copyright, it may be invoked by any person authorized by the owner or licensee to use the work, unless there is an indication to the contrary in the waiver.

^note

14.2Term#

(1)Moral rights in respect of a work subsist for the same term as the copyright in the work.

(2)The moral rights in respect of a work pass, on the death of its author, to

(a)the person to whom those rights are specifically bequeathed;

(b)where there is no specific bequest of those moral rights and the author dies testate in respect of the copyright in the work, the person to whom that copyright is bequeathed; or

(c)where there is no person described in paragraph (a) or (b), the person entitled to any other property in respect of which the author dies intestate.

(3)Subsection (2) applies, with such modifications as the circumstances require, on the death of any person who holds moral rights.

^note

Part II · Copyright in Performers’ Performances, Sound Recordings and Communication Signals and Moral Rights in Performers’ Performances

Performers’ Rights

Copyright

15Copyright in performer’s performance#

(1)Subject to subsection (2), a performer has a copyright in the performer’s performance, consisting of the sole right to do the following in relation to the performer’s performance or any substantial part thereof:

(a)if it is not fixed,

(i)to communicate it to the public by telecommunication,

(ii)to perform it in public, where it is communicated to the public by telecommunication otherwise than by communication signal, and

(iii)to fix it in any material form,

(b)if it is fixed,

(i)to reproduce any fixation that was made without the performer’s authorization,

(ii)where the performer authorized a fixation, to reproduce any reproduction of that fixation, if the reproduction being reproduced was made for a purpose other than that for which the performer’s authorization was given, and

(iii)where a fixation was permitted under Part III or VIII, to reproduce any reproduction of that fixation, if the reproduction being reproduced was made for a purpose other than one permitted under Part III or VIII, and

(c)to rent out a sound recording of it,

and to authorize any such acts.

(1.1)Subject to subsections (2.1) and (2.2), a performer’s copyright in the performer’s performance consists of the sole right to do the following acts in relation to the performer’s performance or any substantial part of it and to authorize any of those acts:

(a)if it is not fixed,

(i)to communicate it to the public by telecommunication,

(ii)to perform it in public, if it is communicated to the public by telecommunication otherwise than by communication signal, and

(iii)to fix it in any material form;

(b)if it is fixed in a sound recording, to reproduce that fixation;

(c)to rent out a sound recording of it;

(d)to make a sound recording of it available to the public by telecommunication in a way that allows a member of the public to have access to the sound recording from a place and at a time individually chosen by that member of the public and to communicate the sound recording to the public by telecommunication in that way; and

(e)if it is fixed in a sound recording that is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the owner of the copyright in the performer’s performance.

(2)Subsection (1) applies only if the performer’s performance

(a)takes place in Canada or in a Rome Convention country;

(b)is fixed in

(i)a sound recording whose maker, at the time of the first fixation,

(A)if a natural person, was a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, or a citizen or permanent resident of a Rome Convention country, or

(B)if a corporation, had its headquarters in Canada or in a Rome Convention country, or

(ii)a sound recording whose first publication in such a quantity as to satisfy the reasonable demands of the public occurred in Canada or in a Rome Convention country; or

(c)is transmitted at the time of the performer’s performance by a communication signal broadcast from Canada or a Rome Convention country by a broadcaster that has its headquarters in the country of broadcast.

(2.1)Subsection (1.1) applies if

(a)the performer’s performance takes place in Canada;

(b)the performer’s performance is fixed in

(i)a sound recording whose maker, at the time of its first fixation,

(A)was a Canadian citizen or permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act, in the case of a natural person, or

(B)had its headquarters in Canada, in the case of a corporation, or

(ii)a sound recording whose first publication in a quantity sufficient to satisfy the reasonable demands of the public occurred in Canada; or

(c)the performer’s performance is transmitted at the time of its performance by a communication signal broadcast from Canada by a broadcaster that has its headquarters in Canada.

(2.2)Subsection (1.1) also applies if

(a)the performer’s performance takes place in a WPPT country;

(b)the performer’s performance is fixed in

(i)a sound recording whose maker, at the time of its first fixation,

(A)was a citizen or permanent resident of a WPPT country, in the case of a natural person, or

(B)had its headquarters in a WPPT country, in the case of a corporation, or

(ii)a sound recording whose first publication in a quantity sufficient to satisfy the reasonable demands of the public occurred in a WPPT country; or

(c)the performer’s performance is transmitted at the time of its performance by a communication signal broadcast from a WPPT country by a broadcaster that has its headquarters in that country.

(3)The first publication is deemed to have occurred in a country referred to in paragraph (2)(b) notwithstanding that it in fact occurred previously elsewhere, if the interval between those two publications does not exceed thirty days.

(4)The first publication of a sound recording is deemed to have occurred in a WPPT country, despite an earlier publication elsewhere, if the interval between the publication in that WPPT country and the earlier publication does not exceed 30 days.

^note

16Contractual arrangements#

Nothing in section 15 prevents the performer from entering into a contract governing the use of the performer’s performance for the purpose of broadcasting, fixation or retransmission.^note

17Cinematographic works#

(1)Where the performer authorizes the embodiment of the performer’s performance in a cinematographic work, the performer may no longer exercise, in relation to the performance where embodied in that cinematographic work, the copyright referred to in subsection 15(1).

(2)Where there is an agreement governing the embodiment referred to in subsection (1) and that agreement provides for a right to remuneration for the reproduction, performance in public or communication to the public by telecommunication of the cinematographic work, the performer may enforce that right against

(a)the other party to the agreement or, if that party assigns the agreement, the assignee, and

(b)any other person who

(i)owns the copyright in the cinematographic work governing the reproduction of the cinematographic work, its performance in public or its communication to the public by telecommunication, and

(ii)reproduces the cinematographic work, performs it in public or communicates it to the public by telecommunication,

and persons referred to in paragraphs (a) and (b) are jointly and severally liable to the performer in respect of the remuneration relating to that copyright.

(3)Subsection (2) applies only if the performer’s performance is embodied in a prescribed cinematographic work.

(4)If so requested by a country that is a party to the Canada–United States–Mexico Agreement, the Minister may, by a statement published in the Canada Gazette, grant the benefits conferred by this section, subject to any terms and conditions specified in the statement, to performers who are nationals of that country or another country that is a party to that Agreement or are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and whose performer’s performances are embodied in works other than the prescribed cinematographic works referred to in subsection (3).

^note

Moral Rights

17.1Moral rights#

(1)In the cases referred to in subsections 15(2.1) and (2.2), a performer of a live aural performance or a performance fixed in a sound recording has, subject to subsection 28.2(1), the right to the integrity of the performance, and — in connection with an act mentioned in subsection 15(1.1) or one for which the performer has a right to remuneration under section 19 — the right, if it is reasonable in the circumstances, to be associated with the performance as its performer by name or under a pseudonym and the right to remain anonymous.

(2)Moral rights may not be assigned but may be waived in whole or in part.

(3)An assignment of copyright in a performer’s performance does not by itself constitute a waiver of any moral rights.

(4)If a waiver of any moral right is made in favour of an owner or a licensee of a copyright, it may be invoked by any person authorized by the owner or licensee to use the performer’s performance, unless there is an indication to the contrary in the waiver.

^note

17.2Application and term#

(1)Subsection 17.1(1) applies only in respect of a performer’s performance that occurs after the coming into force of that subsection. The moral rights subsist for the same term as the copyright in that performer’s performance.

(2)The moral rights in respect of a performer’s performance pass, on the performer’s death, to

(a)the person to whom those rights are specifically bequeathed;

(b)if there is not a specific bequest of those moral rights and the performer dies testate in respect of the copyright in the performer’s performance, the person to whom that copyright is bequeathed; or

(c)if there is not a person as described in paragraph (a) or (b), the person entitled to any other property in respect of which the performer dies intestate.

(3)Subsection (2) applies, with any modifications that the circumstances require, on the death of any person who holds moral rights.

^note

Rights of Sound Recording Makers

18Copyright in sound recordings#

(1)Subject to subsection (2), the maker of a sound recording has a copyright in the sound recording, consisting of the sole right to do the following in relation to the sound recording or any substantial part thereof:

(a)to publish it for the first time,

(b)to reproduce it in any material form, and

(c)to rent it out,

and to authorize any such acts.

(1.1)Subject to subsections (2.1) and (2.2), a sound recording maker’s copyright in the sound recording also includes the sole right to do the following acts in relation to the sound recording or any substantial part of it and to authorize any of those acts:

(a)to make it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public and to communicate it to the public by telecommunication in that way; and

(b)if it is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the owner of the copyright in the sound recording.

(2)Subsection (1) applies only if

(a)at the time of the first fixation or, if that first fixation was extended over a considerable period, during any substantial part of that period, the maker of the sound recording

(i)was a Canadian citizen or permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act,

(ii)was a citizen or permanent resident of a Berne Convention country, a Rome Convention country, a WPPT country or a country that is a WTO Member, or

(iii)had its headquarters in one of those countries, in the case of a corporation; or

(b)the first publication of the sound recording in a quantity sufficient to satisfy the reasonable demands of the public occurred in any country referred to in paragraph (a).

(2.1)Subsection (1.1) applies if

(a)at the time of the first fixation or, if that first fixation was extended over a considerable period, during any substantial part of that period, the maker of the sound recording

(i)was a Canadian citizen or permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act, or

(ii)had its headquarters in Canada, in the case of a corporation; or

(b)the first publication of the sound recording in a quantity sufficient to satisfy the reasonable demands of the public occurred in Canada.

(2.2)Subsection (1.1) also applies if

(a)at the time of the first fixation or, if that first fixation was extended over a considerable period, during any substantial part of that period, the maker of the sound recording

(i)was a citizen or permanent resident of a WPPT country, or

(ii)had its headquarters in a WPPT country, in the case of a corporation; or

(b)the first publication of the sound recording in a quantity sufficient to satisfy the reasonable demands of the public occurred in a WPPT country.

(3)The first publication is deemed to have occurred in a country referred to in paragraph (2)(a) notwithstanding that it in fact occurred previously elsewhere, if the interval between those two publications does not exceed thirty days.

^note

Provisions Applicable to both Performers and Sound Recording Makers

19Right to remuneration — Canada#

(1)If a sound recording has been published, the performer and maker are entitled, subject to subsection 20(1), to be paid equitable remuneration for its performance in public or its communication to the public by telecommunication, except for a communication in the circumstances referred to in paragraph 15(1.1)(d) or 18(1.1)(a) and any retransmission.

(1.1)If a sound recording has been published, the performer and maker are entitled, subject to subsections 20(1.1) and (2), to be paid equitable remuneration for its performance in public or its communication to the public by telecommunication, except for

(a)a communication in the circumstances referred to in paragraph 15(1.1)(d) or 18(1.1)(a), if the person entitled to the equitable remuneration is entitled to the right referred to in those paragraphs for that communication; and

(b)any retransmission.

(1.2)If a sound recording has been published, the performer and maker are entitled, subject to subsections 20(1.2) and (2.1), to be paid equitable remuneration for its performance in public or its communication to the public by telecommunication, except for a communication in the circumstances referred to in paragraph 15(1.1)(d) or 18(1.1)(a) and any retransmission.

(2)For the purpose of providing the remuneration mentioned in this section, a person who performs a published sound recording in public or communicates it to the public by telecommunication is liable to pay royalties

(a)in the case of a sound recording of a musical work, to the collective society authorized under Part VII.1 to collect them; or

(b)in the case of a sound recording of a literary work or dramatic work, to either the maker of the sound recording or the performer.

(3)The royalties, once paid pursuant to paragraph (2)(a) or (b), shall be divided so that

(a)the performer or performers receive in aggregate fifty per cent; and

(b)the maker or makers receive in aggregate fifty per cent.

^note

19.1Deemed publication — Canada#

Despite subsection 2.2(1), a sound recording that has been made available to the public by telecommunication in a way that allows a member of the public to access it from a place and at a time individually chosen by that member of the public, or that has been communicated to the public by telecommunication in that way, is deemed to have been published for the purposes of subsection 19(1).^note

19.2Deemed publication — WPPT country#

20Conditions — Canada#

(1)The right to remuneration conferred by subsection 19(1) applies only if

(a)the maker was, at the date of the first fixation, a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if a corporation, had its headquarters in Canada; or

(b)all the fixations done for the sound recording occurred in Canada.

(1.1)The right to remuneration conferred by subsection 19(1.1) applies only if

(a)the maker was, at the date of the first fixation, a citizen or permanent resident of a Rome Convention country or, if a corporation, had its headquarters in a Rome Convention country; or

(b)all the fixations done for the sound recording occurred in a Rome Convention country.

(1.2)The right to remuneration conferred by subsection 19(1.2) applies only if

(a)the maker was, at the date of the first fixation, a citizen or permanent resident of a WPPT country or, if a corporation, had its headquarters in a WPPT country; or

(b)all the fixations done for the sound recording occurred in a WPPT country.

(2)Despite subsection (1.1), if the Minister is of the opinion that a Rome Convention country does not grant a right to remuneration, similar in scope and duration to that provided by subsection 19(1.1), for the performance in public or the communication to the public of a sound recording whose maker, at the date of its first fixation, was a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if a corporation, had its headquarters in Canada, the Minister may, by a statement published in the Canada Gazette, limit the scope and duration of the protection for sound recordings whose first fixation is done by a maker who is a citizen or permanent resident of that country or, if a corporation, has its headquarters in that country.

(2.1)Despite subsection (1.2), if the Minister is of the opinion that a WPPT country does not grant a right to remuneration, similar in scope and duration to that provided by subsection 19(1.2), for the performance in public or the communication to the public of a sound recording whose maker, at the date of its first fixation, was a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if a corporation, had its headquarters in Canada, the Minister may, by a statement published in the Canada Gazette, limit the scope and duration of the protection for sound recordings whose first fixation is done by a maker who is a citizen or permanent resident of that country or, if a corporation, has its headquarters in that country.

(3)[Repealed, 2020, c. 1, s. 28] (repealed)

(4)[Repealed, 2020, c. 1, s. 28] (repealed)

^note

Rights of Broadcasters

21Copyright in communication signals#

(1)Subject to subsection (2), a broadcaster has a copyright in the communication signals that it broadcasts, consisting of the sole right to do the following in relation to the communication signal or any substantial part thereof:

(a)to fix it,

(b)to reproduce any fixation of it that was made without the broadcaster’s consent,

(c)to authorize another broadcaster to retransmit it to the public simultaneously with its broadcast, and

(d)in the case of a television communication signal, to perform it in a place open to the public on payment of an entrance fee,

and to authorize any act described in paragraph (a), (b) or (d).

(2)Subsection (1) applies only if the broadcaster

(a)at the time of the broadcast, had its headquarters in Canada, in a country that is a WTO Member or in a Rome Convention country; and

(b)broadcasts the communication signal from that country.

(3)Notwithstanding subsection (2), if the Minister is of the opinion that a Rome Convention country or a country that is a WTO Member does not grant the right mentioned in paragraph (1)(d), the Minister may, by a statement published in the Canada Gazette, declare that broadcasters that have their headquarters in that country are not entitled to that right.

^note

Reciprocity

22Reciprocity#

(1)If the Minister is of the opinion that a country other than a Rome Convention country or a WPPT country grants or has undertaken to grant

(a)to performers and to makers of sound recordings, or

(b)to broadcasters

(c)grant the benefits conferred by this Part

(i)to performers and to makers of sound recordings, or

(ii)to broadcasters

as the case may be, that are citizens, subjects or permanent residents of or, if corporations, have their headquarters in that country, and

(d)declare that that country shall, as regards those benefits, be treated as if it were a country to which this Part extends.

that are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection 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,

(2)If the Minister is of the opinion that a country other than a Rome Convention country or a WPPT country neither grants nor has undertaken to grant

(a)to performers, and to makers of sound recordings, or

(b)to broadcasters

(c)grant the benefits conferred by this Part to performers, makers of sound recordings or broadcasters 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 that those benefits to performers, makers of sound recordings or broadcasters that are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if corporations, have their headquarters in Canada, and

(d)declare that that country shall, as regards those benefits, be treated as if it were a country to which this Part extends.

(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, makers of sound recordings or broadcasters 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.

(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).

^note

Term of Rights

23Term of copyright — performer’s performance#

(1)Subject to this Act, copyright in a performer’s performance subsists until the end of 50 years after the end of the calendar year in which the performance occurs. However,

(a)if the performance is fixed in a sound recording before the copyright expires, the copyright continues until the end of 70 years after the end of the calendar year in which the first fixation of the performance in a sound recording occurs; and

(b)if a sound recording in which the performance is fixed is published before the copyright expires, the copyright continues until the earlier of the end of 75 years after the end of the calendar year in which the first such publication occurs and the end of 100 years after the end of the calendar year in which the first fixation of the performance in a sound recording occurs.

(1.1)Subject to this Act, copyright in a sound recording subsists until the end of 70 years after the end of the calendar year in which the first fixation of the sound recording occurs. However, if the sound recording is published before the copyright expires, the copyright continues until the earlier of the end of 75 years after the end of the calendar year in which the first publication of the sound recording occurs and the end of 100 years after the end of the calendar year in which that first fixation occurs.

(1.2)Subject to this Act, copyright in a communication signal subsists until the end of 50 years after the end of the calendar year in which the communication signal is broadcast.

(2)The rights to remuneration conferred on performers and makers by section 19 have the same terms, respectively, as those provided by subsections (1) and (1.1).

(3)Subsections (1) to (2) apply whether the fixation, performance or broadcast occurred before or after the coming into force of this section.

(4)Where the performer’s performance, sound recording or communication signal meets the requirements set out in section 15, 18 or 21, as the case may be, a country that becomes a Berne Convention country, a Rome Convention country or a WTO Member after the date of the fixation, performance or broadcast is, as of becoming a Berne Convention country, Rome Convention country or WTO Member, as the case may be, deemed to have been such at the date of the fixation, performance or broadcast.

(5)Subsection (4) does not confer any protection in Canada where the term of protection in the country referred to in that subsection had expired before that country became a Berne Convention country, Rome Convention country or WTO Member, as the case may be.

^note

Ownership of Copyright

24Ownership of copyright#

The first owner of the copyright

(a)in a performer’s performance, is the performer;

(b)in a sound recording, is the maker; or

(c)in a communication signal, is the broadcaster that broadcasts it.

