PART III
INFRINGEMENT OF COPYRIGHT AND MORAL RIGHTS AND EXCEPTIONS TO INFRINGEMENT
Infringement of Copyright
Infringement generally
27. (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. (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.
Knowledge of importer
(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.
Plates
(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.
Public performance for profit
(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.
R.S., 1985, c. C-42, s. 27; R.S., 1985, c. 1 (3rd Supp.), s. 13, c. 10 (4th Supp.), s. 5; 1993, c. 44, s. 64; 1997, c. 24, s. 15.
Parallel Importation of Books
Importation of books
27.1 (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.
Secondary infringement
(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).
Limitation
(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.
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.
Notice
(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.
Regulations
(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.
1997, c. 24, s. 15.
28. [Repealed, 1997, c. 24, s. 15]
28.01 [Repealed, 1997, c. 24, s. 16]
Moral Rights Infringement
Infringement generally
28.1 Any act or omission that is contrary to any of the moral rights of the author of a work is, in the absence of consent by the author, an infringement of the moral rights.
R.S., 1985, c. 10 (4th Supp.), s. 6.
Nature of right of integrity
28.2 (1) The author’s right to the integrity of a work is infringed only if the work is, to the prejudice of the honour or reputation of the author, (a) distorted, mutilated or otherwise modified; or
(b) used in association with a product, service, cause or institution.
Where prejudice deemed
(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.
(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.
R.S., 1985, c. 10 (4th Supp.), s. 6.
Research or private study
29. Fair dealing for the purpose of research or private study does not infringe copyright.
R.S., 1985, c. C-42, s. 29; R.S., 1985, c. 10 (4th Supp.), s. 7; 1994, c. 47, s. 61; 1997, c. 24, s. 18.
Criticism or review
29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:
(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.
1997, c. 24, s. 18.
News reporting
29.2 Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned:
(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.
1997, c. 24, s. 18.
Acts Undertaken without Motive of Gain
Motive of gain
29.3 (1) No action referred to in section 29.4, 29.5, 30.2 or 30.21 may be carried out with motive of gain.
Cost recovery
(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.
1997, c. 24, s. 18.
(a) to make a manual reproduction of a work onto a dry-erase board, flip chart or other similar surface intended for displaying handwritten material, or
(b) to make a copy of a work to be used to project an image of that copy using an overhead projector or similar device
for the purposes of education or training on the premises of an educational institution.
(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.
Where work commercially available
(3) Except in the case of manual reproduction, the exemption from copyright infringement provided by paragraph (1)(b) and subsection (2) does not apply if the work or other subject-matter is commercially available in a medium that is appropriate for the purpose referred to in that paragraph or subsection, as the case may be.
1997, c. 24, s. 18.
Performances
29.5 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; and
(c) the performance in public of a work or other subject-matter at the time of its communication to the public by telecommunication.
1997, c. 24, s. 18.
News and commentary
29.6 (1) Subject to subsection (2) and section 29.9, it is not an infringement of copyright for an educational institution or a person acting under its authority to (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, at any time or times within one year after the making of a copy under paragraph (a), before an audience consisting primarily of students of the educational institution on its premises for educational or training purposes.
(a) on the expiration of one year after making a copy under paragraph (1)(a), pay the royalties and comply with any terms and conditions fixed under this Act for the making of the copy or destroy the copy; and
(b) where it has paid the royalties referred to in paragraph (a), pay the royalties and comply with any terms and conditions fixed under this Act for any performance in public of the copy after the expiration of that year.
1997, c. 24, s. 18.
Reproduction of broadcast
29.7 (1) Subject to subsection (2) and section 29.9, it is not an infringement of copyright for an educational institution or a person acting under its authority to (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.
Royalties for reproduction
(2) An educational institution that has not destroyed the copy by the expiration of the thirty days infringes copyright in the work or other subject-matter unless it pays any royalties, and complies with any terms and conditions, fixed under this Act for the making of the copy.
