Copyright Act

Sections 1-71.

SCHEDULE I

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SCHEDULE II

[Repealed, 1993, c.44, s.74.]

SCHEDULE III

(Section 71.)

THE ROME COPYRIGHT CONVENTION, 1928

[Note: Canada is also a party to the Universal Copyright Convention, signed at Geneva on September 6, 1952.]
[R.S., c.C-30, Sch. III.]

RELATED PROVISIONS

R.S., 1985, c.10 (4th Supp.), ss.23 to 27:

Application re moral rights

"23. (1) The rights referred to in section 14.1 of the Copyright Act, as enacted by section 4, subsist in respect of a work even if the work was created before the coming into force of section 4.

Restriction

(2) A remedy referred to in subsection 34(1.1) of the Copyright Act, as enacted by section 8, may only be obtained where the infringement of the moral rights of the author occurs after the coming into force of section 8.

Idem

(3) Notwithstanding subsection (1) and the repeal by section 3 of subsection 14(4) of the Copyright Act, the rights referred to in section 14.1 of that Act, as enacted by section 4, are not enforceable against

(a) a person who, on the coming into force of this section, is the owner of the copyright in, or holds a licence in relation to, a work, or

(b) a person authorized by a person described in paragraph (a) to do an act mentioned in section 3 of that Act,

in respect of any thing done during the period for which the person described in paragraph (a) is the owner or for which the licence is in force, and the rights referred to in subsection 14(4) of that Act continue to be enforceable against a person described in paragraph (a) or (b) during that period as if subsection 14(4) of that Act were not repealed.

Application re computer programs

24. Subsection 1(2), the definition "computer program" in subsection 1(3) and section 5 apply in respect of a computer program that was made prior to the day on which those provisions come into force but where, by virtue only of subsections 1(2) and (3) and this section, copyright subsists in a computer program that was made prior to May 27, 1987, nothing done in respect of the computer program before May 27, 1987 shall be construed to constitute an infringement of the copyright.

Making of records, perforated rolls, etc.

25. It shall be deemed not to be an infringement of copyright in any musical, literary or dramatic work for any person to make within Canada during the six months following the coming into force of section 7 records, perforated rolls or other contrivances by means of which sounds may be reproduced and by means of which the work may be mechanically performed, if the person proves

(a) that before the coming into force of section 7, the person made such contrivances in respect of that work in accordance with section 29 or 30 of the Copyright Act and any regulation made under section 33 of that Act, as they read immediately before the coming into force of section 7; and

(b) that the making would, had it occurred before the coming into force of section 7, have been deemed not to have been an infringement of copyright by section 29 or 30 of the Copyright Act, as it read immediately before the coming into force of section 7.

Infringements before coming into force

26. Subsection 64(1) and section 64.1 of the Copyright Act, as enacted by section 11, apply in respect of any alleged infringement of copyright occurring prior to, on or after the day on which section 11 comes into force.

Continuation in office

27. Notwithstanding any other provision of this Act, the members of the Copyright Appeal Board appointed pursuant to section 68 of the Copyright Act, as it read immediately before the coming into force of section 13, continue in office and may continue to perform their duties and exercise their powers to the extent necessary to consider and deal with any matter before it pursuant to section 69 of that Act before the coming into force of section 14."

1988, c.65, s.149:

First certified statements of royalties

"149. For greater certainty, the royalties in the first statements certified under paragraph 70.63(1)(d) of the Copyright Act become effective on January 1, 1990 regardless of when the statements are so certified."

1993, c.23, ss.6,7:

Transitional: Statements of royalties

6. (1) Notwithstanding section 67 of the Copyright Act, a statement filed with the Copyright Board pursuant to subsection 67(2) or (3) of that Act on or before September 1, 1992

(a) may provide, or

(b) may be amended with leave of the Board, if application therefor is made to the Board within twenty-eight days after the coming into force of this Act, to provide

for the payment of royalties, for the period beginning on the coming into force of this Act and ending at the end of 1993, in respect of the communication of dramatico-musical or musical works to the public by telecommunication, and a statement so filed or amended is effective for that period to the extent that the Board certifies it as approved pursuant to subsection 67.2(1) of the Copyright Act.

No duplication of royalties

(2) Where a statement referred to in subsection (1) is certified as approved, the Board shall not certify as approved any other statement filed by the same applicant, to the extent that it provides for royalties in respect of the same act and for the same period as set out in the statement previously certified as approved.

Where this Act does not apply

7. This Act does not apply in respect of statements filed with the Board pursuant to subsection 67(2) or (3) of the Copyright Act on or before September 1, 1991 that relate to any year before 1993.

1993, c.44, ss.60(2),(3):

Application of amendments to s.10

(2) Subject to subsection 75(2) of this Act, section 10 of the Copyright Act, as enacted by subsection (1) of this section, applies to all photographs, whether made before or after the coming into force of this section.

Application of amendments to s.11

(3) Except as provided by section 75 of this Act,

(a) section 11 of the Copyright Act, as enacted by subsection (1) of this section, applies only in respect of contrivances made after the coming into force of this section; and

(b) section 11 of the Copyright Act, as it read immediately before the coming into force of this section, continues to apply in respect of contrivances made before the coming into force of this section.

1993, c.44, ss.75 to 77:

Application of certain amendments

75. (1) Subject to subsection (2), amendments to the Copyright Act made by this Act relating to the term of copyright apply in respect of all works, whether made before or after the coming into force of this section.