^note

25Assignment of rights#

Subsections 13(4) to (7) apply, with such modifications as the circumstances require, in respect of the rights conferred by this Part on performers, makers of sound recordings and broadcasters.^note

Performers’ Rights — WTO Countries

26Performer’s performance in WTO country#

(1)Where a performer’s performance takes place on or after January 1, 1996 in a country that is a WTO Member, the performer has, as of the date of the performer’s performance, a copyright in the performer’s performance, consisting of the sole right to do the following in relation to the performer’s performance or any substantial part thereof:

(a)if it is not fixed, to communicate it to the public by telecommunication and to fix it in a sound recording, and

(b)if it has been fixed in a sound recording without the performer’s authorization, to reproduce the fixation or any substantial part thereof,

and to authorize any such acts.

(2)Where a performer’s performance takes place on or after January 1, 1996 in a country that becomes a WTO Member after the date of the performer’s performance, the performer has the copyright described in subsection (1) as of the date the country becomes a WTO Member.

(3)Where a performer’s performance takes place before January 1, 1996 in a country that is a WTO Member, the performer has, as of January 1, 1996, the sole right to do and to authorize the act described in paragraph (1)(b).

(4)Where a performer’s performance takes place before January 1, 1996 in a country that becomes a WTO Member on or after January 1, 1996, the performer has the right described in subsection (3) as of the date the country becomes a WTO Member.

(5)The rights conferred by this section subsist for the remainder of the calendar year in which the performer’s performance takes place and a period of fifty years following the end of that calendar year.

(6)Subsections 13(4) to (7) apply, with such modifications as the circumstances require, in respect of a performer’s rights conferred by this section.

(7)Notwithstanding an assignment of a performer’s right conferred by this section, the performer, as well as the assignee, may

(a)prevent the reproduction of

(i)any fixation of the performer’s performance, or

(ii)any substantial part of such a fixation,

where the fixation was made without the performer’s consent or the assignee’s consent; and

(b)prevent the importation of any fixation of the performer’s performance, or any reproduction of such a fixation, that the importer knows or ought to have known was made without the performer’s consent or the assignee’s consent.

^note

Part III · Infringement of Copyright and Moral Rights and Exceptions to Infringement

Infringement of Copyright

General

27Infringement generally#

(1)It is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do.

(2)It is an infringement of copyright for any person to

(a)sell or rent out,

(b)distribute to such an extent as to affect prejudicially the owner of the copyright,

(c)by way of trade distribute, expose or offer for sale or rental, or exhibit in public,

(d)possess for the purpose of doing anything referred to in paragraphs (a) to (c), or

(e)import into Canada for the purpose of doing anything referred to in paragraphs (a) to (c),

a copy of a work, sound recording or fixation of a performer’s performance or of a communication signal that the person knows or should have known infringes copyright or would infringe copyright if it had been made in Canada by the person who made it.

(2.1)For greater certainty, a copy made outside Canada does not infringe copyright under subsection (2) if, had it been made in Canada, it would have been made under a limitation or exception under this Act.

(2.11)It is an infringement of copyright for any person, for the purpose of doing anything referred to in paragraphs (2)(a) to (c), to export or attempt to export a copy — of a work, sound recording or fixation of a performer’s performance or of a communication signal — that the person knows or should have known was made without the consent of the owner of the copyright in the country where the copy was made.

(2.12)Subsection (2.11) does not apply with respect to a copy that was made under a limitation or exception under this Act or, if it was made outside Canada, that would have been made under such a limitation or exception had it been made in Canada.

(2.2)It is an infringement of copyright for any person to do any of the following acts with respect to anything that the person knows or should have known is a lesson, as defined in subsection 30.01(1), or a fixation of one:

(a)to sell it or to rent it out;

(b)to distribute it to an extent that the owner of the copyright in the work or other subject-matter that is included in the lesson is prejudicially affected;

(c)by way of trade, to distribute it, expose or offer it for sale or rental or exhibit it in public;

(d)to possess it for the purpose of doing anything referred to in any of paragraphs (a) to (c);

(e)to communicate it by telecommunication to any person other than a person referred to in paragraph 30.01(3)(a); or

(f)to circumvent or contravene any measure taken in conformity with paragraph 30.01(6)(b), (c) or (d).

(2.3)It is an infringement of copyright for a person, by means of the Internet or another digital network, to provide a service primarily for the purpose of enabling acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.

(2.4)In determining whether a person has infringed copyright under subsection (2.3), the court may consider

(a)whether the person expressly or implicitly marketed or promoted the service as one that could be used to enable acts of copyright infringement;

(b)whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement;

(c)whether the service has significant uses other than to enable acts of copyright infringement;

(d)the person’s ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so;

(e)any benefits the person received as a result of enabling the acts of copyright infringement; and

(f)the economic viability of the provision of the service if it were not used to enable acts of copyright infringement.

(3)In determining whether there is an infringement under subsection (2) in the case of an activity referred to in any of paragraphs (2)(a) to (d) in relation to a copy that was imported in the circumstances referred to in paragraph (2)(e), it is irrelevant whether the importer knew or should have known that the importation of the copy infringed copyright.

(4)It is an infringement of copyright for any person to make or possess a plate that has been specifically designed or adapted for the purpose of making infringing copies of a work or other subject-matter.

(5)It is an infringement of copyright for any person, for profit, to permit a theatre or other place of entertainment to be used for the performance in public of a work or other subject-matter without the consent of the owner of the copyright unless that person was not aware, and had no reasonable ground for suspecting, that the performance would be an infringement of copyright.

^note

Parallel Importation of Books

27.1Importation of books#

(1)Subject to any regulations made under subsection (6), it is an infringement of copyright in a book for any person to import the book where

(a)copies of the book were made with the consent of the owner of the copyright in the book in the country where the copies were made, but were imported without the consent of the owner of the copyright in the book in Canada; and

(b)the person knows or should have known that the book would infringe copyright if it was made in Canada by the importer.

(2)Subject to any regulations made under subsection (6), where the circumstances described in paragraph (1)(a) exist, it is an infringement of copyright in an imported book for any person who knew or should have known that the book would infringe copyright if it was made in Canada by the importer to

(a)sell or rent out the book;

(b)by way of trade, distribute, expose or offer for sale or rental, or exhibit in public, the book; or

(c)possess the book for the purpose of any of the activities referred to in paragraph (a) or (b).

(3)Subsections (1) and (2) only apply where there is an exclusive distributor of the book and the acts described in those subsections take place in the part of Canada or in respect of the particular sector of the market for which the person is the exclusive distributor.

(4)An exclusive distributor is deemed, for the purposes of entitlement to any of the remedies under Part IV in relation to an infringement under this section, to derive an interest in the copyright in question by licence.

(5)No exclusive distributor, copyright owner or exclusive licensee is entitled to a remedy under Part IV in relation to an infringement under this section unless, before the infringement occurred, notice has been given within the prescribed time and in the prescribed manner to the person referred to in subsection (1) or (2), as the case may be, that there is an exclusive distributor of the book.

(6)The Governor in Council may, by regulation, establish terms and conditions for the importation of certain categories of books, including remaindered books, books intended solely for re-export and books imported by special order.

^note

28 #

[Repealed, 1997, c. 24, s. 15] (repealed)

28.01 #

[Repealed, 1997, c. 24, s. 16] (repealed)

28.02 and 28.03 #

[Repealed, 1997, c. 24, s. 17] (repealed)

Moral Rights Infringement

28.1Infringement generally#

Any act or omission that is contrary to any of the moral rights of the author of a work or of the performer of a performer’s performance is, in the absence of the author’s or performer’s consent, an infringement of those rights.^note

28.2Nature of right of integrity#

(1)The author’s or performer’s right to the integrity of a work or performer’s performance is infringed only if the work or the performance is, to the prejudice of its author’s or performer’s honour or reputation,

(a)distorted, mutilated or otherwise modified; or

(b)used in association with a product, service, cause or institution.

(2)In the case of a painting, sculpture or engraving, the prejudice referred to in subsection (1) shall be deemed to have occurred as a result of any distortion, mutilation or other modification of the work.

(3)For the purposes of this section,

(a)a change in the location of a work, the physical means by which a work is exposed or the physical structure containing a work, or

(b)steps taken in good faith to restore or preserve the work

shall not, by that act alone, constitute a distortion, mutilation or other modification of the work.

^note

Exceptions

Fair Dealing

29Research, private study, etc.#

Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.^note

29.1Criticism or review#

Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:

(a)the source; and

(b)if given in the source, the name of the

(i)author, in the case of a work,

(ii)performer, in the case of a performer’s performance,

(iii)maker, in the case of a sound recording, or

(iv)broadcaster, in the case of a communication signal.

^note

29.2News reporting#

Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned:

(a)the source; and

(b)if given in the source, the name of the

(i)author, in the case of a work,

(ii)performer, in the case of a performer’s performance,

(iii)maker, in the case of a sound recording, or

(iv)broadcaster, in the case of a communication signal.

^note

Non-commercial User-generated Content

29.21Non-commercial user-generated content#

(1)It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if

(a)the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes;

(b)the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so;

(c)the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and

(d)the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.

(2)The following definitions apply in subsection (1).

intermediary means a person or entity who regularly provides space or means for works or other subject-matter to be enjoyed by the public. (intermédiaire)

use means to do anything that by this Act the owner of the copyright has the sole right to do, other than the right to authorize anything. (utiliser)

^note

Reproduction for Private Purposes

29.22Reproduction for private purposes#

(1)It is not an infringement of copyright for an individual to reproduce a work or other subject-matter or any substantial part of a work or other subject-matter if

(a)the copy of the work or other subject-matter from which the reproduction is made is not an infringing copy;

(b)the individual legally obtained the copy of the work or other subject-matter from which the reproduction is made, other than by borrowing it or renting it, and owns or is authorized to use the medium or device on which it is reproduced;

(c)the individual, in order to make the reproduction, did not circumvent, as defined in section 41, a technological protection measure, as defined in that section, or cause one to be circumvented;

(d)the individual does not give the reproduction away; and

(e)the reproduction is used only for the individual’s private purposes.

(2)For the purposes of paragraph (1)(b), a medium or device includes digital memory in which a work or subject-matter may be stored for the purpose of allowing the telecommunication of the work or other subject-matter through the Internet or other digital network.

(3)In the case of a work or other subject-matter that is a musical work embodied in a sound recording, a performer’s performance of a musical work embodied in a sound recording or a sound recording in which a musical work or a performer’s performance of a musical work is embodied, subsection (1) does not apply if the reproduction is made onto an audio recording medium as defined in section 79.

(4)Subsection (1) does not apply if the individual gives away, rents or sells the copy of the work or other subject-matter from which the reproduction is made without first destroying all reproductions of that copy that the individual has made under that subsection.

^note

Fixing Signals and Recording Programs for Later Listening or Viewing

29.23Reproduction for later listening or viewing#

(1)It is not an infringement of copyright for an individual to fix a communication signal, to reproduce a work or sound recording that is being broadcast or to fix or reproduce a performer’s performance that is being broadcast, in order to record a program for the purpose of listening to or viewing it later, if

(a)the individual receives the program legally;

(b)the individual, in order to record the program, did not circumvent, as defined in section 41, a technological protection measure, as defined in that section, or cause one to be circumvented;

(c)the individual makes no more than one recording of the program;

(d)the individual keeps the recording no longer than is reasonably necessary in order to listen to or view the program at a more convenient time;

(e)the individual does not give the recording away; and

(f)the recording is used only for the individual’s private purposes.

(2)Subsection (1) does not apply if the individual receives the work, performer’s performance or sound recording under an on-demand service.

(3)The following definitions apply in this section.

broadcast means any transmission of a work or other subject-matter by telecommunication for reception by the public, but does not include a transmission that is made solely for performance in public. (radiodiffusion)

on-demand service means a service that allows a person to receive works, performer’s performances and sound recordings at times of their choosing. (service sur demande)

^note

Backup Copies

29.24Backup copies#

(1)It is not an infringement of copyright in a work or other subject-matter for a person who owns — or has a licence to use — a copy of the work or subject-matter (in this section referred to as the “source copy”) to reproduce the source copy if

(a)the person does so solely for backup purposes in case the source copy is lost, damaged or otherwise rendered unusable;

(b)the source copy is not an infringing copy;

(c)the person, in order to make the reproduction, did not circumvent, as defined in section 41, a technological protection measure, as defined in that section, or cause one to be circumvented; and

(d)the person does not give any of the reproductions away.

(2)If the source copy is lost, damaged or otherwise rendered unusable, one of the reproductions made under subsection (1) becomes the source copy.

(3)The person shall immediately destroy all reproductions made under subsection (1) after the person ceases to own, or to have a licence to use, the source copy.

^note

Acts Undertaken without Motive of Gain

29.3Motive of gain#

(1)No action referred to in section 29.4, 29.5, 30.2 or 30.21 may be carried out with motive of gain.

(2)An educational institution, library, archive or museum, or person acting under its authority does not have a motive of gain where it or the person acting under its authority, does anything referred to in section 29.4, 29.5, 30.2 or 30.21 and recovers no more than the costs, including overhead costs, associated with doing that act.

^note

Educational Institutions

29.4Reproduction for instruction#

(1)It is not an infringement of copyright for an educational institution or a person acting under its authority for the purposes of education or training on its premises to reproduce a work, or do any other necessary act, in order to display it.

(2)It is not an infringement of copyright for an educational institution or a person acting under its authority to

(a)reproduce, translate or perform in public on the premises of the educational institution, or

(b)communicate by telecommunication to the public situated on the premises of the educational institution

a work or other subject-matter as required for a test or examination.

(3)Except in the case of manual reproduction, the exemption from copyright infringement provided by subsections (1) and (2) does not apply if the work or other subject-matter is commercially available, within the meaning of paragraph (a) of the definition commercially available in section 2, in a medium that is appropriate for the purposes referred to in those subsections.

^note

29.5Performances#

It is not an infringement of copyright for an educational institution or a person acting under its authority to do the following acts if they are done on the premises of an educational institution for educational or training purposes and not for profit, before an audience consisting primarily of students of the educational institution, instructors acting under the authority of the educational institution or any person who is directly responsible for setting a curriculum for the educational institution:

(a)the live performance in public, primarily by students of the educational institution, of a work;

(b)the performance in public of a sound recording, or of a work or performer’s performance that is embodied in a sound recording, as long as the sound recording is not an infringing copy or the person responsible for the performance has no reasonable grounds to believe that it is an infringing copy;

(c)the performance in public of a work or other subject-matter at the time of its communication to the public by telecommunication; and

(d)the performance in public of a cinematographic work, as long as the work is not an infringing copy or the person responsible for the performance has no reasonable grounds to believe that it is an infringing copy.

^note

29.6News and commentary#

(1)It is not an infringement of copyright for an educational institution or a person acting under its authority to

(a)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

(b)perform the copy in public before an audience consisting primarily of students of the educational institution on its premises for educational or training purposes.

(2)[Repealed, 2012, c. 20, s. 25] (repealed)

^note

29.7Reproduction of broadcast#

(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

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

(b)keep the copy for up to thirty days to decide whether to perform the copy for educational or training purposes.

(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.

(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.

^note

29.8Unlawful reception#

The exceptions to infringement of copyright provided for under sections 29.5 to 29.7 do not apply where the communication to the public by telecommunication was received by unlawful means.^note

29.9Records and marking#

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

(a)[Repealed, 2012, c. 20, s. 26] (repealed)

(b)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.

(2)The Board may, with the approval of the Governor in Council, make regulations

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

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

(c)respecting the sending of information to collective societies that carry on the business of collecting royalties referred to in subsection 29.7(2) or (3).

^note

30Literary collections#

The publication in a collection, mainly composed of non-copyright matter, intended for the use of educational institutions, and so described in the title and in any advertisements issued by the publisher, of short passages from published literary works in which copyright subsists and not themselves published for the use of educational institutions, does not infringe copyright in those published literary works if

(a)not more than two passages from works by the same author are published by the same publisher within five years;

(b)the source from which the passages are taken is acknowledged; and

(c)the name of the author, if given in the source, is mentioned.

^note

30.01Meaning of lesson#

(1)For the purposes of this section, lesson means a lesson, test or examination, or part of one, in which, or during the course of which, an act is done in respect of a work or other subject-matter by an educational institution or a person acting under its authority that would otherwise be an infringement of copyright but is permitted under a limitation or exception under this Act.

(2)This section does not apply so as to permit any act referred to in paragraph (3)(a), (b) or (c) with respect to a work or other subject-matter whose use in the lesson constitutes an infringement of copyright or for whose use in the lesson the consent of the copyright owner is required.

(3)Subject to subsection (6), it is not an infringement of copyright for an educational institution or a person acting under its authority

(a)to communicate a lesson to the public by telecommunication for educational or training purposes, if that public consists only of students who are enrolled in a course of which the lesson forms a part or of other persons acting under the authority of the educational institution;

(b)to make a fixation of the lesson for the purpose of the act referred to in paragraph (a); or

(c)to do any other act that is necessary for the purpose of the acts referred to in paragraphs (a) and (b).

(4)A student who is enrolled in a course of which the lesson forms a part is deemed to be a person on the premises of the educational institution when the student participates in or receives the lesson by means of communication by telecommunication under paragraph (3)(a).

(5)It is not an infringement of copyright for a student who has received a lesson by means of communication by telecommunication under paragraph (3)(a) to reproduce the lesson in order to be able to listen to or view it at a more convenient time. However, the student shall destroy the reproduction within 30 days after the day on which the students who are enrolled in the course to which the lesson relates have received their final course evaluations.

(6)The educational institution and any person acting under its authority, except a student, shall

(a)destroy any fixation of the lesson within 30 days after the day on which the students who are enrolled in the course to which the lesson relates have received their final course evaluations;

(b)take measures that can reasonably be expected to limit the communication by telecommunication of the lesson to the persons referred to in paragraph (3)(a);

(c)take, in relation to the communication by telecommunication of the lesson in digital form, measures that can reasonably be expected to prevent the students from fixing, reproducing or communicating the lesson other than as they may do under this section; and

(d)take, in relation to a communication by telecommunication in digital form, any measure prescribed by regulation.

^note

30.02Exception — digital reproduction of works#

(1)Subject to subsections (3) to (5), it is not an infringement of copyright for an educational institution that has a reprographic reproduction licence under which the institution is authorized to make reprographic reproductions of works in a collective society’s repertoire for an educational or training purpose

(a)to make a digital reproduction — of the same general nature and extent as the reprographic reproduction authorized under the licence — of a paper form of any of those works;

(b)to communicate the digital reproduction by telecommunication for an educational or training purpose to persons acting under the authority of the institution; or

(c)to do any other act that is necessary for the purpose of the acts referred to in paragraphs (a) and (b).