Royalties for performance
(3) It is not an infringement of copyright for the educational institution or a person acting under its authority to perform the copy in public for educational or training purposes on the premises of the educational institution before an audience consisting primarily of students of the educational institution if the educational institution pays the royalties and complies with any terms and conditions fixed under this Act for the performance in public.
1997, c. 24, s. 18.
Unlawful reception
29.8 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.
1997, c. 24, s. 18.
(a) makes a copy of a news program or a news commentary program and performs it pursuant to section 29.6, or
(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.
Regulations
(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 referred to in section 71.
1997, c. 24, s. 18.
Literary collections
30. 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.
R.S., 1985, c. C-42, s. 30; R.S., 1985, c. 10 (4th Supp.), s. 7; 1997, c. 24, s. 18.
Libraries, Archives and Museums
Management and maintenance of collection
30.1 (1) It is not an infringement of copyright for a library, archive or museum or a person acting under the authority of a library, archive or museum to make, 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 original is currently in an obsolete format or the technology required to use the original is unavailable;
(d) for the purposes of internal record-keeping and cataloguing;
(e) for insurance purposes or police investigations; or
(f) if necessary for restoration.
Limitation
(2) Paragraphs (1)(a) to (c) do not apply where an appropriate copy is commercially available in a medium and of a quality that is appropriate for the purposes of subsection (1).
Destruction of intermediate copies
(3) If a person must make an intermediate copy in order to make a copy under subsection (1), the person must destroy the intermediate copy as soon as it is no longer needed.
Regulations
(4) The Governor in Council may make regulations with respect to the procedure for making copies under subsection (1).
1997, c. 24, s. 18; 1999, c. 31, s. 59(E).
Research or private study
30.2 (1) It is not an infringement of copyright for a library, archive or museum or a person acting under its authority to do anything on behalf of any person that the person may do personally under section 29 or 29.1.
Copies of articles for research, etc.
(2) It is not an infringement of copyright for a library, archive or museum or a person acting under the authority of a library, archive or museum to make, by reprographic reproduction, for any person requesting to use the copy for research or private study, a copy of a work that is, or that is contained in, an article published in
(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.
Restriction
(3) Paragraph (2)(b) does not apply in respect of a work of fiction or poetry or a dramatic or musical work.
Conditions
(4) A library, archive or museum may make a copy under subsection (2) only on condition that
(a) the person for whom the copy will be made has satisfied the library, archive or museum that the person will not use the copy for a purpose other than research or private study; and
(b) the person is provided with a single copy of the work.
Patrons of other libraries, etc.
(5) A library, archive or museum or a person acting under the authority of a library, archive or museum may do, on behalf of a person who is a patron of another library, archive or museum, anything under subsection (1) or (2) in relation to printed matter that it is authorized by this section to do on behalf of a person who is one of its patrons, but the copy given to the patron must not be in digital form.
Destruction of intermediate copies
(5.1) Where an intermediate copy is made in order to copy a work referred to in subsection (5), once the copy is given to the patron, the intermediate copy must be destroyed.
Regulations
(6) The Governor in Council may, for the purposes of this section, make regulations
(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.
1997, c. 24, s. 18.
Copying works deposited in archive
30.21 (1) It is not an infringement of copyright for an archive to make a copy, in accordance with subsection (3), of an unpublished work that is deposited in the archive.
Notice
(2) When a person deposits a work in an archive, the archive must give the person notice that it may copy the work in accordance with this section.
(a) the person who deposited the work, if a copyright owner, did not, at the time the work was deposited, prohibit its copying;
(b) copying has not been prohibited by any other owner of copyright in the work; and
(c) the archive is satisfied that the person for whom it is made will use the copy only for purposes of research or private study and makes only one copy for that person.
Regulations
(4) The Governor in Council may prescribe the manner and form in which the conditions in subsection (3) may be met.
(5) to (7) [Repealed, 2004, c. 11, s. 21]
1997, c. 24, s. 18; 1999, c. 31, s. 60(E); 2004, c. 11, s. 21.
Machines Installed in Educational Institutions, Libraries, Archives and Museums
(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.