(2)Subject to subsections (3) to (5), it is not an infringement of copyright for a person acting under the authority of the educational institution to whom the work has been communicated under paragraph (1)(b) to print one copy of the work.

(3)An educational institution that makes a digital reproduction of a work under paragraph (1)(a) shall

(a)pay to the collective society, with respect to all the persons to whom the digital reproduction is communicated by the institution under paragraph (1)(b), the royalties that would be payable if one reprographic reproduction were distributed by the institution to each of those persons, and comply with the licence terms and conditions applicable to a reprographic reproduction to the extent that they are reasonably applicable to a digital reproduction;

(b)take measures to prevent the digital reproduction from being communicated by telecommunication to any persons who are not acting under the authority of the institution;

(c)take measures to prevent a person to whom the work has been communicated under paragraph (1)(b) from printing more than one copy, and to prevent any other reproduction or communication of the digital reproduction; and

(d)take any measure prescribed by regulation.

(4)An educational institution may not make a digital reproduction of a work under paragraph (1)(a) if

(a)the institution has entered into a digital reproduction agreement respecting the work with a collective society under which the institution may make a digital reproduction of the work, may communicate the digital reproduction by telecommunication to persons acting under the authority of the institution and may permit those persons to print at least one copy of the work;

(b)there is a tariff approved under section 70 that is applicable to the digital reproduction of the work, to the communication of the digital reproduction by telecommunication to persons acting under the authority of the institution and to the printing by those persons of at least one copy of the work; or

(c)the institution has been informed by the collective society that is authorized to enter into reprographic agreements with respect to the work that the owner of the copyright in the work has informed it, under subsection (5), that the owner refuses to authorize the collective society to enter into a digital reproduction agreement with respect to the work.

(5)If the owner of the copyright in a work informs the collective society that is authorized to enter into reprographic agreements with respect to the work that the owner refuses to authorize it to enter into digital reproduction agreements with respect to the work, the collective society shall inform the educational institutions with which it has entered into reprographic reproduction agreements with respect to the work that they are not permitted to make digital reproductions under subsection (1).

(6)The owner of the copyright in a work who, in respect of the work, has authorized a collective society to enter into a reprographic reproduction agreement with an educational institution is deemed to have authorized the society to enter into a digital reproduction agreement with the institution — subject to the same restrictions as a reprographic reproduction agreement — unless the owner has refused to give this authorization under subsection (5) or has authorized another collective society to enter into a digital reproduction agreement with respect to the work.

(7)In proceedings against an educational institution for making a digital reproduction of a paper form of a work, or for communicating such a reproduction by telecommunication for an educational or training purpose to persons acting under the authority of the institution, the owner of the copyright in the work may not recover an amount more than

(a)in the case where there is a digital reproduction licence that meets the conditions described in paragraph (4)(a) in respect of the work — or, if none exists in respect of the work, in respect of a work of the same category — the amount of royalties that would be payable under that licence in respect of those acts or, if there is more than one applicable licence, the greatest amount of royalties payable under any of those licences; and

(b)in the case where there is no licence described in paragraph (a) but there is a reprographic reproduction licence in respect of the work — or, if none exists in respect of the work, in respect of a work of the same category — the amount of royalties that would be payable under that licence in respect of those acts or, if there is more than one applicable licence, the greatest amount of royalties payable under any of those licences.

(8)The owner of the copyright in a work may not recover any damages against a person acting under the authority of the educational institution who, in respect of a digital reproduction of the work that is communicated to the person by telecommunication, prints one copy of the work if, at the time of the printing, it was reasonable for the person to believe that the communication was made in accordance with paragraph (1)(b).

^note

30.03Royalties — digital reproduction agreement#

(1)If an educational institution has paid royalties to a collective society for the digital reproduction of a work under paragraph 30.02(3)(a) and afterwards the institution enters into a digital reproduction agreement described in paragraph 30.02(4)(a) with any collective society,

(a)in the case where the institution would — under that digital reproduction agreement — pay a greater amount of royalties for the digital reproduction of that work than what was payable under paragraph 30.02(3)(a), the institution shall pay to the collective society to which it paid royalties under that paragraph the difference between

(i)the amount of royalties that the institution would have had to pay for the digital reproduction of that work if the agreement had been entered into on the day on which the institution first made a digital reproduction under paragraph 30.02(1)(a), and

(ii)the amount of royalties that the institution paid to the society under paragraph 30.02(3)(a) for the digital reproduction of that work from the day on which that paragraph comes into force until the day on which they enter into the digital reproduction agreement; and

(b)in the case where the institution would — under that digital reproduction agreement — pay a lesser amount of royalties for the digital reproduction of that work than what was payable under paragraph 30.02(3)(a), the collective society to which the institution paid royalties under that paragraph shall pay to the institution the difference between

(i)the amount of royalties that the institution paid to the society under paragraph 30.02(3)(a) for the digital reproduction of that work from the day on which that paragraph comes into force until the day on which they enter into the digital reproduction agreement, and

(ii)the amount of royalties that the institution would have had to pay for the digital reproduction of that work if the agreement had been entered into on the day on which the institution first made a digital reproduction under paragraph 30.02(1)(a).

(2)If an educational institution has paid royalties to a collective society for the digital reproduction of a work under paragraph 30.02(3)(a) and afterwards a tariff applies to the digital reproduction of that work under paragraph 30.02(4)(b),

(a)in the case where the institution would — under the tariff — pay a greater amount of royalties for the digital reproduction of that work than what was payable under paragraph 30.02(3)(a), the institution shall pay to the collective society to which it paid royalties under that paragraph the difference between

(i)the amount of royalties that the institution would have had to pay for the digital reproduction of that work if the tariff had been approved on the day on which the institution first made a digital reproduction under paragraph 30.02(1)(a), and

(b)in the case where the institution would — under the tariff — pay a lesser amount of royalties for the digital reproduction of that work than what was payable under paragraph 30.02(3)(a), the collective society to which the institution paid royalties under that paragraph shall pay to the institution the difference between

(ii)the amount of royalties that the institution would have had to pay for the digital reproduction of that work if the tariff had been approved on the day on which the institution first made a digital reproduction under paragraph 30.02(1)(a).

^note

30.04Work available through Internet#

(1)Subject to subsections (2) to (5), it is not an infringement of copyright for an educational institution, or a person acting under the authority of one, to do any of the following acts for educational or training purposes in respect of a work or other subject-matter that is available through the Internet:

(a)reproduce it;

(b)communicate it to the public by telecommunication, if that public primarily consists of students of the educational institution or other persons acting under its authority;

(c)perform it in public, if that public primarily consists of students of the educational institution or other persons acting under its authority; or

(d)do any other act that is necessary for the purpose of the acts referred to in paragraphs (a) to (c).

(2)Subsection (1) does not apply unless the educational institution or person acting under its authority, in doing any of the acts described in that subsection in respect of the work or other subject-matter, mentions the following:

(a)the source; and

(b)if given in the source, the name of

(i)the author, in the case of a work,

(ii)the performer, in the case of a performer’s performance,

(iii)the maker, in the case of a sound recording, and

(iv)the broadcaster, in the case of a communication signal.

(3)Subsection (1) does not apply if the work or other subject-matter — or the Internet site where it is posted — is protected by a technological protection measure that restricts access to the work or other subject-matter or to the Internet site.

(4)Subsection (1) does not permit a person to do any act described in that subsection in respect of a work or other subject-matter if

(a)that work or other subject-matter — or the Internet site where it is posted — is protected by a technological protection measure that restricts the doing of that act; or

(b)a clearly visible notice — and not merely the copyright symbol — prohibiting that act is posted at the Internet site where the work or other subject-matter is posted or on the work or other subject-matter itself.

(5)Subsection (1) does not apply if the educational institution or person acting under its authority knows or should have known that the work or other subject-matter was made available through the Internet without the consent of the copyright owner.

(6)The Governor in Council may make regulations for the purposes of paragraph (4)(b) prescribing what constitutes a clearly visible notice.

^note

Libraries, Archives and Museums

30.1Management and maintenance of collection#

(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, 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

(a)if the original is rare or unpublished and is

(i)deteriorating, damaged or lost, or

(ii)at risk of deterioration or becoming damaged or lost;

(b)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;

(c)in an alternative format if the library, archive or museum or a person acting under the authority of the library, archive or museum considers that the original is currently in a format that is obsolete or is becoming obsolete, or that the technology required to use the original is unavailable or is becoming unavailable;

(d)for the purposes of internal record-keeping and cataloguing;

(e)for insurance purposes or police investigations; or

(f)if necessary for restoration.

(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).

(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.

(4)The Governor in Council may make regulations with respect to the procedure for making copies under subsection (1).

^note

30.2Research or private study#

(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.

(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

(a)a scholarly, scientific or technical periodical; or

(b)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.

(3)Paragraph (2)(b) does not apply in respect of a work of fiction or poetry or a dramatic or musical work.

(4)A library, archive or museum may provide the person for whom the copy is made under subsection (2) with the copy only on the condition that

(a)the person is provided with a single copy of the work; and

(b)the library, archive or museum informs the person that the copy is to be used solely for research or private study and that any use of the copy for a purpose other than research or private study may require the authorization of the copyright owner of the work in question.

(5)Subject to subsection (5.02), a library, archive or museum, or a person acting under the authority of one, may do, on behalf of a patron of another library, archive or museum, anything under subsection (1) or (2) that it is authorized by this section to do on behalf of one of its own patrons.

(5.01)For the purpose of subsection (5), the making of a copy of a work other than by reprographic reproduction is deemed to be a making of a copy of the work that may be done under subsection (2).

(5.02)A library, archive or museum, or a person acting under the authority of one, may, under subsection (5), provide a copy in digital form to a person who has requested it through another library, archive or museum if the providing library, archive or museum or person takes measures to prevent the person who has requested it from

(a)making any reproduction of the digital copy, including any paper copies, other than printing one copy of it;

(b)communicating the digital copy to any other person; and

(c)using the digital copy for more than five business days from the day on which the person first uses it.

(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.

(6)The Governor in Council may, for the purposes of this section, make regulations

(a)defining “newspaper” and “periodical”;

(b)defining scholarly, scientific and technical periodicals;

(c)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

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

^note

30.21Copying works deposited in archive#

(1)Subject to subsections (3) and (3.1), it is not an infringement of copyright for an archive to make, for any person requesting to use the copy for research or private study, a copy of an unpublished work that is deposited in the archive and provide the person with it.

(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.

(3)The archive may copy the work only on the condition that

(a)the person who deposited the work, if a copyright owner, did not, at the time the work was deposited, prohibit its copying; and

(b)copying has not been prohibited by any other owner of copyright in the work.

(3.1)The archive may provide the person for whom a copy is made under subsection (1) with the copy only on the condition that

(a)the person is provided with a single copy of the work; and

(b)the archive informs the person that the copy is to be used solely for research or private study and that any use of the copy for a purpose other than research or private study may require the authorization of the copyright owner of the work in question.

(4)The Governor in Council may prescribe by regulation the manner and form in which the conditions set out in subsections (3) and (3.1) may be met.

(5) to (7)[Repealed, 2004, c. 11, s. 21] (repealed)

^note

Machines Installed in Educational Institutions, Libraries, Archives and Museums

30.3No infringement by educational institution, etc.#

(1)An educational institution or a library, archive or museum does not infringe copyright where

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

(b)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

(c)there is affixed in the prescribed manner and location a notice warning of infringement of copyright.

(2)Subsection (1) only applies if, in respect of a reprographic reproduction,

(a)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;

(b)the Board has, in accordance with subsection 71(2), fixed the royalty rates and related terms and conditions;

(c)a tariff has been approved in accordance with section 70; or

(d)a collective society has filed a proposed tariff in accordance with section 68.

(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.

(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.

(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.

^note

Libraries, Archives and Museums in Educational Institutions

30.4Application to libraries, etc. within educational institutions#

For greater certainty, the exceptions to infringement of copyright provided for under sections 29.4 to 30.3 and 45 also apply in respect of a library, archive or museum that forms part of an educational institution.^note

Library and Archives of Canada

30.5Permitted acts#

It is not an infringement of copyright for the Librarian and Archivist of Canada under the Library and Archives of Canada Act, to

(a)make a copy of a work or other subject-matter in taking a representative sample for the purpose of preservation under subsection 8(2) of that Act;

(b)effect the fixation of a copy of a publication, as defined in section 2 of that Act, that is provided by telecommunication in accordance with subsection 10(1) of that Act;

(c)make a copy of a recording, as defined in subsection 11(2) of that Act, for the purposes of section 11 of that Act; or

(d)at the time that a broadcasting undertaking, as defined in subsection 2(1) of the Broadcasting Act, communicates a work or other subject-matter to the public by telecommunication, make a copy of the work or other subject-matter that is included in that communication.

^note

Computer Programs

30.6Permitted acts#

It is not an infringement of copyright in a computer program for a person who owns a copy of the computer program that is authorized by the owner of the copyright, or has a licence to use a copy of the computer program, to

(a)reproduce the copy by adapting, modifying or converting it, or translating it into another computer language, if the person proves that the reproduced copy

(i)is essential for the compatibility of the computer program with a particular computer,

(ii)is solely for the person’s own use, and

(iii)was destroyed immediately after the person ceased to be the owner of the copy of the computer program or to have a licence to use it; or

(b)reproduce for backup purposes the copy or a reproduced copy referred to in paragraph (a) if the person proves that the reproduction for backup purposes was destroyed immediately after the person ceased to be the owner of the copy of the computer program or to have a licence to use it.

^note

30.61Interoperability of computer programs#

(1)It is not an infringement of copyright in a computer program for a person who owns a copy of the computer program that is authorized by the owner of the copyright, or has a licence to use a copy of the computer program, to reproduce the copy if

(a)they reproduce the copy for the sole purpose of obtaining information that would allow the person to make the program and another computer program interoperable; and

(b)they do not use or disclose that information, except as necessary to make the program and another computer program interoperable or to assess that interoperability.

(2)In the case where that information is used or disclosed as necessary to make another computer program interoperable with the program, subsection (1) applies even if the other computer program incorporates the information and is then sold, rented or otherwise distributed.

^note

Encryption Research

30.62Encryption research#

(1)Subject to subsections (2) and (3), it is not an infringement of copyright for a person to reproduce a work or other subject-matter for the purposes of encryption research if

(a)it would not be practical to carry out the research without making the copy;

(b)the person has lawfully obtained the work or other subject-matter; and

(c)the person has informed the owner of the copyright in the work or other subject-matter.

(2)Subsection (1) does not apply if the person uses or discloses information obtained through the research to commit an act that is an offence under the Criminal Code.

(3)Subsection (1) applies with respect to a computer program only if, in the event that the research reveals a vulnerability or a security flaw in the program and the person intends to make the vulnerability or security flaw public, the person gives adequate notice of the vulnerability or security flaw and of their intention to the owner of copyright in the program. However, the person need not give that adequate notice if, in the circumstances, the public interest in having the vulnerability or security flaw made public without adequate notice outweighs the owner’s interest in receiving that notice.

^note

Security

30.63Security#

(1)Subject to subsections (2) and (3), it is not an infringement of copyright for a person to reproduce a work or other subject-matter for the sole purpose, with the consent of the owner or administrator of a computer, computer system or computer network, of assessing the vulnerability of the computer, system or network or of correcting any security flaws.

(2)Subsection (1) does not apply if the person uses or discloses information obtained through the assessment or correction to commit an act that is an offence under the Criminal Code.

(3)Subsection (1) applies with respect to a computer program only if, in the event that the assessment or correction reveals a vulnerability or a security flaw in the program and the person intends to make the vulnerability or security flaw public, the person gives adequate notice of the vulnerability or security flaw and of their intention to the owner of copyright in the program. However, the person need not give that adequate notice if, in the circumstances, the public interest in having the vulnerability or security flaw made public without adequate notice outweighs the owner’s interest in receiving that notice.

^note

Incidental Inclusion

30.7Incidental use#

It is not an infringement of copyright to incidentally and not deliberately

(a)include a work or other subject-matter in another work or other subject-matter; or

(b)do any act in relation to a work or other subject-matter that is incidentally and not deliberately included in another work or other subject-matter.

^note

Temporary Reproductions for Technological Processes

30.71Temporary reproductions#

It is not an infringement of copyright to make a reproduction of a work or other subject-matter if

(a)the reproduction forms an essential part of a technological process;

(b)the reproduction’s only purpose is to facilitate a use that is not an infringement of copyright; and

(c)the reproduction exists only for the duration of the technological process.

^note

Ephemeral Recordings

30.8Ephemeral recordings#

(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

(a)is authorized to communicate the performer’s performance, work or sound recording to the public by telecommunication;

(b)makes the fixation or the reproduction itself, for its own broadcasts;

(c)does not synchronize the fixation or reproduction with all or part of another recording, performer’s performance or work; and

(d)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.

(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.

(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.

(4)The programming undertaking must destroy the fixation or reproduction within thirty days after making it, unless

(a)the copyright owner authorizes its retention; or

(b)it is deposited in an archive, in accordance with subsection (6).

(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.

(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.

(7)In subsection (6), official archive means the Library and Archives of Canada or any archive established under the law of a province for the preservation of the official archives of the province.

(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.

(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.

(10)The reproduction and communication to the public by telecommunication must be made

(a)in accordance with subsections (2) to (6); and

(b)within thirty days after the day on which the programming undertaking made the fixation or reproduction.

(11)In this section, programming undertaking means

(a)a programming undertaking, as defined in subsection 2(1) of the Broadcasting Act, that is carried on lawfully under that Act;

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

(c)a distribution undertaking, as defined in subsection 2(1) of the Broadcasting Act, that is carried on lawfully under that Act, in respect of the programs that it originates.

For greater certainty, it does not include an online undertaking, as defined in subsection 2(1) of the Broadcasting Act.

^note

30.9Ephemeral recordings — broadcasting undertaking#

(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 their broadcasting, if the undertaking

(a)owns the copy of the sound recording, performer’s performance or work and that copy is authorized by the owner of the copyright, or has a licence to use the copy;

(b)is authorized to communicate the sound recording, performer’s performance or work to the public by telecommunication;

(c)makes the reproduction itself, for its own broadcasts;

(d)does not synchronize the reproduction with all or part of another recording, performer’s performance or work; and

(e)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.

(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.

(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.

(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 its licence to use the sound recording, performer’s performance or work expires, or at the latest within 30 days after making the reproduction, unless the copyright owner authorizes the reproduction to be retained.

(5)If the copyright owner authorizes the reproduction to be retained, the broadcasting undertaking must pay any applicable royalty.

(6)[Repealed, 2012, c. 20, s. 34] (repealed)

(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. For greater certainty, it does not include an online undertaking, as defined in that subsection 2(1).

^note

Retransmission

31Interpretation#

(1)In this section,

new media retransmitter means a person whose retransmission would be lawful under the Broadcasting Act — as that Act read immediately before the day on which section 31.1 of that Act comes into force — only by reason of the Exemption order for digital media broadcasting undertakings, issued by the Canadian Radio-television and Telecommunications Commission as the appendix to Broadcasting Order CRTC 2012-409, as it read immediately before that day; (retransmetteur de nouveaux médias)

retransmitter means a person who performs a function comparable to that of a cable retransmission system, but does not include a new media retransmitter; (retransmetteur)

signal means a signal that carries a literary, dramatic, musical or artistic work and is transmitted for free reception by the public by a terrestrial radio or terrestrial television station. (signal)

(2)It is not an infringement of copyright for a retransmitter to communicate to the public by telecommunication any literary, dramatic, musical or artistic work if

(a)the communication is a retransmission of a local or distant signal;

(b)the retransmission is lawful under the Broadcasting Act;

(c)the signal is retransmitted simultaneously and without alteration, except as otherwise required or permitted by or under the laws of Canada;

(d)in the case of the retransmission of a distant signal, the retransmitter has paid any royalties, and complied with any terms and conditions, fixed under this Act; and

(e)the retransmitter complies with the applicable conditions, if any, referred to in paragraph (3)(b).

(3)The Governor in Council may make regulations

(a)defining “local signal” and “distant signal” for the purposes of subsection (2); and

(b)prescribing conditions for the purposes of paragraph (2)(e), and specifying whether any such condition applies to all retransmitters or only to a class of retransmitter.

Network Services

31.1Network services#

(1)A person who, in providing services related to the operation of the Internet or another digital network, provides any means for the telecommunication or the reproduction of a work or other subject-matter through the Internet or that other network does not, solely by reason of providing those means, infringe copyright in that work or other subject-matter.

(2)Subject to subsection (3), a person referred to in subsection (1) who caches the work or other subject-matter, or does any similar act in relation to it, to make the telecommunication more efficient does not, by virtue of that act alone, infringe copyright in the work or other subject-matter.

(3)Subsection (2) does not apply unless the person, in respect of the work or other subject-matter,

(a)does not modify it, other than for technical reasons;

(b)ensures that any directions related to its caching or the doing of any similar act, as the case may be, that are specified in a manner consistent with industry practice by whoever made it available for telecommunication through the Internet or another digital network, and that lend themselves to automated reading and execution, are read and executed; and

(c)does not interfere with the use of technology that is lawful and consistent with industry practice in order to obtain data on the use of the work or other subject-matter.

(4)Subject to subsection (5), a person who, for the purpose of allowing the telecommunication of a work or other subject-matter through the Internet or another digital network, provides digital memory in which another person stores the work or other subject-matter does not, by virtue of that act alone, infringe copyright in the work or other subject-matter.

(5)Subsection (4) does not apply in respect of a work or other subject-matter if the person providing the digital memory knows of a decision of a court of competent jurisdiction to the effect that the person who has stored the work or other subject-matter in the digital memory infringes copyright by making the copy of the work or other subject-matter that is stored or by the way in which he or she uses the work or other subject-matter.

(6)Subsections (1), (2) and (4) do not apply in relation to an act that constitutes an infringement of copyright under subsection 27(2.3).

^note

Persons with Perceptual Disabilities

32Reproduction in alternate format#

(1)It is not an infringement of copyright for a person with a perceptual disability, for a person acting at the request of such a person or for a non-profit organization acting for the benefit of such a person to

(a)reproduce a literary, musical, artistic or dramatic work, other than a cinematographic work, in a format specially designed for persons with a perceptual disability;

(a.1)fix a performer’s performance of a literary, musical, artistic or dramatic work, other than a cinematographic work, in a format specially designed for persons with a perceptual disability;

(a.2)reproduce a sound recording, or a fixation of a performer’s performance referred to in paragraph (a.1), in a format specially designed for persons with a perceptual disability;

(b)translate, adapt or reproduce in sign language a literary or dramatic work, other than a cinematographic work, in a format specially designed for persons with a perceptual disability;

(b.1)provide a person with a perceptual disability with, or provide such a person with access to, a work or other subject-matter to which any of paragraphs (a) to (b) applies, in a format specially designed for persons with a perceptual disability, and do any other act that is necessary for that purpose; or

(c)perform in public a literary or dramatic work, other than a cinematographic work, in sign language, either live or in a format specially designed for persons with a perceptual disability.

(2)Subsection (1) does not apply if the work or other subject-matter is commercially available, within the meaning of paragraph (a) of the definition commercially available in section 2, in a format specially designed to meet the needs of the person with a perceptual disability referred to in that subsection.

(3)[Repealed, 2016, c. 4, s. 1] (repealed)

^note

32.01Print disability — outside Canada#

(1)Subject to this section, it is not an infringement of copyright for a non-profit organization acting for the benefit of persons with a print disability to do any of the following:

(a)for the purpose of doing any of the acts set out in paragraph (b),

(i)reproduce a literary, musical, artistic or dramatic work, other than a cinematographic work, in a format specially designed for persons with a print disability,

(ii)fix a performer’s performance of a literary, musical, artistic or dramatic work, other than a cinematographic work, in a format specially designed for persons with a print disability, or

(iii)reproduce a sound recording, or a fixation of a performer’s performance referred to in subparagraph (ii), in a format specially designed for persons with a print disability;

(b)provide either of the following with, or provide either of the following with access to, a work or other subject-matter to which any of subparagraphs (a)(i) to (iii) applies, in a format specially designed for persons with a print disability, and do any other act that is necessary for that purpose:

(i)a non-profit organization, in a country other than Canada, acting for the benefit of persons with a print disability in that country, or

(ii)a person with a print disability, in a country other than Canada, who has made a request to be provided with, or provided with access to, the work or other subject-matter through a non-profit organization acting for the benefit of persons with a print disability in that country.

(2)Paragraph (1)(b) does not apply if the work or other subject-matter, in the format specially designed for persons with a print disability, is available in the other country within a reasonable time and for a reasonable price and may be located in that country with reasonable effort.

(3)An injunction is the only remedy that the owner of the copyright in the work or other subject-matter has against a non-profit organization relying on the exception set out in paragraph (1)(b) if

(a)the other country referred to in that paragraph is a Marrakesh Treaty country; and

(b)the non-profit organization infringes copyright by reason only that the work or other subject-matter, in the format described in subsection (2), is available, and may be located, as described in that subsection.

The owner of the copyright bears the burden of demonstrating that the work or other subject-matter, in the format described in subsection (2), is available, and may be located, as described in that subsection.

(3.1)An injunction is the only remedy that the owner of the copyright in the work or other subject-matter has against a non-profit organization relying on the exception set out in paragraph (1)(b) if

(a)the other country referred to in that paragraph is not a Marrakesh Treaty country;

(c)the non-profit organization demonstrates that it had reasonable grounds to believe that the work or other subject-matter, in the format described in subsection (2), was not available, and could not be located, as described in that subsection.

(4)A non-profit organization relying on the exception set out in subsection (1) shall pay, in accordance with the regulations, any royalty established under the regulations to the copyright owner.

(5)If the organization cannot locate the copyright owner, despite making reasonable efforts to do so, the organization shall pay, in accordance with the regulations, any royalty established under the regulations to a collective society.

(6)A non-profit organization relying on the exception set out in subsection (1) shall submit reports to an authority, in accordance with the regulations, on the organization’s activities under this section.

(7)The Governor in Council may make regulations

(a)requiring that, before a non-profit organization provides, or provides access to, a work or other subject-matter under paragraph (1)(b), the organization enter into a contract with respect to the use of the work or other subject-matter with, as the case may be, the recipient non-profit organization or the non-profit organization through which the request was made;

(b)respecting the form and content of such contracts;

(c)respecting any royalties to be paid under subsections (4) and (5);

(d)respecting to which collective society a royalty is payable in relation to works or other subject-matter, or classes of works or other subject-matter, for the purposes of subsection (5);

(e)respecting what constitutes reasonable efforts for the purposes of subsection (5); and

(f)respecting the reports to be made, and the authorities to which the reports are to be submitted, under subsection (6).

(8)The following definitions apply in this section.

Marrakesh Treaty country means a country that is a party to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, done at Marrakesh on June 27, 2013. (pays partie au Traité de Marrakech)

print disability means a disability that prevents or inhibits a person from reading a literary, musical, artistic or dramatic work in its original format and includes such a disability resulting from

(a)severe or total impairment of sight 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. (déficience de lecture des imprimés)

^note

32.02Definition of non-profit organization#

In sections 32 and 32.01, non-profit organization includes a department, agency or other portion of any order of government, including a municipal or local government, when it is acting on a non-profit basis.^note

Statutory Obligations

32.1No infringement#

(1)It is not an infringement of copyright for any person

(a)to disclose, pursuant to the Access to Information Act, a record within the meaning of that Act, or to disclose, pursuant to any like Act of the legislature of a province, like material;

(b)to disclose, pursuant to the Privacy Act, personal information within the meaning of that Act, or to disclose, pursuant to any like Act of the legislature of a province, like information;

(c)to make a copy of an object referred to in section 14 of the Cultural Property Export and Import Act, for deposit in an institution pursuant to a direction under that section; and

(d)to make a fixation or copy of a work or other subject-matter in order to comply with the Broadcasting Act or any rule, regulation or other instrument made under it.

(2)Nothing in paragraph (1)(a) or (b) authorizes a person to whom a record or information is disclosed to do anything that, by this Act, only the owner of the copyright in the record, personal information or like information, as the case may be, has a right to do.

(3)Unless the Broadcasting Act otherwise provides, a person who makes a fixation or copy under paragraph (1)(d) shall destroy it immediately on the expiration of the period for which it must be kept pursuant to that Act, rule, regulation or other instrument.

^note

Miscellaneous

32.2Permitted acts#

(1)It is not an infringement of copyright

(a)for an author of an artistic work who is not the owner of the copyright in the work to use any mould, cast, sketch, plan, model or study made by the author for the purpose of the work, if the author does not thereby repeat or imitate the main design of the work;

(b)for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work

(i)an architectural work, provided the copy is not in the nature of an architectural drawing or plan, or

(ii)a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work of artistic craftsmanship, that is permanently situated in a public place or building;

(c)for any person to make or publish, for the purposes of news reporting or news summary, a report of a lecture given in public, unless the report is prohibited by conspicuous written or printed notice affixed before and maintained during the lecture at or about the main entrance of the building in which the lecture is given, and, except while the building is being used for public worship, in a position near the lecturer;

(d)for any person to read or recite in public a reasonable extract from a published work;

(e)for any person to make or publish, for the purposes of news reporting or news summary, a report of an address of a political nature given at a public meeting; or

(f)for an individual to use for private or non-commercial purposes, or permit the use of for those purposes, a photograph or portrait that was commissioned by the individual for personal purposes and made for valuable consideration, unless the individual and the owner of the copyright in the photograph or portrait have agreed otherwise.

(2)It is not an infringement of copyright for a person to do any of the following acts without motive of gain at any agricultural or agricultural-industrial exhibition or fair that receives a grant from or is held by its directors under federal, provincial or municipal authority:

(a)the live performance in public of a musical work;

(b)the performance in public of a sound recording embodying a musical work or a performer’s performance of a musical work; or

(c)the performance in public of a communication signal carrying

(i)the live performance in public of a musical work, or

(ii)a sound recording embodying a musical work or a performer’s performance of a musical work.

(3)No religious organization or institution, educational institution and no charitable or fraternal organization shall be held liable to pay any compensation for doing any of the following acts in furtherance of a religious, educational or charitable object:

(a)the live performance in public of a musical work;

(b)the performance in public of a sound recording embodying a musical work or a performer’s performance of a musical work; or

(c)the performance in public of a communication signal carrying

(i)the live performance in public of a musical work, or

(ii)a sound recording embodying a musical work or a performer’s performance of a musical work.

^note

Interpretation

32.3No right to equitable remuneration#

For the purposes of sections 29 to 32.2, an act that does not infringe copyright does not give rise to a right to remuneration conferred by section 19.^note

Compensation for Acts Done Before Recognition of Copyright of Performers and Broadcasters

32.4Certain rights and interests protected#

(1)Notwithstanding section 27, where a person has, before the later of January 1, 1996 and the day on which a country becomes a WTO member, incurred an expenditure or liability in connection with, or in preparation for, the doing of an act that would have infringed copyright under section 26 commencing on the later of those days, had that country been a WTO member, any right or interest of that person that

(a)arises from or in connection with the doing of that act, and

(b)is subsisting and valuable on the later of those days

is not prejudiced or diminished by reason only that that country has become a WTO member, except as provided by an order of the Board made under subsection 78(3).

(2)Notwithstanding subsection (1), a person’s right or interest that is protected by that subsection terminates if and when the owner of the copyright pays that person such compensation as is agreed to between the parties or, failing agreement, as is determined by the Board in accordance with section 78.

(3)Nothing in subsections (1) and (2) affects any right of a performer available in law or equity.

^note

32.5Certain rights and interests protected#

(1)Notwithstanding section 27, where a person has, before the later of the coming into force of Part II and the day on which a country becomes a Rome Convention country, incurred an expenditure or liability in connection with, or in preparation for, the doing of an act that would have infringed copyright under section 15 or 21 commencing on the later of those days, had Part II been in force or had that country been a Rome Convention country, any right or interest of that person that

(a)arises from or in connection with the doing of that act, and

(b)is subsisting and valuable on the later of those days

is not prejudiced or diminished by reason only that Part II has come into force or that the country has become a Rome Convention country, except as provided by an order of the Board made under subsection 78(3).

(3)Nothing in subsections (1) and (2) affects any right of a performer available in law or equity.

^note

32.6Certain rights and interests protected#

Despite sections 27, 28.1 and 28.2, if a person has, before the day on which subsection 15(1.1), 17.1(1) or 18(1.1) applies in respect of a particular performers’ performance or sound recording, incurred an expenditure or a liability in connection with, or in preparation for, the doing of an act that would, if done after that day, have infringed rights under that subsection, any right or interest of that person that arises from, or in connection with, the doing of that act and that is subsisting and valuable on that day is not, for two years after the day on which this section comes into force, prejudiced or diminished by reason only of the subsequent application of that subsection in respect of the performers’ performance or sound recording.^note

Compensation for Acts Done Before Recognition of Copyright or Moral Rights

33Certain rights and interests protected#

(1)Despite subsections 27(1), (2) and (4) and sections 27.1, 28.1 and 28.2, if a person has, before the later of January 1, 1996 and the day on which a country becomes a treaty country other than a WCT country, incurred an expenditure or liability in connection with, or in preparation for, the doing of an act that, if that country had been such a treaty country, would have infringed copyright in a work or moral rights in respect of a work, any right or interest of that person that arises from, or in connection with, the doing of that act and that is subsisting and valuable on the later of those days is not, except as provided by an order of the Board made under subsection 78(3), prejudiced or diminished by reason only of that country having become such a treaty country.

(2)Notwithstanding subsection (1), a person’s right or interest that is protected by that subsection terminates, as against the copyright owner or author, if and when that copyright owner or the author, as the case may be, pays that person such compensation as is agreed to between the parties or, failing agreement, as is determined by the Board in accordance with section 78.

^note

33.1Certain rights and interests protected#

(1)Despite subsections 27(1), (2) and (4) and sections 27.1, 28.1 and 28.2, if a person has, before the later of the day on which this section comes into force and the day on which a country that is a treaty country but not a WCT country becomes a WCT country, incurred an expenditure or liability in connection with, or in preparation for, the doing of an act that, if that country had been a WCT country, would have infringed a right under paragraph 3(1)(j), any right or interest of that person that arises from, or in connection with, the doing of that act and that is subsisting and valuable on the later of those days is not, except as provided by an order of the Board made under subsection 78(3), prejudiced or diminished by reason only of that country having become a WCT country.

(2)Despite subsection (1), a person’s right or interest that is protected by that subsection terminates as against the copyright owner if and when the owner pays the person any compensation that is agreed to between the parties or, failing agreement, that is determined by the Board in accordance with section 78.

^note

33.2Certain rights and interests protected#

(1)Despite subsections 27(1), (2) and (4) and sections 27.1, 28.1 and 28.2, if a person has, before the later of the day on which this section comes into force and the day on which a country that is not a treaty country becomes a WCT country, incurred an expenditure or a liability in connection with, or in preparation for, the doing of an act that, if that country had been a WCT country, would have infringed copyright in a work or moral rights in respect of a work, any right or interest of that person that arises from, or in connection with, the doing of that act and that is subsisting and valuable on the later of those days is not, except as provided by an order of the Board made under subsection 78(3), prejudiced or diminished by reason only of that country having become a WCT country.

(2)Despite subsection (1), a person’s right or interest that is protected by that subsection terminates as against the copyright owner if and when that owner pays the person any compensation that is agreed to between the parties or, failing agreement, that is determined by the Board in accordance with section 78.

^note

Part IV · Remedies

Civil Remedies

Infringement of Copyright and Moral Rights

34Copyright#

(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.

(2)In any proceedings for an infringement of moral rights, the court may grant to the holder of those rights 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.

(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.

(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:

(a)proceedings for infringement of copyright or moral rights;

(b)proceedings taken under section 44.12, 44.2 or 44.4; and

(c)proceedings taken in respect of

(i)a tariff approved by the Board under Part VII.1 or VIII, or

(ii)agreements referred to in subsection 67(3).

(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.

(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.

(7)In this section, application means a proceeding that is commenced other than by way of a writ or statement of claim.

^note

34.1Presumptions respecting copyright and ownership#

(1)In any civil proceedings taken under this Act in which the defendant puts in issue either the existence of the copyright or the title of the plaintiff to it,

(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

(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.

(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,

(a)if a name purporting to be that of

(i)the author of the work,

(ii)the performer of the performer’s performance,

(iii)the maker of the sound recording, or

(iv)the broadcaster of the communication signal

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;

(b)if

(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

(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,

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

(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.

^note

35Liability for infringement#

(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.

(2)In proving profits,

(a)the plaintiff shall be required to prove only receipts or revenues derived from the infringement; and

(b)the defendant shall be required to prove every element of cost that the defendant claims.