Application
(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 section 70.2, fixed the royalties and related terms and conditions in respect of a licence;
(c) a tariff has been approved in accordance with section 70.15; or
(d) a collective society has filed a proposed tariff in accordance with section 70.13.
Order
(3) Where a collective society offers to negotiate or has begun to negotiate an agreement referred to in paragraph (2)(a), the Board may, at the request of either party, order that the educational institution, library, archive or museum be treated as an institution to which subsection (1) applies, during the period specified in the order.
Agreement with copyright owner
(4) Where an educational institution, library, archive or museum has entered into an agreement with a copyright owner other than a collective society respecting reprographic reproduction, subsection (1) applies only in respect of the works of the copyright owner that are covered by the agreement.
Regulations
(5) The Governor in Council may, for the purposes of paragraph 1(c), prescribe by regulation the manner of affixing and location of notices and the dimensions, form and contents of notices.
1997, c. 24, s. 18.
Libraries, Archives and Museums in Educational Institutions
Library and Archives of Canada
Permitted acts
30.5 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.
1997, c. 24, s. 18; 2004, c. 11, s. 25.
Permitted acts
30.6 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 to
(a) make a single reproduction of the copy by adapting, modifying or converting the computer program or translating it into another computer language if the person proves that the reproduced copy is
(i) essential for the compatibility of the computer program with a particular computer,
(ii) solely for the person’s own use, and
(iii) destroyed immediately after the person ceases to be the owner of the copy; or
(b) make a single reproduction for backup purposes of the copy or of a reproduced copy referred to in paragraph (a) if the person proves that the reproduction for backup purposes is destroyed immediately when the person ceases to be the owner of the copy of the computer program.
1997, c. 24, s. 18.
Incidental use
30.7 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.
1997, c. 24, s. 18.
Ephemeral recordings
30.8 (1) It is not an infringement of copyright for a programming undertaking to fix or reproduce in accordance with this section a performer’s performance or work, other than a cinematographic work, that is performed live or a sound recording that is performed at the same time as the performer’s performance or work, if the undertaking (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.
Record keeping
(2) The programming undertaking must record the dates of the making and destruction of all fixations and reproductions and any other prescribed information about the fixation or reproduction, and keep the record current.
Right of access by copyright owners
(3) The programming undertaking must make the record referred to in subsection (2) available to owners of copyright in the works, sound recordings or performer’s performances, or their representatives, within twenty-four hours after receiving a request.
Destruction
(4) The programming undertaking must destroy the fixation or reproduction within thirty days after making it, unless
(a) the copyright owner authorizes its retention; or
(b) it is deposited in an archive, in accordance with subsection (6).
Royalties
(5) Where the copyright owner authorizes the fixation or reproduction to be retained after the thirty days, the programming undertaking must pay any applicable royalty.
Archive
(6) Where the programming undertaking considers a fixation or reproduction to be of an exceptional documentary character, the undertaking may, with the consent of an official archive, deposit it in the official archive and must notify the copyright owner, within thirty days, of the deposit of the fixation or reproduction.
Definition of “official archive”
(7) In subsection (6), “official archive” means the 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.
Application
(8) This section does not apply where a licence is available from a collective society to make the fixation or reproduction of the performer’s performance, work or sound recording.
Telecommunications by networks
(9) A broadcasting undertaking, as defined in the Broadcasting Act, may make a single reproduction of a fixation or reproduction made by a programming undertaking and communicate it to the public by telecommunication, within the period referred to in subsection (4), if the broadcasting undertaking meets the conditions set out in subsection (1) and is part of a prescribed network that includes the programming undertaking.
Limitations
(10) The reproduction and communication to the public by telecommunication must be made
(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.
(a) a programming undertaking as defined in subsection 2(1) of the Broadcasting 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, in respect of the programs that it originates.
The undertaking must hold a broadcasting licence issued by the Canadian Radio-television and Telecommunications Commission under the Broadcasting Act.
1997, c. 24, s. 18; 2004, c. 11, s. 26.
Pre-recorded recordings
30.9 (1) It is not an infringement of copyright for a broadcasting undertaking to reproduce in accordance with this section a sound recording, or a performer’s performance or work that is embodied in a sound recording, solely for the purpose of transferring it to a format appropriate for broadcasting, if the undertaking (a) owns the copy of the sound recording, performer’s performance or work and that copy is authorized by the owner of the copyright;
(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.
Record keeping
(2) The broadcasting undertaking must record the dates of the making and destruction of all reproductions and any other prescribed information about the reproduction, and keep the record current.
Right of access by copyright owners
(3) The broadcasting undertaking must make the record referred to in subsection (2) available to owners of copyright in the sound recordings, performer’s performances or works, or their representatives, within twenty-four hours after receiving a request.
Destruction
(4) The broadcasting undertaking must destroy the reproduction when it no longer possesses the sound recording or performer’s performance or work embodied in the sound recording, or at the latest within thirty days after making the reproduction, unless the copyright owner authorizes the reproduction to be retained.
Royalty
(5) If the copyright owner authorizes the reproduction to be retained, the broadcasting undertaking must pay any applicable royalty.
Application
(6) This section does not apply if a licence is available from a collective society to reproduce the sound recording, performer’s performance or work.
Definition of “broadcasting undertaking”
(7) In this section, “broadcasting undertaking” means a broadcasting undertaking as defined in subsection 2(1) of the Broadcasting Act that holds a broadcasting licence issued by the Canadian Radio-television and Telecommunications Commission under that Act.
1997, c. 24, s. 18.
“retransmitter”
« retransmetteur »
“retransmitter” means a person who performs a function comparable to that of a cable retransmission system, but does not include a new media retransmitter;
“signal”
« signal »
“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.
(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).
Regulations
(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.
R.S., 1985, c. C-42, s. 31; R.S., 1985, c. 10 (4th Supp.), s. 7; 1988, c. 65, s. 63; 1997, c. 24, ss. 16, 52(F); 2002, c. 26, s. 2.
Persons with Perceptual Disabilities
Reproduction in alternate format
32. (1) It is not an infringement of copyright for a person, at the request of a person with a perceptual disability, or for a non-profit organization acting for his or her benefit, to (a) make a copy or sound recording of a literary, musical, artistic or dramatic work, other than a cinematographic work, 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; 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.
Limitation
(2) Subsection (1) does not authorize the making of a large print book.
Limitation
(3) Subsection (1) does not apply where the work or sound recording is commercially available in a format specially designed to meet the needs of any person referred to in that subsection, within the meaning of paragraph (a) of the definition “commercially available”.
R.S., 1985, c. C-42, s. 32; R.S., 1985, c. 10 (4th Supp.), s. 7; 1997, c. 24, s. 19.
(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.
Limitation
(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.
Destruction of fixation or copy
(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.
1997, c. 24, s. 19.
(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; or
(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.
Further permitted acts
(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.
Further permitted acts
(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.
1997, c. 24, s. 19.
No right to equitable remuneration
32.3 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.
1997, c. 24, s. 19.
Compensation for Acts Done Before Recognition of Copyright of Performers and Broadcasters
Certain rights and interests protected
32.4 (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).
Compensation
(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.
Limitation
(3) Nothing in subsections (1) and (2) affects any right of a performer available in law or equity.
1997, c. 24, s. 19.
Certain rights and interests protected
32.5 (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).
Compensation
(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.
Limitation
(3) Nothing in subsections (1) and (2) affects any right of a performer available in law or equity.
1997, c. 24, s. 19.
Compensation for Acts Done Before Recognition of Copyright or Moral Rights
Certain rights and interests protected
33. (1) Notwithstanding subsections 27(1), (2) and (4) and sections 27.1, 28.1 and 28.2, where a person has, before the later of January 1, 1996 and the day on which a country becomes a treaty country, incurred an expenditure or liability in connection with, or in preparation for, the doing of an act that would have infringed a copyright owner’s copyright or an author’s moral rights had that country been a treaty 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 latest of those days
is not prejudiced or diminished by reason only that that country has become a treaty country, except as provided by an order of the Board made under subsection 78(3).