^note

36 #

[Repealed, 2012, c. 20, s. 45] (repealed)

37 #

[Repealed, 2012, c. 20, s. 45] (repealed)

38Recovery of possession of copies, plates#

(1)Subject to subsection (2), the owner of the copyright in a work or other subject-matter may

(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

(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,

as if those copies or plates were the property of the copyright owner.

(2)On application by

(a)a person from whom the copyright owner has recovered possession of copies or plates referred to in subsection (1),

(b)a person against whom proceedings for seizure before judgment of copies or plates referred to in subsection (1) have been taken, or

(c)any other person who has an interest in those copies or plates,

a court may order that those copies or plates be destroyed, or may make any other order that it considers appropriate in the circumstances.

(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.

(4)In making an order under subsection (2), the court shall have regard to all the circumstances, including

(a)the proportion, importance and value of the infringing copy or plate, as compared to the substrate or carrier embodying it; and

(b)the extent to which the infringing copy or plate is severable from, or a distinct part of, the substrate or carrier embodying it.

(5)Nothing in this Act entitles the copyright owner to damages in respect of the possession or conversion of the infringing copies or plates.

^note

38.1Statutory damages#

(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 which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally,

(a)in a sum of not less than $500 and not more than $20,000 that the court considers just, with respect to all infringements involved in the proceedings for each work or other subject-matter, if the infringements are for commercial purposes; and

(b)in a sum of not less than $100 and not more than $5,000 that the court considers just, with respect to all infringements involved in the proceedings for all works or other subject-matter, if the infringements are for non-commercial purposes.

(1.1)An infringement under subsection 27(2.3) may give rise to an award of statutory damages with respect to a work or other subject-matter only if the copyright in that work or other subject-matter was actually infringed as a result of the use of a service referred to in that subsection.

(1.11)For the purpose of subsection (1), an infringement under subsection 27(2.3) is deemed to be for a commercial purpose.

(1.12)If the copyright owner has made an election under subsection (1) with respect to a defendant’s infringements that are for non-commercial purposes, they are barred from recovering statutory damages under this section from that defendant with respect to any other of the defendant’s infringements that were done for non-commercial purposes before the institution of the proceedings in which the election was made.

(1.2)If a copyright owner has made an election under subsection (1) with respect to a defendant’s infringements that are for non-commercial purposes, every other copyright owner is barred from electing to recover statutory damages under this section in respect of that defendant for any of the defendant’s infringements that were done for non-commercial purposes before the institution of the proceedings in which the election was made.

(2)If 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 under paragraph (1)(a) to less than $500, but not less than $200.

(3)In awarding statutory damages under paragraph (1)(a) or subsection (2), the court may award, with respect to each work or other subject-matter, a lower amount than $500 or $200, as the case may be, that the court considers just, if

(a)either

(i)there is more than one work or other subject-matter in a single medium, or

(ii)the award relates only to one or more infringements under subsection 27(2.3); and

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

(4)A collective society or copyright owner who has authorized a collective society to act on their behalf may make an election under this section with respect to an act set out in subsection (4.1) only if applicable royalties are set out in an approved tariff or fixed under subsection 71(2) and the defendant has not paid them. If they make the election, the collective society or copyright owner may only recover, in lieu of any other remedy of a monetary nature provided by this Act, an award of statutory damages in respect of such acts 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.

(4.1)Subsection (4) applies with respect to the following acts:

(a)the performance in public of musical works or dramatico-musical works, of performer’s performances of such works, or of sound recordings embodying such works or performances; and

(b)the communication to the public by telecommunication of musical works or dramatico-musical works, other than as described in subsection 31(2), of performer’s performances of such works, or of sound recordings embodying such works or performances.

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

(a)the good faith or bad faith of the defendant;

(b)the conduct of the parties before and during the proceedings;

(c)the need to deter other infringements of the copyright in question; and

(d)in the case of infringements for non-commercial purposes, the need for an award to be proportionate to the infringements, in consideration of the hardship the award may cause to the defendant, whether the infringement was for private purposes or not, and the impact of the infringements on the plaintiff.

(6)No statutory damages may be awarded against

(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;

(b)an educational institution, library, archive or museum that is sued in the circumstances referred to in section 38.2;

(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; or

(d)an educational institution that is sued in the circumstances referred to in subsection 30.02(7) or a person acting under its authority who is sued in the circumstances referred to in subsection 30.02(8).

(7)An election under subsection (1) does not affect any right that the copyright owner may have to exemplary or punitive damages.

^note

38.2Maximum amount that may be recovered#

(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

(a)under any agreement entered into with the collective society; or

(b)under a tariff approved by the Board under section 70.

(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.

(3)Subsections (1) and (2) apply only where

(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

(b)copying of that general nature and extent is covered by the agreement or tariff.

^note

39Injunction only remedy when defendant not aware of copyright#

(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.

(2)Subsection (1) does not apply if, at the date of the infringement, the copyright was duly registered under this Act.

^note

39.1Wide injunction#

(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

(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

(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.

(2)An injunction granted under subsection (1) may extend to works or other subject-matter

(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

(b)that did not exist at the time the proceedings were commenced.

^note

40No injunction in case of a building#

(1)Where the construction of a building or other structure that infringes or that, if completed, would infringe the copyright in some other work has been commenced, the owner of the copyright is not entitled to obtain an injunction in respect of the construction of that building or structure or to order its demolition.

(2)Sections 38 and 42 do not apply in any case in respect of which subsection (1) applies.

^note

Technological Protection Measures and Rights Management Information

41Definitions#

The following definitions apply in this section and in sections 41.1 to 41.21.

circumvent means,

(a)in respect of a technological protection measure within the meaning of paragraph (a) of the definition technological protection measure, to descramble a scrambled work or computer program, or decrypt an encrypted work or computer program or to otherwise avoid, bypass, remove, deactivate or impair the technological protection measure, unless it is done with the authority of the copyright owner; and

(b)in respect of a technological protection measure within the meaning of paragraph (b) of the definition technological protection measure, to avoid, bypass, remove, deactivate or impair the technological protection measure. (contourner)

technological protection measure means any effective technology, device or component that, in the ordinary course of its operation,

(a)controls access to a work, including a computer program, to a performer’s performance fixed in a sound recording or to a sound recording and whose use is authorized by the copyright owner;

(b)restricts the doing — with respect to a work, to a performer’s performance fixed in a sound recording or to a sound recording — of any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19. (mesure technique de protection)

^note

41.1Prohibition#

(1)No person shall

(a)circumvent a technological protection measure within the meaning of paragraph (a) of the definition technological protection measure in section 41;

(b)offer services to the public or provide services if

(i)the services are offered or provided primarily for the purposes of circumventing a technological protection measure,

(ii)the uses or purposes of those services are not commercially significant other than when they are offered or provided for the purposes of circumventing a technological protection measure, or

(iii)the person markets those services as being for the purposes of circumventing a technological protection measure or acts in concert with another person in order to market those services as being for those purposes; or

(c)manufacture, import, distribute, offer for sale or rental or provide — including by selling or renting — any technology, device or component if

(i)the technology, device or component is designed or produced primarily for the purposes of circumventing a technological protection measure,

(ii)the uses or purposes of the technology, device or component are not commercially significant other than when it is used for the purposes of circumventing a technological protection measure, or

(iii)the person markets the technology, device or component as being for the purposes of circumventing a technological protection measure or acts in concert with another person in order to market the technology, device or component as being for those purposes.

(2)The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording in respect of which paragraph (1)(a) has been contravened is, subject to this Act and any regulations made under section 41.21, 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 copyright against the person who contravened that paragraph.

(3)The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording in respect of which paragraph (1)(a) has been contravened may not elect under section 38.1 to recover statutory damages from an individual who contravened that paragraph only for his or her own private purposes.

(4)Every owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording in respect of which a technological protection measure has been or could be circumvented as a result of the contravention of paragraph (1)(b) or (c) is, subject to this Act and any regulations made under section 41.21, 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 copyright against the person who contravened paragraph (1)(b) or (c).

^note

41.11Law enforcement and national security#

(1)Paragraph 41.1(1)(a) does not apply if a technological protection measure is circumvented for the purposes of an investigation related to the enforcement of any Act of Parliament or any Act of the legislature of a province, or for the purposes of activities related to the protection of national security.

(2)Paragraph 41.1(1)(b) does not apply if the services are provided by or for the persons responsible for carrying out such an investigation or such activities.

(3)Paragraph 41.1(1)(c) does not apply if the technology, device or component is manufactured, imported or provided by the persons responsible for carrying out such an investigation or such activities, or is manufactured, imported, provided or offered for sale or rental as a service provided to those persons.

^note

41.12Interoperability#

(1)Paragraph 41.1(1)(a) does not apply to a person who circumvents a technological protection measure that protects a lawfully obtained computer program for the purpose of

(a)obtaining information that would allow the person to make the program or a device in which it is embedded interoperable with any other computer program, device or component; or

(b)making the program or a device in which it is embedded interoperable with any other computer program, device or component.

(2)Paragraph 41.1(1)(b) does not apply to a person who offers services to the public or provides services for the purposes of circumventing a technological protection measure if the person does so for the purpose of making the computer program and any other computer program interoperable.

(3)Paragraph 41.1(1)(c) does not apply to a person who manufactures, imports or provides a technology, device or component for the purposes of circumventing a technological protection measure if the person does so for the purpose of making the computer program and any other computer program interoperable and

(a)uses that technology, device or component only for that purpose; or

(b)provides that technology, device or component to another person only for that purpose.

(4)A person referred to in paragraph (1)(a) may communicate the information obtained under that paragraph to another person for the purposes of allowing that person to make the computer program or a device in which it is embedded interoperable with any other computer program, device or component.

(5)A person to whom the technology, device or component referred to in subsection (3) is provided may use it only for the purpose of making the computer program and any other computer program interoperable.

(6)A person to whom the information referred to in subsection (4) is communicated may use it only for the purpose of making the computer program or a device in which it is embedded interoperable with any other computer program, device or component.

(7)A person is not entitled to benefit from the exceptions under subsection (1) or (6) if, for the purposes of making the computer program or a device in which it is embedded interoperable with any other computer program, device or component, the person does an act that constitutes an infringement of copyright.

(8)A person is not entitled to benefit from the exceptions under subsection (2), (3) or (5) if, for the purposes of making the computer program and any other computer program interoperable, the person does an act that constitutes an infringement of copyright.

(9)A person is not entitled to benefit from the exception under subsection (4) if, for the purposes of making the computer program or a device in which it is embedded interoperable with any other computer program, device or component, the person does an act that constitutes an infringement of copyright or an act that contravenes any Act of Parliament or any Act of the legislature of a province.

^note

41.121Diagnosis, maintenance and repair#

(1)Paragraph 41.1(1)(a) does not apply to a person who circumvents a technological protection measure for the sole purpose of maintaining or repairing a product, including any related diagnosing, if the work, performer’s performance fixed in a sound recording or sound recording to which the technological protection measure controls access forms a part of the product.

(2)For greater certainty, subsection (1) applies to a person who circumvents a technological protection measure in the circumstances referred to in that subsection for another person.

(3)A person acting in the circumstances referred to in subsection (1) is not entitled to benefit from the exception under that subsection if the person does an act that constitutes an infringement of copyright.

^note

41.13Encryption research#

(1)Paragraph 41.1(1)(a) does not apply to a person who, for the purposes of encryption research, circumvents a technological protection measure by means of decryption if

(a)it would not be practical to carry out the research without circumventing the technological protection measure;

(b)the person has lawfully obtained the work, the performer’s performance fixed in a sound recording or the sound recording that is protected by the technological protection measure; and

(c)the person has informed the owner of the copyright in the work, the performer’s performance fixed in a sound recording or the sound recording who has applied the technological protection measure.

(2)However, a person acting in the circumstances referred to in subsection (1) is not entitled to benefit from the exception under that subsection if the person does an act that constitutes an infringement of copyright or an act that contravenes any Act of Parliament or any Act of the legislature of a province.

(3)Paragraph 41.1(1)(c) does not apply to a person referred to in subsection (1) who manufactures a technology, device or component for the purposes of circumventing a technological protection measure that is subject to paragraph 41.1(1)(a) if the person does so for the purpose of encryption research and

(a)uses that technology, device or component only for that purpose; or

(b)provides that technology, device or component only for that purpose to another person who is collaborating with the person.

^note

41.14Personal information#

(1)Paragraph 41.1(1)(a) does not apply to a person who circumvents a technological protection measure if

(a)the work, performer’s performance fixed in a sound recording or sound recording that is protected by the technological protection measure is not accompanied by a notice indicating that its use will permit a third party to collect and communicate personal information relating to the user or, in the case where it is accompanied by such a notice, the user is not provided with the option to prevent the collection and communication of personal information without the user’s use of it being restricted; and

(b)the only purpose of circumventing the technological protection measure is to verify whether it permits the collection or communication of personal information and, if it does, to prevent it.

(2)Paragraphs 41.1(1)(b) and (c) do not apply to a person who offers services to the public or provides services, or manufactures, imports or provides a technology, device or component, for the purposes of circumventing a technological protection measure in accordance with subsection (1), to the extent that the services, technology, device or component do not unduly impair the technological protection measure.

^note

41.15Security#

(1)Paragraph 41.1(1)(a) does not apply to a person who circumvents a technological protection measure that is subject to that paragraph for the sole purpose of, with the consent of the owner or administrator of a computer, computer system or computer network, assessing the vulnerability of the computer, system or network or correcting any security flaws.

(2)Paragraph 41.1(1)(b) does not apply if the services are provided to a person described in subsection (1).

(3)Paragraph 41.1(1)(c) does not apply if the technology, device or component is manufactured or imported by a person described in subsection (1), or is manufactured, imported, provided — including by selling or renting — offered for sale or rental or distributed as a service provided to that person.

(4)A person acting in the circumstances referred to in subsection (1) is not entitled to benefit from the exception under that subsection if the person does an act that constitutes an infringement of copyright or an act that contravenes any Act of Parliament or any Act of the legislature of a province.

^note

41.16Persons with perceptual disabilities#

(1)Paragraph 41.1(1)(a) does not apply to a person with a perceptual disability, to another person acting at their request or to a non-profit organization, as defined in section 32.02, acting for their benefit, if that person or organization circumvents a technological protection measure solely for one or more of the following purposes:

(a)to make a work, a performer’s performance fixed in a sound recording or a sound recording perceptible to the person with a perceptual disability;

(b)to permit a person, or a non-profit organization referred to in subsection 32(1), to benefit from the exception set out in section 32;

(c)to permit a non-profit organization referred to in subsection 32.01(1) to benefit from the exception set out in section 32.01.

(2)Paragraphs 41.1(1)(b) and (c) do not apply to a person who offers or provides services to persons or non-profit organizations referred to in subsection (1) or who manufactures, imports or provides a technology, device or component, for the sole purpose of enabling those persons or non-profit organizations to circumvent a technological protection measure in accordance with that subsection.

^note

41.17Broadcasting undertakings#

Paragraph 41.1(1)(a) does not apply to a broadcasting undertaking that circumvents a technological protection measure for the sole purpose of making an ephemeral reproduction of a work, a performer’s performance fixed in a sound recording or a sound recording in accordance with section 30.9, unless the owner of the copyright in the work, the performer’s performance fixed in a sound recording or the sound recording that is protected by the technological protection measure makes available the necessary means to enable the making of such a reproduction in a timely manner in light of the broadcasting undertaking’s business requirements.^note

41.18Radio apparatus#

(1)Paragraph 41.1(1)(a) does not apply to a person who circumvents a technological protection measure on a radio apparatus for the sole purpose of gaining access to a telecommunications service by means of the radio apparatus.

(2)Paragraphs 41.1(1)(b) and (c) do not apply to a person who offers the services to the public or provides the services, or manufactures, imports or provides the technology, device or component, for the sole purpose of facilitating access to a telecommunications service by means of a radio apparatus.

(3)The following definitions apply in this section.

radio apparatus has the same meaning as in section 2 of the Radiocommunication Act. (appareil radio)

telecommunications service has the same meaning as in subsection 2(1) of the Telecommunications Act. (service de télécommunication)

^note

41.19Reduction of damages#

A court may reduce or remit the amount of damages it awards in the circumstances described in subsection 41.1(1) if the defendant satisfies the court that the defendant was not aware, and had no reasonable grounds to believe, that the defendant’s acts constituted a contravention of that subsection.^note

41.2Injunction only remedy#

If a court finds that a defendant that is a library, archive or museum or an educational institution has contravened subsection 41.1(1) and the defendant satisfies the court that it was not aware, and had no reasonable grounds to believe, that its actions constituted a contravention of that subsection, the plaintiff is not entitled to any remedy other than an injunction.^note

41.21Regulations#

(1)The Governor in Council may make regulations excluding from the application of section 41.1 any technological protection measure that protects a work, a performer’s performance fixed in a sound recording or a sound recording, or classes of them, or any class of such technological protection measures, if the Governor in Council considers that the application of that section to the technological protection measure or class of technological protection measures would unduly restrict competition in the aftermarket sector in which the technological protection measure is used.

(2)The Governor in Council may make regulations

(a)prescribing additional circumstances in which paragraph 41.1(1)(a) does not apply, having regard to the following factors:

(i)whether not being permitted to circumvent a technological protection measure that is subject to that paragraph could adversely affect the use a person may make of a work, a performer’s performance fixed in a sound recording or a sound recording when that use is authorized,

(ii)whether the work, the performer’s performance fixed in a sound recording or the sound recording is commercially available,

(iii)whether not being permitted to circumvent a technological protection measure that is subject to that paragraph could adversely affect criticism, review, news reporting, commentary, parody, satire, teaching, scholarship or research that could be made or done in respect of the work, the performer’s performance fixed in a sound recording or the sound recording,

(iv)whether being permitted to circumvent a technological protection measure that is subject to that paragraph could adversely affect the market for the work, the performer’s performance fixed in a sound recording or the sound recording or its market value,

(v)whether the work, the performer’s performance fixed in a sound recording or the sound recording is commercially available in a medium and in a quality that is appropriate for non-profit archival, preservation or educational uses, and

(vi)any other relevant factor; and

(b)requiring the owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording that is protected by a technological protection measure to provide access to the work, performer’s performance fixed in a sound recording or sound recording to persons who are entitled to the benefit of any of the limitations on the application of paragraph 41.1(1)(a) prescribed under paragraph (a). The regulations may prescribe the manner in which, and the time within which, access is to be provided, as well as any conditions that the owner of the copyright is to comply with.