Compensation
(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.
R.S., 1985, c. C-42, s. 33; R.S., 1985, c. 10 (4th Supp.), s. 7; 1997, c. 24, s. 19.
Copyright
34. (1) Where copyright has been infringed, the owner of the copyright is, subject to this Act, entitled to all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right.
Moral rights
(2) In any proceedings for an infringement of a moral right of an author, the court may grant to the author or to the person who holds the moral rights by virtue of subsection 14.2(2) or (3), as the case may be, all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right.
Costs
(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.
Summary proceedings
(4) The following proceedings may be commenced or proceeded with by way of application or action and shall, in the case of an application, be heard and determined without delay and in a summary way:
(a) proceedings for infringement of copyright or moral rights;
(b) proceedings taken under section 44.1, 44.2 or 44.4; and
(c) proceedings taken in respect of
(i) a tariff certified by the Board under Part VII or VIII, or
(ii) agreements referred to in section 70.12.
Practice and procedure
(5) The rules of practice and procedure, in civil matters, of the court in which proceedings are commenced by way of application apply to those proceedings, but where those rules do not provide for the proceedings to be heard and determined without delay and in a summary way, the court may give such directions as it considers necessary in order to so provide.
Actions
(6) The court in which proceedings are instituted by way of application may, where it considers it appropriate, direct that the proceeding be proceeded with as an action.
Meaning of “application”
(7) In this section, “application” means a proceeding that is commenced other than by way of a writ or statement of claim.
R.S., 1985, c. C-42, s. 34; R.S., 1985, c. 10 (4th Supp.), s. 8; 1993, c. 15, s. 3(E), c. 44, s. 65; 1994, c. 47, s. 62; 1997, c. 24, s. 20.
(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.
Where no grant registered
(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;
(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.
1997, c. 24, s. 20.
Liability for infringement
35. (1) Where a person infringes copyright, the person is liable to pay such damages to the owner of the copyright as the owner has suffered due to the infringement and, in addition to those damages, such part of the profits that the infringer has made from the infringement and that were not taken into account in calculating the damages as the court considers just. (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.
R.S., 1985, c. C-42, s. 35; 1997, c. 24, s. 20.
Protection of separate rights
36. (1) Subject to this section, the owner of any copyright, or any person or persons deriving any right, title or interest by assignment or grant in writing from the owner, may individually for himself or herself, as a party to the proceedings in his or her own name, protect and enforce any right that he or she holds, and, to the extent of that right, title and interest, is entitled to the remedies provided by this Act.
Where copyright owner to be made party
(2) Where proceedings referred to in subsection (1) are taken by a person other than the copyright owner, the copyright owner must be made a party to those proceedings, except
(a) in respect of proceedings taken under section 44.1, 44.2 or 44.4;
(b) in respect of interlocutory proceedings unless the court is of the opinion that the interests of justice require the copyright owner to be a party; and
(c) in any other case, if the court is of the opinion that the interests of justice do not require the copyright owner to be a party.
Owner’s liability for costs
(3) A copyright owner who is made a party to proceedings pursuant to subsection (2) is not liable for any costs unless the copyright owner takes part in the proceedings.
Apportionment of damages, profits
(4) Where a copyright owner is made a party to proceedings pursuant to subsection (2), the court, in awarding damages or profits, shall, subject to any agreement between the person who took the proceedings and the copyright owner, apportion the damages or profits referred to in subsection 35(1) between them as the court considers appropriate.
R.S., 1985, c. C-42, s. 36; 1994, c. 47, s. 63; 1997, c. 24, s. 20.
Concurrent jurisdiction of Federal Court
37. The Federal Court has concurrent jurisdiction with provincial courts to hear and determine all proceedings, other than the prosecution of offences under section 42 and 43, for the enforcement of a provision of this Act or of the civil remedies provided by this Act.
R.S., 1985, c. C-42, s. 37; 1997, c. 24, s. 20.
(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.
(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.
Notice to interested persons
(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.
(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.
Limitation
(5) Nothing in this Act entitles the copyright owner to damages in respect of the possession or conversion of the infringing copies or plates.
R.S., 1985, c. C-42, s. 38; 1997, c. 24, s. 20.
Statutory damages
38.1 (1) Subject to this section, a copyright owner may elect, at any time before final judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages for all infringements involved in the proceedings, with respect to any one work or other subject-matter, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $500 or more than $20,000 as the court considers just.
Where defendant unaware of infringement
(2) Where a copyright owner has made an election under subsection (1) and the defendant satisfies the court that the defendant was not aware and had no reasonable grounds to believe that the defendant had infringed copyright, the court may reduce the amount of the award to less than $500, but not less than $200.
(a) there is more than one work or other subject-matter in a single medium, and
(b) the awarding of even the minimum amount referred to in subsection (1) or (2) would result in a total award that, in the court’s opinion, is grossly out of proportion to the infringement,
the court may award, with respect to each work or other subject-matter, such lower amount than $500 or $200, as the case may be, as the court considers just.
Collective societies
(4) Where the defendant has not paid applicable royalties, a collective society referred to in section 67 may only make an election under this section to recover, in lieu of any other remedy of a monetary nature provided by this Act, an award of statutory damages in a sum of not less than three and not more than ten times the amount of the applicable royalties, as the court considers just.
Factors to consider
(5) In exercising its discretion under subsections (1) to (4), the court shall consider all relevant factors, including
(a) the good faith or bad faith of the defendant;
(b) the conduct of the parties before and during the proceedings; and
(c) the need to deter other infringements of the copyright in question.
No award
(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; or
(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.
Maximum amount that may be recovered
38.2 (1) An owner of copyright in a work who has not authorized a collective society to authorize its reprographic reproduction may recover, in proceedings against an educational institution, library, archive or museum that has reproduced the work, a maximum amount equal to the amount of royalties that would have been payable to the society in respect of the reprographic reproduction, if it were authorized, either (a) under any agreement entered into with the collective society; or
(b) under a tariff certified by the Board pursuant to section 70.15.
Agreements with more than one collective society
(2) Where agreements respecting reprographic reproduction have been signed with more than one collective society or where more than one tariff applies or where both agreements and tariffs apply, the maximum amount that the copyright owner may recover is the largest amount of the royalties provided for in any of those agreements or tariffs.
Application
(3) Subsections (1) and (2) apply only where
(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.
1997, c. 24, s. 20.
Injunction only remedy when defendant not aware of copyright
39. (1) Subject to subsection (2), in any proceedings for infringement of copyright, the plaintiff is not entitled to any remedy other than an injunction in respect of the infringement if the defendant proves that, at the date of the infringement, the defendant was not aware and had no reasonable ground for suspecting that copyright subsisted in the work or other subject-matter in question.
Exception where copyright registered
(2) Subsection (1) does not apply if, at the date of the infringement, the copyright was duly registered under this Act.
R.S., 1985, c. C-42, s. 39; 1997, c. 24, s. 20.
Wide injunction
39.1 (1) When granting an injunction in respect of an infringement of copyright in a work or other subject-matter, the court may further enjoin the defendant from infringing the copyright in any other work or subject-matter if (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.
(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.
1997, c. 24, s. 20.
No injunction in case of a building
40. (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.
Certain remedies inapplicable
(2) Sections 38 and 42 do not apply in any case in respect of which subsection (1) applies.
R.S., 1985, c. C-42, s. 40; 1997, c. 24, s. 21.
(a) in the case where the plaintiff knew, or could reasonably have been expected to know, of the infringement at the time it occurred, the proceedings for infringement are commenced within three years after the infringement occurred; or
(b) in the case where the plaintiff did not know, and could not reasonably have been expected to know, of the infringement at the time it occurred, the proceedings for infringement are commenced within three years after the time when the plaintiff first knew, or could reasonably have been expected to know, of the infringement.