^note

41.22Prohibition — rights management information#

(1)No person shall knowingly remove or alter any rights management information in electronic form without the consent of the owner of the copyright in the work, the performer’s performance or the sound recording, if the person knows or should have known that the removal or alteration will facilitate or conceal any infringement of the owner’s copyright or adversely affect the owner’s right to remuneration under section 19.

(2)The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording 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 copyright against a person who contravenes subsection (1).

(3)The copyright owner referred to in subsection (2) has the same remedies against a person who, without the owner’s consent, knowingly does any of the following acts with respect to any material form of the work, the performer’s performance fixed in a sound recording or the sound recording and knows or should have known that the rights management information has been removed or altered in a way that would give rise to a remedy under that subsection:

(a)sells it or rents it out;

(b)distributes it to an extent that the copyright owner is prejudicially affected;

(c)by way of trade, distributes it, exposes or offers it for sale or rental or exhibits it in public;

(d)imports it into Canada for the purpose of doing anything referred to in any of paragraphs (a) to (c); or

(e)communicates it to the public by telecommunication.

(4)In this section, rights management information means information that

(a)is attached to or embodied in a copy of a work, a performer’s performance fixed in a sound recording or a sound recording, or appears in connection with its communication to the public by telecommunication; and

(b)identifies or permits the identification of the work or its author, the performance or its performer, the sound recording or its maker or the holder of any rights in the work, the performance or the sound recording, or concerns the terms or conditions of the work’s, performance’s or sound recording’s use.

^note

General Provisions

41.23Protection of separate rights#

(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.

(2)If proceedings under subsection (1) are taken by a person other than the copyright owner, the copyright owner shall be made a party to those proceedings, except

(a)in the case of proceedings taken under section 44.12, 44.2 or 44.4;

(b)in the case of interlocutory proceedings, unless the court is of the opinion that the interests of justice require the copyright owner to be a party; and

(c)in any other case in which the court is of the opinion that the interests of justice do not require the copyright owner to be a party.

(3)A copyright owner who is made a party to proceedings under subsection (2) is not liable for any costs unless the copyright owner takes part in the proceedings.

(4)If a copyright owner is made a party to proceedings under 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.

^note

41.24Concurrent jurisdiction of Federal Court#

The Federal Court has concurrent jurisdiction with provincial courts to hear and determine all proceedings, other than the prosecution of offences under sections 42 and 43, for the enforcement of a provision of this Act or of the civil remedies provided by this Act.^note

Provisions Respecting Providers of Network Services or Information Location Tools

41.25Notice of claimed infringement#

(1)An owner of the copyright in a work or other subject-matter may send a notice of claimed infringement to a person who provides

(a)the means, in the course of providing services related to the operation of the Internet or another digital network, of telecommunication through which the electronic location that is the subject of the claim of infringement is connected to the Internet or another digital network;

(b)for the purpose set out in subsection 31.1(4), the digital memory that is used for the electronic location to which the claim of infringement relates; or

(c)an information location tool as defined in subsection 41.27(5).

(2)A notice of claimed infringement shall be in writing in the form, if any, prescribed by regulation and shall

(a)state the claimant’s name and address and any other particulars prescribed by regulation that enable communication with the claimant;

(b)identify the work or other subject-matter to which the claimed infringement relates;

(c)state the claimant’s interest or right with respect to the copyright in the work or other subject-matter;

(d)specify the location data for the electronic location to which the claimed infringement relates;

(e)specify the infringement that is claimed;

(f)specify the date and time of the commission of the claimed infringement; and

(g)contain any other information that may be prescribed by regulation.

(3)A notice of claimed infringement shall not contain

(a)an offer to settle the claimed infringement;

(b)a request or demand, made in relation to the claimed infringement, for payment or for personal information;

(c)a reference, including by way of hyperlink, to such an offer, request or demand; and

(d)any other information that may be prescribed by regulation.

^note

41.26Obligations related to notice#

(1)A person described in paragraph 41.25(1)(a) or (b) who receives a notice of claimed infringement that complies with subsections 41.25(2) and (3) shall, on being paid any fee that the person has lawfully charged for doing so,

(a)as soon as feasible forward the notice electronically to the person to whom the electronic location identified by the location data specified in the notice belongs and inform the claimant of its forwarding or, if applicable, of the reason why it was not possible to forward it; and

(b)retain records that will allow the identity of the person to whom the electronic location belongs to be determined, and do so for six months beginning on the day on which the notice of claimed infringement is received or, if the claimant commences proceedings relating to the claimed infringement and so notifies the person before the end of those six months, for one year after the day on which the person receives the notice of claimed infringement.

(2)The Minister may, by regulation, fix the maximum fee that a person may charge for performing his or her obligations under subsection (1). If no maximum is fixed by regulation, the person may not charge any amount under that subsection.

(3)A claimant’s only remedy against a person who fails to perform his or her obligations under subsection (1) is statutory damages in an amount that the court considers just, but not less than $5,000 and not more than $10,000.

(4)The Governor in Council may, by regulation, increase or decrease the minimum or maximum amount of statutory damages set out in subsection (3).

^note

41.27Injunctive relief only — providers of information location tools#

(1)In any proceedings for infringement of copyright, the owner of the copyright in a work or other subject-matter is not entitled to any remedy other than an injunction against a provider of an information location tool that is found to have infringed copyright by making a reproduction of the work or other subject-matter or by communicating that reproduction to the public by telecommunication.

(2)Subsection (1) applies only if the provider, in respect of the work or other subject-matter,

(a)makes and caches, or does any act similar to caching, the reproduction in an automated manner for the purpose of providing the information location tool;

(b)communicates that reproduction to the public by telecommunication for the purpose of providing the information that has been located by the information location tool;

(c)does not modify the reproduction, other than for technical reasons;

(d)complies with any conditions relating to the making or caching, or doing of any act similar to caching, of reproductions of the work or other subject-matter, or to the communication of the reproductions to the public by telecommunication, that were specified in a manner consistent with industry practice by whoever made the work or other subject-matter available through the Internet or another digital network and that lend themselves to automated reading and execution; and

(e)does not interfere with the use of technology that is lawful and consistent with industry practice in order to obtain data on the use of the work or other subject-matter.

(3)If the provider receives a notice of claimed infringement, relating to a work or other subject-matter, that complies with subsections 41.25(2) and (3) after the work or other subject-matter has been removed from the electronic location set out in the notice, then subsection (1) applies, with respect to reproductions made from that electronic location, only to infringements that occurred before the day that is 30 days — or the period that may be prescribed by regulation — after the day on which the provider receives the notice.

(4)Subsection (1) does not apply to the provision of the information location tool if the provision of that tool constitutes an infringement of copyright under subsection 27(2.3).

(4.1)If it grants an injunction as set out in subsection (1), the court shall, among any other relevant factors, consider the following in establishing the terms of the injunction:

(a)the harm likely to be suffered by the copyright owner if steps are not taken to prevent or restrain the infringement; and

(b)the burden imposed on the provider and on the operation of the information location tool, including

(i)the aggregate effect of the injunction and any injunctions from other proceedings,

(ii)whether implementing the injunction would be technically feasible and effective in addressing the infringement,

(iii)whether implementing the injunction would interfere with the use of the information location tool for non-infringing acts, and

(iv)the availability of less burdensome and comparably effective means of preventing or restraining the infringement.

(4.2)A court is not permitted to grant an injunction under section 39.1 against a provider who is the subject of an injunction set out in subsection (1).

(5)In this section, information location tool means any tool that makes it possible to locate information that is available through the Internet or another digital network.

^note

Criminal Remedies

42Offences#

(1)Every person commits an offence who knowingly

(a)makes for sale or rental an infringing copy of a work or other subject-matter in which copyright subsists;

(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;

(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;

(d)by way of trade exhibits in public an infringing copy of a work or other subject-matter in which copyright subsists;

(e)possesses, for sale, rental, distribution for the purpose of trade or exhibition in public by way of trade, an infringing copy of a work or other subject-matter in which copyright subsists;

(f)imports, for sale or rental, into Canada any infringing copy of a work or other subject-matter in which copyright subsists; or

(g)exports or attempts to export, for sale or rental, an infringing copy of a work or other subject-matter in which copyright subsists.

(2)Every person commits an offence who knowingly

(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

(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.

(2.1)Every person who commits an offence under subsection (1) or (2) is liable

(a)on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than five years or to both; or

(b)on summary conviction, to a fine of not more than $25,000 or to imprisonment for a term of not more than six months or to both.

(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.

(3.01)Before making an order under subsection (3), the court shall require that notice be given to the owner of the copies or plates and to any other person who, in the court’s opinion, appears to have a right or interest in them, unless the court is of the opinion that the interests of justice do not require that the notice be given.

(3.1)Every person, except a person who is acting on behalf of a library, archive or museum or an educational institution, is guilty of an offence who knowingly and for commercial purposes contravenes section 41.1 and is liable

(a)on conviction on indictment, to a fine not exceeding $1,000,000 or to imprisonment for a term not exceeding five years or to both; or

(b)on summary conviction, to a fine not exceeding $25,000 or to imprisonment for a term not exceeding six months or to both.

(3.2)Every person, except a person who is acting on behalf of a library, archive or museum or an educational institution, commits an offence who knowingly and for commercial purposes

(a)removes or alters any rights management information in electronic form without the consent of the owner of the copyright in the work, the performer’s performance fixed in a sound recording or the sound recording, if the person knows that the removal or alteration will facilitate or conceal any infringement of the owner’s copyright or adversely affect the owner’s right to remuneration under section 19; or

(b)does any of the acts referred to in paragraphs 41.22(3)(a) to (e) with respect to any material form of the work, the performer’s performance fixed in a sound recording or the sound recording without the consent of the owner of the copyright and knows that

(i)the rights management information in electronic form has been removed or altered without the consent of the owner of the copyright, and

(ii)the removal or alteration will facilitate or conceal any infringement of the owner’s copyright or adversely affect the owner’s right to remuneration under section 19.

(3.3)Every person who commits an offence under subsection (3.2) is liable

(a)on conviction on indictment to a fine of not more than $1,000,000 or to imprisonment for a term of not more than five years or to both; or

(b)on summary conviction to a fine of not more than $25,000 or to imprisonment for a term of not more than six months or to both.

(3.4)In subsection (3.2), rights management information has the same meaning as in subsection 41.22(4).

(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.

(5)For the purposes of this section, a copy of a work or other subject-matter is not infringing if the copy was made with the consent of the owner of the copyright in the country where the copy was made.

43Infringement in case of dramatic, operatic or musical work#

(1)Any person who, without the written consent of the owner of the copyright or of the legal representative of the owner, knowingly performs or causes to be performed in public and for private profit the whole or any part, constituting an infringement, of any dramatic or operatic work or musical composition in which copyright subsists in Canada is guilty of an offence and liable on summary conviction to a fine not exceeding two hundred and fifty dollars and, in the case of a second or subsequent offence, either to that fine or to imprisonment for a term not exceeding two months or to both.

(2)Any person who makes or causes to be made any change in or suppression of the title, or the name of the author, of any dramatic or operatic work or musical composition in which copyright subsists in Canada, or who makes or causes to be made any change in the work or composition itself without the written consent of the author or of his legal representative, in order that the work or composition may be performed in whole or in part in public for private profit, is guilty of an offence and liable on summary conviction to a fine not exceeding five hundred dollars and, in the case of a second or subsequent offence, either to that fine or to imprisonment for a term not exceeding four months or to both.

^note

Limitation or Prescription Period

43.1Limitation or prescription period for civil remedies#

(1)Subject to subsection (2), a court may award a remedy for any act or omission that has been done contrary to this Act only if

(a)the proceedings for the act or omission giving rise to a remedy are commenced within three years after it occurred, in the case where the plaintiff knew, or could reasonably have been expected to know, of the act or omission at the time it occurred; or

(b)the proceedings for the act or omission giving rise to a remedy are commenced within three years after the time when the plaintiff first knew of it, or could reasonably have been expected to know of it, in the case where the plaintiff did not know, and could not reasonably have been expected to know, of the act or omission at the time it occurred.

(2)The court shall apply the limitation or prescription period set out in paragraph (1)(a) or (b) only in respect of a party who pleads a limitation period.

^note

Importation and Exportation

Interpretation

44Definitions#

The following definitions apply in sections 44.02 to 44.4.

court means the Federal Court or the superior court of a province. (tribunal)

customs officer has the meaning assigned by the definition officer in subsection 2(1) of the Customs Act. (agent des douanes)

duties has the same meaning as in subsection 2(1) of the Customs Act. (droits)

Minister means the Minister of Public Safety and Emergency Preparedness. (ministre)

release has the same meaning as in subsection 2(1) of the Customs Act. (dédouanement)

working day means a day other than a Saturday or a holiday. (jour ouvrable)

^note

Prohibition and Detention by Customs Officer

Prohibition

44.01Prohibition on importation or exportation#

(1)Copies of a work or other subject-matter in which copyright subsists shall not be imported or exported if

(a)they were made without the consent of the owner of the copyright in the country where they were made; and

(b)they infringe copyright or, if they were not made in Canada, they would infringe copyright had they been made in Canada by the person who made them.

(2)Subsection (1) does not apply to copies that are imported or exported by an individual in their possession or baggage if the circumstances, including the number of copies, indicate that the copies are intended only for their personal use.

^note

Request for Assistance

44.02Request for assistance#

(1)The owner of copyright in a work or other subject-matter may file with the Minister, in the form and manner specified by the Minister, a request for assistance in pursuing remedies under this Act with respect to copies imported or exported in contravention of section 44.01.

(2)The request for assistance shall include the copyright owner’s name and address in Canada and any other information that is required by the Minister, including information about the work or other subject-matter in question.

(3)A request for assistance is valid for a period of two years beginning on the day on which it is accepted by the Minister. The Minister may, at the request of the copyright owner, extend the period for two years, and may do so more than once.

(4)The Minister may, as a condition of accepting a request for assistance or of extending a request’s period of validity, require that the copyright owner furnish security, in an amount and form fixed by the Minister, for the payment of an amount for which the copyright owner becomes liable under section 44.07.

(5)The copyright owner shall inform the Minister in writing, as soon as practicable, of any changes to

(a)the subsistence of the copyright that is the subject of the request for assistance; or

(b)the ownership of that copyright.

^note

Measures Relating to Detained Copies

44.03Provision of information by customs officer#

A customs officer who is detaining copies of a work or other subject-matter under section 101 of the Customs Act may, in the officer’s discretion, to obtain information about whether the importation or exportation of the copies is prohibited under section 44.01, provide the owner of copyright in that work or subject-matter with a sample of the copies and with any information about the copies that the customs officer reasonably believes does not directly or indirectly identify any person.^note

44.04Provision of information to pursue remedy#

(1)A customs officer who is detaining copies of a work or other subject-matter under section 101 of the Customs Act and who has reasonable grounds to suspect that the importation or exportation of the copies is prohibited under section 44.01 may, in the officer’s discretion, if the Minister has accepted a request for assistance with respect to the work or subject-matter filed by the owner of copyright in it, provide that owner with a sample of the copies and with information about the copies that could assist them in pursuing a remedy under this Act, such as

(a)a description of the copies and of their characteristics;

(b)the name and address of their owner, importer, exporter and consignee and of the person who made them and of any other person involved in their movement;

(c)their quantity;

(d)the countries in which they were made and through which they passed in transit; and

(e)the day on which they were imported, if applicable.

(2)Subject to subsection (3), the customs officer shall not detain, for the purpose of enforcing section 44.01, the copies for more than 10 working days — or, if the copies are perishable, for more than five days — after the day on which the customs officer first sends or makes available a sample or information to the copyright owner under subsection (1). At the request of the copyright owner made while the copies are detained for the purpose of enforcing section 44.01, the customs officer may, having regard to the circumstances, detain non-perishable copies for one additional period of not more than 10 working days.

(3)If, before the copies are no longer detained for the purpose of enforcing section 44.01, the owner of copyright has provided the Minister, in the manner specified by the Minister, with a copy of a document filed with a court commencing proceedings to obtain a remedy under this Act with respect to the detained copies, the customs officer shall continue to detain them until the Minister is informed in writing that

(a)the proceedings are finally disposed of, settled or abandoned;

(b)a court directs that the copies are no longer to be detained for the purpose of the proceedings; or

(c)the copyright owner consents to the copies no longer being so detained.

(4)The occurrence of any of the events referred to in paragraphs (3)(a) to (c) does not preclude a customs officer from continuing to detain the copies under the Customs Act for a purpose other than the proceedings.

^note

44.05Restriction on information use — section 44.03#

(1)A person who receives a sample or information that is provided under section 44.03 shall not use the information, or information that is derived from the sample, for any purpose other than to give information to the customs officer about whether the importation or exportation of the copies is prohibited under section 44.01.

(2)A person who receives a sample or information that is provided under subsection 44.04(1) shall not use the information, or information that is derived from the sample, for any purpose other than to pursue remedies under this Act.

(3)For greater certainty, subsection (2) does not prevent the confidential communication of information about the copies for the purpose of reaching an out-of-court settlement.

^note

44.06Inspection#

After a sample or information has been provided under subsection 44.04(1), a customs officer may, in the officer’s discretion, give the owner, importer, exporter and consignee of the detained copies and the owner of copyright an opportunity to inspect the copies.^note

44.07Liability for charges#

(1)The owner of copyright who has received a sample or information under subsection 44.04(1) is liable to Her Majesty in right of Canada for the storage and handling charges for the detained copies — and, if applicable, for the charges for destroying them — for the period beginning on the day after the day on which a customs officer first sends or makes available a sample or information to that owner under that subsection and ending on the first day on which one of the following occurs:

(a)the copies are no longer detained for the purpose of enforcing section 44.01 or, if subsection 44.04(3) applies, for the purpose of the proceedings referred to in that subsection;

(b)the Minister receives written notification in which the owner states that the importation or exportation of the copies does not, with respect to the owner’s copyright, contravene section 44.01;

(c)the Minister receives written notification in which the owner states that they will not, while the copies are detained for the purpose of enforcing section 44.01, commence proceedings to obtain a remedy under this Act with respect to them.

(2)Despite paragraph (1)(a), if the copies are forfeited under subsection 39(1) of the Customs Act and the Minister did not, before the end of the detention of the copies for the purpose of enforcing section 44.01, receive a copy of a document filed with a court commencing proceedings to obtain a remedy under this Act with respect to the detained copies or the written notification referred to in paragraph (1)(b) or (c), the period ends on the day on which the copies are forfeited.

(3)Despite paragraph (1)(c), if the copies are forfeited under subsection 39(1) of the Customs Act after the Minister has received the written notification referred to in that paragraph, the period ends on the day on which the copies are forfeited.

(4)The owner and the importer or exporter of copies that are forfeited in the circumstances set out in subsection (2) or (3) are jointly and severally, or solidarily, liable to the owner of copyright for all the charges under subsection (1) paid by the copyright owner with respect to the period

(a)in the circumstances referred to in subsection (2), beginning on the day on which the copies are no longer detained for the purpose of enforcing section 44.01 and ending on the day on which the copies are forfeited; and

(b)in the circumstances referred to in subsection (3), beginning on the day on which the Minister receives the written notification referred to in paragraph (1)(c) and ending on the day on which the copies are forfeited.

(5)Subsections (1) to (3) do not apply if

(a)the detention of the copies for the purpose of enforcing section 44.01 ends before the expiry of 10 working days — or, if the copies are perishable, before the expiry of five days — after the day on which the customs officer first sends or makes available a sample or information to the copyright owner under subsection 44.04(1); and

(b)the Minister has not, by the end of the detention, received a copy of a document filed with a court commencing proceedings to obtain a remedy under this Act with respect to the detained copies or the written notification referred to in paragraph (1)(b) or (c).

^note

No Liability

44.08No liability#

Neither Her Majesty nor a customs officer is liable for any loss or damage suffered in relation to the enforcement or application of sections 44.01 to 44.04 and 44.06 because of

(a)the detention of copies of a work or other subject-matter, except if the detention contravenes subsection 44.04(2);

(b)the failure to detain copies; or

(c)the release or cessation of detention of any copies, except if the release or cessation contravenes subsection 44.04(3).

^note

Powers of Court Relating to Detained Copies

44.09Application to court#

(1)In the course of proceedings referred to in subsection 44.04(3), the court may, on the application of the Minister or a party to the proceedings,

(a)impose conditions on the storage or detention of the copies that are the subject of the proceedings; or

(b)direct that the copies are no longer to be detained for the purpose of the proceedings, on any conditions that the court may impose, if their owner, importer, exporter or consignee furnishes security in an amount fixed by the court.

(2)If a party applies to have the detained copies stored in a place other than a bonded warehouse or a sufferance warehouse, as those terms are defined in subsection 2(1) of the Customs Act, the Minister must consent to the storage of the copies in that place before a condition to that effect is imposed under subsection (1).

(3)The court may impose a condition described in subsection (2) despite section 31 of the Customs Act.

(4)A direction under paragraph (1)(b) that the copies are no longer to be detained for the purpose of the proceedings does not preclude a customs officer from continuing to detain the copies under the Customs Act for another purpose.

(5)In the course of proceedings referred to in subsection 44.04(3), the court may, on the application of the Minister or a party to the proceedings, require the owner of copyright to furnish security, in an amount fixed by the court,

(a)to cover duties, storage and handling charges, and any other amount that may become chargeable against the copies; and

(b)to answer any damages that may, because of the detention of the copies, be sustained by the owner, importer, exporter or consignee of the copies.

^note

44.1Damages against copyright owner#

(1)The court may award damages against the owner of copyright who commenced proceedings referred to in subsection 44.04(3) to the owner, importer, exporter or consignee of the copies who is a party to the proceedings for losses, costs or prejudice suffered as a result of the detention of the copies if the proceedings are dismissed or discontinued.

(2)Any damages under subsection 34(1) awarded to the owner of copyright in proceedings referred to in subsection 44.04(3) are to include the charges incurred by the copyright owner as a result of storing, handling or, if applicable, destroying the detained copies.

^note

Prohibition Resulting from Notice

44.11Importation of certain copyright works prohibited#

Copies made outside Canada of any work in which copyright subsists that if made in Canada would infringe copyright and as to which the owner of the copyright gives notice in writing to the Canada Border Services Agency that the owner desires that the copies not be imported into Canada, shall not be so imported and are deemed to be included in tariff item No. 9897.00.00 in the List of Tariff Provisions set out in the schedule to the Customs Tariff, with section 136 of that Act applying accordingly.^note

Court-ordered Detention

44.12Power of court#

(1)A court may make an order described in subsection (3) if the court is satisfied that

(a)copies of the work are about to be imported into Canada, or have been imported into Canada but have not been released;

(b)the copies were either

(i)made without the consent of the person who is owner of the copyright in the country where they were made, or

(ii)made elsewhere than in a country to which this Act extends; and

(c)the copies would infringe copyright if they were made in Canada by the importer and the importer knows or should have known this.

(2)A court may make an order described in subsection (3) on application by the owner of the copyright in a work in Canada.

(3)In an order made under subsection (1), the court may

(a)direct the Minister

(i)to take reasonable measures, on the basis of information reasonably required by the Minister and provided by the applicant, to detain the copies of the work, and

(ii)to notify the applicant and the importer, immediately after detaining the copies of the work, of the detention and the reasons for the detention; and

(b)provide for any other matters that the court considers appropriate.

(4)An application for an order under subsection (1) may be made in an action or otherwise, and either on notice or ex parte, except that it must always be made on notice to the Minister.

(5)Before making an order under subsection (1), the court may require the applicant to furnish security, in an amount fixed by the court,

(a)to cover duties, storage and handling charges and any other amount that may become chargeable against the copies of the work; and

(b)to answer any damages that may by reason of the order be incurred by the owner, importer or consignee of the work.

(6)The Minister may apply to the court for directions in implementing an order made under subsection (1).

(7)The Minister may give the applicant or the importer an opportunity to inspect the detained copies of the work for the purpose of substantiating or refuting, as the case may be, the applicant’s claim.

(8)Unless an order made under subsection (1) provides otherwise, the Minister shall, subject to the Customs Act and to any other Act of Parliament that prohibits, controls or regulates the importation or exportation of goods, release the copies of the work without further notice to the applicant if, within 10 working days after the applicant has been notified under subparagraph (3)(a)(ii), the applicant has not notified the Minister that they have commenced a proceeding for a final determination by the court of the issues referred to in paragraphs (1)(b) and (c).

(9)If, in a proceeding commenced under this section, the court is satisfied that the circumstances referred to in paragraphs (1)(b) and (c) existed, the court may make any order that it considers appropriate in the circumstances, including an order that the copies of the work be destroyed, or that they be delivered up to the plaintiff as the plaintiff’s property absolutely.

(10)For greater certainty, nothing in this section affects any remedy available under any other provision of this Act or any other Act of Parliament.

^note

44.2Importation of books#

(1)A court may, subject to this section, make an order described in subsection 44.12(3) in relation to a book where the court is satisfied that

(a)copies of the book are about to be imported into Canada, or have been imported into Canada but have not yet been released;

(b)copies of the book were made with the consent of the owner of the copyright in the book in the country where the copies were made, but were imported without the consent of the owner in Canada of the copyright in the book; and

(c)the copies would infringe copyright if they were made in Canada by the importer and the importer knows or should have known this.

(2)A court may make an order described in subsection 44.12(3) in relation to a book on application by

(a)the owner of the copyright in the book in Canada;

(b)the exclusive licensee of the copyright in the book in Canada; or

(c)the exclusive distributor of the book.

(4)Subsections 44.12(3) to (10) apply, with such modifications as the circumstances require, in respect of an order made under subsection (1).

^note

44.3Limitation#

No exclusive licensee of the copyright in a book in Canada, and no exclusive distributor of a book, may obtain an order under section 44.2 against another exclusive licensee of the copyright in that book in Canada or against another exclusive distributor of that book.^note

44.4Importation of other subject-matter#

Section 44.12 applies, with such modifications as the circumstances require, in respect of a sound recording, performer’s performance or communication signal, where a fixation or a reproduction of a fixation of it

(a)is about to be imported into Canada, or has been imported into Canada but has not yet been released;

(b)either

(i)was made without the consent of the person who then owned the copyright in the sound recording, performer’s performance or communication signal, as the case may be, in the country where the fixation or reproduction was made, or

(ii)was made elsewhere than in a country to which Part II extends; and

(c)would infringe the right of the owner of copyright in the sound recording, performer’s performance or communication signal if it was made in Canada by the importer and the importer knows or should have known this.

^note

45Exceptions#

(1)Notwithstanding anything in this Act, it is lawful for a person

(a)to import for their own use not more than two copies of a work or other subject-matter made with the consent of the owner of the copyright in the country where it was made;

(b)to import for use by a department of the Government of Canada or a province copies of a work or other subject-matter made with the consent of the owner of the copyright in the country where it was made;

(c)at any time before copies of a work or other subject-matter are made in Canada, to import any copies, except copies of a book, made with the consent of the owner of the copyright in the country where the copies were made, that are required for the use of a library, archive, museum or educational institution;

(d)to import, for the use of a library, archive, museum or educational institution, not more than one copy of a book that is made with the consent of the owner of the copyright in the country where the book was made; and

(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, except textbooks of a scientific, technical or scholarly nature for use within an educational institution in a course of instruction.

(2)An officer of customs may, in the officer’s discretion, require a person seeking to import a copy of a work or other subject-matter under this section to produce satisfactory evidence of the facts necessary to establish the person’s right to import the copy.

^note

Part V · Administration

Copyright Office

46Copyright Office#

The Copyright Office shall be attached to the Patent Office.^note

47Powers of Commissioner and Registrar#

The Commissioner of Patents shall exercise the powers conferred and perform the duties imposed on him by this Act under the direction of the Minister, and, in the absence of the Commissioner of Patents or if the Commissioner is unable to act, the Registrar of Copyrights or other officer temporarily appointed by the Minister may, as Acting Commissioner, exercise those powers and perform those duties under the direction of the Minister.^note

48Registrar#

There shall be a Registrar of Copyrights.^note

49Register of Copyrights, certificates and certified copies#

The Commissioner of Patents, the Registrar of Copyrights or an officer, clerk or employee of the Copyright Office may sign certificates and certified copies of the Register of Copyrights.^note

50Other duties of Registrar#

The Registrar of Copyrights shall perform such other duties in connection with the administration of this Act as may be assigned to him by the Commissioner of Patents.^note

51 #

[Repealed, 1992, c. 1, s. 48] (repealed)

52Control of business and officials#

The Commissioner of Patents shall, subject to the Minister, oversee and direct the officers, clerks and employees of the Copyright Office, have general control of the business thereof and perform such other duties as are assigned to him by the Governor in Council.^note

53Register to be evidence#

(1)The Register of Copyrights is evidence of the particulars entered in it, and a copy of an entry in the Register is evidence of the particulars of the entry if it is certified by the Commissioner of Patents, the Registrar of Copyrights or an officer, clerk or employee of the Copyright Office as a true copy.

(2)A certificate of registration of copyright is evidence that the copyright subsists and that the person registered is the owner of the copyright.

(2.1)A certificate of registration of an assignment of copyright is evidence that the right recorded on the certificate has been assigned and that the assignee registered is the owner of that right.

(2.2)A certificate of registration of a licence granting an interest in a copyright is evidence that the interest recorded on the certificate has been granted and that the licensee registered is the holder of that interest.

(3)A certified copy or certificate appearing to have been issued under this section is admissible in all courts without proof of the signature or official character of the person appearing to have signed it.

^note

Registration

54Register of Copyrights#

(1)The Minister shall cause to be kept at the Copyright Office a register to be called the Register of Copyrights in which may be entered

(a)the names or titles of works and of other subject-matter in which copyright subsists;

(b)the names and addresses of authors, performers, makers of sound recordings, broadcasters, owners of copyright, assignees of copyright, and persons to whom an interest in copyright has been granted by licence; and

(c)such other particulars as may be prescribed by regulation.

(2)[Repealed, 1997, c. 24, s. 31] (repealed)

(3)In the case of an encyclopaedia, newspaper, review, magazine or other periodical work, or work published in a series of books or parts, it is not necessary to make a separate entry for each number or part, but a single entry for the whole work is sufficient.

(4)There shall also be kept at the Copyright Office such indices of the Register established under this section as may be prescribed by regulation.

(5)The Register and indices established under this section shall at all reasonable times be open to inspection, and any person is entitled to make copies of or take extracts from the Register.

(6)Any registration made under the Copyright Act, chapter 70 of the Revised Statutes of Canada, 1906, has the same force and effect as if made under this Act.

(7)Any work in which copyright, operative in Canada, subsisted immediately before January 1, 1924 is registrable under this Act.

^note

55Copyright in works#

(1)Application for the registration of a copyright in a work may be made by or on behalf of the author of the work, the owner of the copyright in the work, an assignee of the copyright, or a person to whom an interest in the copyright has been granted by licence.

(2)An application under subsection (1) must be filed with the Copyright Office, be accompanied by the fee prescribed by or determined under the regulations, and contain the following information:

(a)the name and address of the owner of the copyright in the work;

(b)a declaration that the applicant is the author of the work, the owner of the copyright in the work, an assignee of the copyright, or a person to whom an interest in the copyright has been granted by licence;

(c)the category of the work;

(d)the title of the work;

(e)the name of the author and, if the author is dead, the date of the author’s death, if known;

(f)in the case of a published work, the date and place of the first publication; and

(g)any additional information prescribed by regulation.

^note

56Copyright in subject-matter other than works#

(1)Application for the registration of a copyright in subject-matter other than a work may be made by or on behalf of the owner of the copyright in the subject-matter, an assignee of the copyright, or a person to whom an interest in the copyright has been granted by licence.

(2)An application under subsection (1) must be filed with the Copyright Office, be accompanied by the fee prescribed by or determined under the regulations, and contain the following information:

(a)the name and address of the owner of the copyright in the subject-matter;

(b)a declaration that the applicant is the owner of the copyright in the subject-matter, an assignee of the copyright, or a person to whom an interest in the copyright has been granted by licence;

(c)whether the subject-matter is a performer’s performance, a sound recording or a communication signal;

(d)the title, if any, of the subject-matter;

(e)the date of

(i)in the case of a performer’s performance, its first fixation in a sound recording or, if it is not fixed in a sound recording, its first performance,

(ii)in the case of a sound recording, the first fixation, or

(iii)in the case of a communication signal, its broadcast; and

(f)any additional information prescribed by regulation.

^note

56.1Recovery of damages#

Where a person purports to have the authority to apply for the registration of a copyright under section 55 or 56 on behalf of another person, any damage caused by a fraudulent or erroneous assumption of such authority is recoverable in any court of competent jurisdiction.^note

57Registration of assignment or licence#

(1)The Registrar of Copyrights shall register an assignment of copyright, or a licence granting an interest in a copyright, on being furnished with

(a)the original instrument or a certified copy of it, or other evidence satisfactory to the Registrar of the assignment or licence; and

(b)the fee prescribed by or determined under the regulations.

(2)[Repealed, 1992, c. 1, s. 51] (repealed)

(3)Any assignment of copyright, or any licence granting an interest in a copyright, shall be adjudged void against any subsequent assignee or licensee for valuable consideration without actual notice, unless the prior assignment or licence is registered in the manner prescribed by this Act before the registering of the instrument under which the subsequent assignee or licensee claims.

(4)The Federal Court may, on application of the Registrar of Copyrights or of any interested person, order the rectification of the Register of Copyrights by

(a)the making of any entry wrongly omitted to be made in the Register,

(b)the expunging of any entry wrongly made in or remaining on the Register, or

(c)the correction of any error or defect in the Register,

and any rectification of the Register under this subsection shall be retroactive from such date as the Court may order.

^note

58Execution of instruments#

(1)Any assignment of a copyright, or any licence granting an interest in a copyright, may be executed, subscribed or acknowledged at any place in a treaty country, a Rome Convention country or a WPPT country by the assignor, licensor or secured or hypothecary debtor, before any notary public, commissioner or other official, or the judge of any court, who is authorized by law to administer oaths or certify documents in that place and who also subscribes their signature and affixes to, or impresses on, the assignment or licence their official seal or the seal of the court of which they are a judge.

(2)Any assignment of copyright, or any licence granting an interest in a copyright, may be executed, subscribed or acknowledged by the assignor, licensor or mortgagor, in any other foreign country before any notary public, commissioner or other official or the judge of any court of the foreign country, who is authorized to administer oaths or perform notarial acts in that foreign country and whose authority shall be proved by the certificate of a diplomatic or consular officer of Canada performing their functions in that foreign country.

(3)The official seal or seal of the court or the certificate of a diplomatic or consular officer is evidence of the execution of the instrument, and the instrument with the seal or certificate affixed or attached thereto is admissible as evidence in any action or proceeding brought under this Act without further proof.

(4)The provisions of subsections (1) and (2) shall be deemed to be permissive only, and the execution of any assignment of copyright, or any licence granting an interest in a copyright, may in any case be proved in accordance with the applicable rules of evidence.

^note

Fees

59Fees regulations#

The Governor in Council may make regulations

(a)prescribing fees, or the manner of determining fees, to be paid for anything required or authorized to be done in the administration of this Act; and

(b)prescribing the time and manner in which the fees must be paid.

^note

Part VI · Miscellaneous Provisions

Substituted Right

60Subsistence of substituted right#

(1)Where any person is immediately before January 1, 1924 entitled to any right in any work that is set out in column I of Schedule I, or to any interest in such a right, he is, as from that date, entitled to the substituted right set out in column II of that Schedule, or to the same interest in the substituted right, and to no other right or interest, and the substituted right shall subsist for the term for which it would have subsisted if this Act had been in force at the date when the work was made, and the work had been one entitled to copyright thereunder.

(2)Where the author of any work in which any right that is set out in column I of Schedule I subsists on January 1, 1924 has, before that date, assigned the right or granted any interest therein for the whole term of the right, then at the date when, but for the passing of this Act, the right would have expired, the substituted right conferred by this section shall, in the absence of express agreement, pass to the author of the work, and any interest therein created before January 1, 1924 and then subsisting shall determine, but the person who immediately before the date at which the right would have expired was the owner of the right or interest is entitled at his option either

(a)on giving such notice as is hereinafter mentioned, to an assignment of the right or the grant of a similar interest therein for the remainder of the term of the right for such consideration as, failing agreement, may be determined by arbitration, or

(b)without any assignment or grant, to continue to reproduce or perform the work in like manner as theretofore subject to the payment, if demanded by the author within three years after the date at which the right would have expired, of such royalties to the author as, failing agreement, may be determined by arbitration, or, where the work is incorporated in a collective work and the owner of the right or interest is the proprietor of that collective work, without any payment,

and the notice referred to in paragraph (a) must be given not more than one year or less than six months before the date at which the right would have expired, and must be sent by registered post to the author, or, if he cannot with reasonable diligence be found, advertised in the Canada Gazette.