Restriction
(2) The court shall apply the limitation period set out in paragraph (1)(a) or (b) only in respect of a party who pleads a limitation period.
R.S., 1985, c. C-42, s. 41; R.S., 1985, c. 10 (4th Supp.), s. 9; 1997, c. 24, s. 22.
(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, or
(e) imports for sale or rental into Canada any infringing copy of a work or other subject-matter in which copyright subsists
is guilty of an offence and liable
(f) on summary conviction, to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding six months or to both, or
(g) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.
(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
is guilty of an offence and liable
(c) on summary conviction, to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding six months or to both, or
(d) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.
Power of court to deal with copies or plates
(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.
Limitation period
(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.
Parallel importation of books
(5) No person may be prosecuted under this section for importing a book or dealing with an imported book in the manner described in section 27.1.
R.S., 1985, c. C-42, s. 42; R.S., 1985, c. 10 (4th Supp.), s. 10; 1997, c. 24, s. 24.
Infringement in case of dramatic, operatic or musical work
43. (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.
Change or suppression of title or author’s name
(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.
R.S., c. C-30, s. 26.
43.1 [Repealed, 1997, c. 24, s. 25]
Importation of certain copyright works prohibited
44. Copies made out of 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 so 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, and section 136 of that Act applies accordingly.
R.S., 1985, c. C-42, s. 44; R.S., 1985, c. 41 (3rd Supp.), s. 116; 1997, c. 36, s. 205; 1999, c. 17, s. 119; 2005, c. 38, s. 139.
Power of court
(2) A court may make an order described in subsection (3) where 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 yet been released;
(i) copies of the work were made without the consent of the person who then owned the copyright in the country where the copies were made, or
(ii) the copies were 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.
Who may apply
(2.1) A court may make an order described in subsection (3) on application by the owner or exclusive licensee of copyright in a work in Canada.
(a) directing 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 work, and
(ii) to notify the applicant and the importer, forthwith after detaining the work, of the detention and the reasons therefor; and
(b) providing for such other matters as the court considers appropriate.
How application made
(4) An application for an order made under subsection (2) 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.
Court may require security
(5) Before making an order under subsection (2), 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 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.
Application for directions
(6) The Minister may apply to the court for directions in implementing an order made under subsection (2).
Minister may allow inspection
(7) The Minister may give the applicant or the importer an opportunity to inspect the detained work for the purpose of substantiating or refuting, as the case may be, the applicant’s claim.
Where applicant fails to commence an action
(8) Unless an order made under subsection (2) 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, two weeks after the applicant has been notified under subparagraph (3)(a)(ii), the applicant has not notified the Minister that the applicant has commenced a proceeding for a final determination by the court of the issues referred to in paragraphs (2)(b) and (c).
Where court finds in plaintiff’s favour
(9) Where, in a proceeding commenced under this section, the court finds that the circumstances referred to in paragraphs (2)(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.
Other remedies not affected
(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.
1993, c. 44, s. 66; 1997, c. 24, s. 27; 2005, c. 38, ss. 142, 145.
Importation of books
44.2 (1) A court may, subject to this section, make an order described in subsection 44.1(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.
Who may apply
(2) A court may make an order described in subsection 44.1(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.
Limitation
(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.
Application of certain provisions
(4) Subsections 44.1(3) to (10) apply, with such modifications as the circumstances require, in respect of an order made under subsection (1).
1994, c. 47, s. 66; 1997, c. 24, s. 28.
Limitation
44.3 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.
1997, c. 24, s. 28.
Importation of other subject-matter
44.4 Section 44.1 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;
(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.
1997, c. 24, s. 28.
Exceptions
45. (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.
Satisfactory evidence
(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.
R.S., 1985, c. C-42, s. 45; R.S., 1985, c. 41 (3rd Supp.), s. 117; 1993, c. 44, s. 67; 1994, c. 47, s. 67; 1997, c. 24, s. 28.