(3)For the purposes of this section, author includes the legal representatives of a deceased author.

(4)Subject to this Act, copyright shall not subsist in any work made before January 1, 1924 otherwise than under and in accordance with the provisions of this section.

^note

Clerical Errors

61Clerical errors do not invalidate#

Clerical errors in any instrument of record in the Copyright Office do not invalidate the instrument, but they may be corrected under the authority of the Registrar of Copyrights.^note

Regulations

62Regulations#

(1)The Governor in Council may make regulations

(a)for the purposes of paragraph 30.01(6)(d), respecting measures, which may vary according to circumstances specified in the regulations;

(b)for the purposes of paragraph 30.02(3)(d), respecting measures, which may vary according to circumstances specified in the regulations;

(c)prescribing the form of a notice of claimed infringement referred to in section 41.25 and prescribing the information that must be and that is not permitted to be contained in it;

(d)prescribing anything that by this Act is to be prescribed by regulation; and

(e)generally for carrying out the purposes and provisions of this Act.

(2)The Governor in Council may make orders for altering, revoking or varying any order in council made under this Act, but any order made under this section does not affect prejudicially any rights or interests acquired or accrued at the date when the order comes into operation, and shall provide for the protection of those rights and interests.

Industrial Designs and Topographies

63 #

[Repealed, 1997, c. 24, s. 38] (repealed)

64Interpretation#

(1)In this section and section 64.1,

article means any thing that is made by hand, tool or machine; (objet)

design means features of shape, configuration, pattern or ornament and any combination of those features that, in a finished article, appeal to and are judged solely by the eye; (dessin)

useful article means an article that has a utilitarian function and includes a model of any such article; (objet utilitaire)

utilitarian function, in respect of an article, means a function other than merely serving as a substrate or carrier for artistic or literary matter. (fonction utilitaire)

(2)Where copyright subsists in a design applied to a useful article or in an artistic work from which the design is derived and, by or under the authority of any person who owns the copyright in Canada or who owns the copyright elsewhere,

(a)the article is reproduced in a quantity of more than fifty, or

(b)where the article is a plate, engraving or cast, the article is used for producing more than fifty useful articles,

(c)to reproduce the design of the article or a design not differing substantially from the design of the article by

(i)making the article, or

(ii)making a drawing or other reproduction in any material form of the article, or

(d)to do with an article, drawing or reproduction that is made as described in paragraph (c) anything that the owner of the copyright has the sole right to do with the design or artistic work in which the copyright subsists.

it shall not thereafter be an infringement of the copyright or the moral rights for anyone

(3)Subsection (2) does not apply in respect of the copyright or the moral rights in an artistic work in so far as the work is used as or for

(a)a graphic or photographic representation that is applied to the face of an article;

(b)a trademark or a representation thereof or a label;

(c)material that has a woven or knitted pattern or that is suitable for piece goods or surface coverings or for making wearing apparel;

(d)an architectural work that is a building or a model of a building;

(e)a representation of a real or fictitious being, event or place that is applied to an article as a feature of shape, configuration, pattern or ornament;

(f)articles that are sold as a set, unless more than fifty sets are made; or

(g)such other work or article as may be prescribed by regulation.

(4)Subsections (2) and (3) apply only in respect of designs created after the coming into force of this subsection, and section 64 of this Act and the Industrial Design Act, as they read immediately before the coming into force of this subsection, as well as the rules made under them, continue to apply in respect of designs created before that coming into force.

64.1Non-infringement re useful article features#

(1)The following acts do not constitute an infringement of the copyright or moral rights in a work:

(a)applying to a useful article features that are dictated solely by a utilitarian function of the article;

(b)by reference solely to a useful article, making a drawing or other reproduction in any material form of any features of the article that are dictated solely by a utilitarian function of the article;

(c)doing with a useful article having only features described in paragraph (a), or with a drawing or reproduction made as described in paragraph (b), anything that the owner of the copyright has the sole right to do with the work; and

(d)using any method or principle of manufacture or construction.

(2)Nothing in subsection (1) affects

(a)the copyright, or

(b)the moral rights, if any,

in any sound recording, cinematograph film or other contrivance by means of which a work may be mechanically reproduced or performed.

^note

64.2Application of Act to topographies#

(1)This Act does not apply, and shall be deemed never to have applied, to any topography or to any design, however expressed, that is intended to generate all or part of a topography.

(2)For greater certainty, the incorporation of a computer program into an integrated circuit product or the incorporation of a work into such a computer program may constitute an infringement of the copyright or moral rights in a work.

(3)In this section, “topography” and “integrated circuit product” have the same meaning as in the Integrated Circuit Topography Act.

^note

65 #

[Repealed, 1993, c. 44, s. 69] (repealed)

Part VII · Copyright Board

66Establishment#

(1)There is established a Board to be known as the Copyright Board, consisting of not more than five members, including a Chair and a Vice-chair, to be appointed by the Governor in Council.

(2)The members of the Board shall be appointed to serve either full-time or part-time.

(3)The Chair must be a judge, either sitting or retired, of a superior court.

(4)Each member of the Board shall hold office during good behaviour for a term not exceeding five years, but may be removed at any time by the Governor in Council for cause.

(5)A member of the Board is eligible to be re-appointed once only.

(6)A member of the Board shall not be employed in the public service within the meaning of the Federal Public Sector Labour Relations Act during the member’s term of office.

(7)A full-time member of the Board, other than the Chair, is deemed to be employed in

(a)the public service for the purposes of the Public Service Superannuation Act; and

(b)the federal public administration for the purposes of any regulations made pursuant to section 9 of the Aeronautics Act.

^note

66.1Duties of Chair#

(1)The Chair shall direct the work of the Board and apportion its work among its members.

(2)If the Chair is absent or incapacitated or if the office of Chair is vacant, the Vice-chair has all the powers and functions of the Chair during the absence, incapacity or vacancy.

(3)The Vice-chair is the chief executive officer of the Board and has supervision over and direction of the Board and its staff.

^note

66.2Remuneration and expenses#

The members of the Board shall be paid such remuneration as may be fixed by the Governor in Council and are entitled to be paid reasonable travel and living expenses incurred by them in the course of their duties under this Act while absent from their ordinary place of residence.^note

66.3Conflict of interest prohibited#

(1)A member of the Board shall not, directly or indirectly, engage in any activity, have any interest in a business or accept or engage in any office or employment that is inconsistent with the member’s duties.

(2)Where a member of the Board becomes aware that he is in a conflict of interest contrary to subsection (1), the member shall, within one hundred and twenty days, terminate the conflict or resign.

^note

66.4Staff#

(1)Such officers and employees as are necessary for the proper conduct of the work of the Board shall be appointed in accordance with the Public Service Employment Act.

(2)The officers and employees referred to in subsection (1) shall be deemed to be employed in the public service for the purposes of the Public Service Superannuation Act.

(3)The Board may engage on a temporary basis the services of persons having technical or specialized knowledge to advise and assist in the performance of its duties and the Board may, in accordance with Treasury Board directives, fix and pay the remuneration and expenses of those persons.

^note

66.5Concluding matters after membership expires#

(1)A member of the Board whose term expires may conclude the matters that the member has begun to consider.

(2)Matters before the Board shall be decided by a majority of the members of the Board and the presiding member shall have a second vote in the case of a tie.

^note

66.501Fair and equitable#

The Board shall fix royalty and levy rates and any related terms and conditions under this Act that are fair and equitable, in consideration of

(a)what would have been agreed upon between a willing buyer and a willing seller acting in a competitive market with all relevant information, at arm’s length and free of external constraints;

(b)the public interest;

(c)any regulation made under subsection 66.91(1); and

(d)any other criterion that the Board considers appropriate.

^note

66.502Informal and expeditious#

All matters before the Board shall be dealt with as informally and expeditiously as the circumstances and considerations of fairness permit but, in any case, within any period or no later than any day provided for under this Act.^note

66.503For greater certainty#

For greater certainty, any person or entity may authorize any other person or entity to act on their behalf in any matter before the Board.^note

66.504Case manager#

(1)The Chair may assign a member, officer or employee of the Board or a person engaged under subsection 66.4(3) to act as a case manager of a matter before the Board.

(2)The case manager may give any directions or make any orders with respect to the case management of the matter, but is not permitted to make a direction or order that is inconsistent with

(a)this Act;

(b)regulations made under subsection 66.6(1), unless authorized to do so under regulations made under paragraph 66.6(1.1)(b); or

(c)regulations made under paragraph 66.91(2)(a) to (c), unless authorized to do so under regulations made under paragraph 66.91(2)(d).

(3)A direction given, or an order made, by a case manager is deemed to be a direction or order of the Board, including for the purposes of paragraph 28(1)(j) of the Federal Courts Act.

(4)The Chair may delegate his or her power under subsection (1) to the Vice-chair.

^note

66.51Interim decisions#

The Board may, on application, make an interim decision.^note

66.52Variation of decisions#

A decision of the Board respecting royalties or their related terms and conditions that is made under subsection 70(1), 71(2), 76.1(1) or 83(8) may, on application, be varied by the Board if, in its opinion, there has been a material change in circumstances since the decision was made.^note

66.6Regulations#

(1)The Board may, with the approval of the Governor in Council, make regulations governing

(a)the practice and procedure in respect of the Board’s hearings, including the number of members of the Board that constitutes a quorum;

(b)the time and manner in which applications and notices must be made or given;

(c)the establishment of forms for the making or giving of applications and notices; and

(d)the carrying out of the work of the Board, the management of its internal affairs and the duties of its officers and employees.

(1.1)The Board may, with the approval of the Governor in Council, make regulations governing the case management of matters before the Board, including regulations

(a)governing the directions a case manager may give and the orders they may make; and

(b)authorizing a case manager to give a direction or make an order that adapts, restricts or excludes the application of any provision of regulations made under subsection (1) to a matter or any step in a matter.

(2)A copy of each regulation that the Board proposes to make under subsection (1) or (1.1) shall be published in the Canada Gazette at least 60 days before the regulation’s proposed effective date, and a reasonable opportunity shall be given to interested persons to make representations with respect to the regulation.

(3)No proposed regulation that has been published pursuant to subsection (2) need again be published under that subsection, whether or not it has been altered as a result of representations made with respect thereto.

^note

66.7General powers, etc.#

(1)The Board has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its decisions and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in a superior court of record.

(2)Any decision of the Board may, for the purposes of its enforcement, be made an order of the Federal Court or of any superior court and is enforceable in the same manner as an order thereof.

(3)To make a decision of the Board an order of a court, the usual practice and procedure of the court in such matters may be followed or a certified copy of the decision may be filed with the registrar of the court and thereupon the decision becomes an order of the court.

(4)Where a decision of the Board that has been made an order of a court is varied by a subsequent decision of the Board, the order of the court shall be deemed to have been varied accordingly and the subsequent decision may, in the same manner, be made an order of the court.

^note

66.71Distribution, publication of notices#

Independently of any other provision of this Act relating to the distribution or publication of information or documents by the Board, the Board may at any time cause to be distributed or published, in any manner and on any terms and conditions that it sees fit, any notice that it sees fit to be distributed or published.^note

66.8Studies#

The Board shall conduct such studies with respect to the exercise of its powers as are requested by the Minister.^note

66.9Report#

(1)The Board shall, not later than August 31 in each year, submit to the Governor in Council through the Minister an annual report on the Board’s activities for the preceding year describing briefly the applications made to the Board, the Board’s decisions and any other matter that the Board considers relevant.

(2)The Minister shall cause a copy of each annual report to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives the report.

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66.91Regulations#

(1)The Governor in Council may make regulations issuing policy directions to the Board and establishing general criteria to be applied by the Board or to which the Board must have regard

(a)in establishing fair and equitable royalties to be paid pursuant to this Act; and

(b)in rendering its decisions in any matter within its jurisdiction.

(2)The Governor in Council may make regulations

(a)establishing the day by which, or the period within which, a matter before the Board — and any procedural step in the matter, whether set out in a provision of this Act or not — must be completed;

(b)establishing the minimum length of the effective period for the purposes of subsections 68.1(2) and 83(4);

(c)establishing a day for the purposes of paragraph 73.4(b); and

(d)authorizing the Board or a case manager to give a direction or make an order that adapts, restricts or excludes the application of any provision of regulations made under any of paragraphs (a) to (c) to a matter or any step in a matter.

(3)Regulations made under subsection (2) prevail over regulations made under subsection 66.6(1) or (1.1) to the extent of an inconsistency or conflict between them.

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Part VII.1 · Collective Administration of Copyright

Collective Societies

67Filing of proposed tariffs#

(1)A collective society may file a proposed tariff with the Board for the purpose of establishing royalties with respect to rights the collective society administers under section 3, 15, 18, 19 or 21.

(2)However, a collective society shall file a proposed tariff with the Board for the purpose of establishing royalties referred to in subsection 29.7(2) or (3) or paragraph 31(2)(d).

(3)A collective society may enter into agreements for the purpose of establishing royalties with respect to rights the collective society administers under section 3, 15, 18, 19 or 21, other than royalties referred to in subsection 29.7(2) or (3) or paragraph 31(2)(d).

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67.1Designation of collective society — paragraph 19(2)(a)#

On application by a collective society, the Board may designate the collective society as the sole collective society authorized to collect all royalties referred to in paragraph 19(2)(a) with respect to a sound recording of a musical work.^note

67.2Requests regarding repertoire#

A collective society shall answer, within a reasonable time, all reasonable requests from any person for information about its repertoire of works, performer’s performances, sound recordings or communication signals.^note

67.3 #

[Repealed, 1997, c. 24, s. 45] (repealed)

Tariffs

Proposed Tariffs

68Filing#

A proposed tariff must be filed no later than October 15 of the second calendar year before the calendar year in which the proposed tariff is to take effect or, if a day is established under regulations made under subsection 66.91(2), no later than that day.^note

68.1Form and content#

(1)A proposed tariff must be filed in both official languages and include

(a)the acts to which the tariff is to apply;

(b)the proposed royalty rates and any related terms and conditions; and

(c)the effective period of the proposed tariff.

(2)A proposed tariff’s effective period must be at least three calendar years or, if a minimum period is established under regulations made under subsection 66.91(2), at least that minimum period.

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68.2Publication and notification#

The Board, in the manner that it sees fit,

(a)shall publish the proposed tariff as well as a notice that any objection to the proposed tariff must be filed within the period set out in subsection 68.3(2); and

(b)may distribute a notice — or cause it to be distributed or published, on any terms and conditions that the Board sees fit — of the publication of the tariff and of the notice referred to in paragraph (a) to any person affected by the proposed tariff.

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68.3Filing of objection#

(1)An objection to a proposed tariff may be filed with the Board by

(a)an educational institution, if the proposed tariff is filed for the purpose of collecting royalties referred to in subsection 29.7(2) or (3);

(b)a retransmitter, as defined in subsection 31(1), if the proposed tariff is filed for the purpose of collecting royalties referred to in paragraph 31(2)(d); or

(c)any user, in any other case.

(2)An objection shall be filed no later than the 30th day after the day on which the Board published the proposed tariff under paragraph 68.2(a) or, if a day is established under the regulations made under subsection 66.91(2), no later than that day.

(3)The Board shall provide a copy of the filed objection to the collective society.

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68.4Reply to objection#

(1)The collective society may file a reply to an objection with the Board.

(2)The Board shall provide a copy of the filed reply to the person or entity that filed the objection.

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Withdrawal or Amendment of Proposed Tariff

69Request to withdraw or amend#

A collective society may, before a proposed tariff filed by it has been approved by the Board, make an application to the Board requesting that

(a)the proposed tariff be withdrawn; or

(b)a reference to an act set out in the proposed tariff be excluded from the approved tariff for all of the proposed effective period or, despite subsection 68.1(2), for a portion of that period.

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69.1Approval by Board#

(1)The Board shall approve an application made under section 69 if it is satisfied that

(a)the collective society has provided sufficient public notice of its intention to make the application;

(b)every person who, in respect of the proposed effective period, has paid royalties that would not be payable if the application were approved has

(i)consented to the application,

(ii)received a refund of the royalties, or

(iii)entered into an agreement under subsection 67(3) that covers the act, repertoire or proposed effective period that is the subject of the application; and

(c)in the case of an application made under paragraph 69(b) with respect to a portion of the proposed effective period, the application is not made for the purpose of improperly circumventing the required minimum effective period.

(2)For greater certainty, the approval of an application made under section 69 does not preclude the collective society from filing, in accordance with this Act, a proposed tariff that deals in whole or in part with the act, repertoire or proposed effective period that was the subject of the application.

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Approval of Tariffs

70Approval#

(1)The Board shall — within the period, if any, that is established under regulations made under subsection 66.91(2) — approve the proposed tariff after making any alterations to the royalty rates and the related terms and conditions, or fixing any new related terms and conditions, that the Board considers appropriate.

(2)In approving a proposed tariff for the performance in public or the communication to the public by telecommunication of performer’s performances of musical works, or of sound recordings embodying such performer’s performances, the Board shall ensure that

(a)the tariff applies in respect of performer’s performances and sound recordings only in the situations referred to in section 20;

(b)the tariff does not, because of linguistic and content requirements of Canada’s broadcasting policy set out in section 3 of the Broadcasting Act, place some users that are subject to that Act at a greater financial disadvantage than others; and

(c)the payment of royalties by users under section 19 will be made in a single payment.

(3)The Board shall fix a preferential royalty rate for small cable transmission systems in approving a tariff for

(a)the performance in public of musical works or dramatico-musical works, of performer’s performances of such works, or of sound recordings embodying such works; or

(4)The Board shall fix a preferential royalty rate for small retransmission systems in approving a tariff for royalties referred to in paragraph 31(2)(d).

(5)For greater certainty, the Board may determine, in respect of any tariff that it approves, the portion of the royalties that is to be paid to each collective society.

(6)For greater certainty, the Board must not discriminate between owners of copyright on the ground of their nationality or residence in approving a tariff for royalties referred to in subsection 29.7(2) or (3) or paragraph 31(2)(d).

(7)The Governor in Council may make regulations defining “small cable transmission system” and “small retransmission system” for the purposes of this section.

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70.1Publication of approved tariff#

The Board shall publish the approved tariff in the Canada Gazette and provide a copy of it, together with the reasons for the Board’s decision, to

(a)the collective society that filed the proposed tariff;

(b)every collective society that is authorized to collect royalties under the tariff;

(c)every person or entity that filed an objection under section 68.3; and

(d)any other person or entity that, in the Board’s opinion, ought to receive the copy and reasons.

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