Idem

(2) Where the term of the copyright in a work expires before the coming into force of this section, nothing in this Act shall be construed as extending or reviving that term.

Cinematographs

76. (1) Except as provided by subsection (2) of this section, the Copyright Act, as amended by this Act, applies in respect of all cinematographs, whether made before or after the coming into force of this section, subject to subsection 75(2) of this Act.

Idem

(2) Section 10 of the Copyright Act, as that section read immediately before the coming into force of this section and in so far as it governs who is the author of a photograph, continues to apply in respect of all cinematographs made before the coming into force of this section that were, before the coming into force of this section, protected as photographs.

Application of section 5

77. Nothing in section 5 of the Copyright Act, as amended by this Act, confers copyright on works made before the coming into force of this section that did not qualify for copyright under section 5 of the Copyright Act as it read immediately before the coming into force of this section.

1994, c.47, ss. 56 to 69:

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

56. (1) The definitions "infringing" and "performance" in section 2 of the Copyright Act are replaced by the following:

"infringing"
«contrefaçon»

means

(a) when applied to a copy of a work in which copyright subsists, any copy, including any colourable imitation, made or imported in contravention of this Act, or

(b) when applied to a fixation of a performer's performance in respect of which a performer's right subsists, or to a reproduction of such a fixation, any fixation or reproduction made or imported in contravention of this Act;

"performance"
«représentation», «exécution» ou «audition»

means any acoustic representation of a work or any visual representation of a dramatic work, including a representation made by means of any mechanical instrument, radio receiving set or television receiving set, but this definition does not apply in the expression "performer's performance" or in the definition of that expression;

1993, c.44, s.53(3)

(2) The definition "pays partie à la Convention" in section 2 of the French version of the Act is replaced by the following:

«pays partie à la Convention de Berne»
"Berne Convention country"

Pays partie à la Convention pour la protection des oeuvres littraires et artistiques, conclue Berne le 9 septembre 1886, ou l'une de ses versions rvises, notamment celle de l'Acte de Paris de 1971.

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

"performer's performance"
«prestation»

means

(a) a live performance of a pre-existing artistic work, pre-existing dramatic work or pre-existing musical work, or a live recitation of a pre-existing literary 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 live reading of a pre-existing literary work, whether or not the work's term of copyright protection under this Act has expired, or

(c) a live improvisation of an artistic work, dramatic work, musical work or literary work, whether or not the improvised work is based on a pre-existing work,

but the references to artistic works in paragraphs (a) and (c) shall be read as applicable only in relation to the performer's sole right conferred by paragraph 14.01(1)(c) and the performer's sole right to authorize acts described in paragraph 14.01(1)(c);

"treaty country"
«pays signataire»

means a Berne Convention country, UCC country or WTO Member;

"UCC country"
«pays partie à la Convention universelle»

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;

"WTO Member"
«membre de l'OMC»

means a Member of the World Trade Organization as defined in subsection 2(1) of the World Trade Organization Agreement Implementation Act.

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

«artiste interprète»
(French version only)

Tout artiste interprète ou exécutant.

1993, c.44, s.57(1)

57. (1) Subsections 5(1) and (1.1) of the Act are replaced by the following:

Conditions for subsistence of copyright

5. (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 cinematograph, the author was, at the date of the making of the work,

(i) a British subject,

(ii) a citizen or subject of, or a person ordinarily resident in, a treaty country, or

(iii) a resident within Her Majesty's Realms and Territories;

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

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

(ii) if a natural person, was

(A) a British subject,

(B) a citizen or subject of, or a person ordinarily resident in, a treaty country, or

(C) a resident within Her Majesty's Realms and Territories; or

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

(i) in relation to paragraph 4(1)(a), 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 within Her Majesty's Realms and Territories or in a treaty country, or

(ii) in relation to paragraph 4(1)(b) or (c), the first publication occurred within Her Majesty's Realms and Territories or in a treaty country.

Protection for older works

(1.01) For the purposes of subsection (1), a country that becomes a Berne Convention country or a WTO Member after the date of the making or publication of a work shall, as of becoming a Berne Convention country or WTO Member, as the case may be, be deemed to have been a Berne Convention country or WTO Member at the date of the making or publication of the work, subject to subsection (1.02) and section 29.

Limitation

(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 or WTO Member, as the case may be.

First publication

(1.1) The first publication described in subparagraph (1)(c)(i) or (ii) shall be deemed to have occurred within Her Majesty's Realms and Territories or in a treaty country notwithstanding that it in fact occurred previously elsewhere, if the interval between those two publications did not exceed thirty days or such longer period as may be fixed by order in council.

1993, c.15, s.2, c.44, s.57(1)

(2) Subsections 5(2) and (2.1) of the Act are replaced by the following:

Minister may extend copyright to other countries

(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.

1993, c.44, s.57(2)

(3) Subsection 5(7) of the Act is replaced by the following:

Reciprocity protection preserved

(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.

58. The Act is amended by adding the following after section 14:

PERFORMERS' RIGHTS

Performer's rights (post-WTO performances)

14.01 (1) Where a performer's performance takes place in a country that is a WTO Member, on or after the later of the day on which this section comes into force and the day on which that country becomes a WTO Member, the performer has the sole right

(a) to fix the performer's performance, or any substantial part thereof, by means of a record, perforated roll or other contrivance by means of which sounds may be mechanically reproduced,

(b) to reproduce

(i) the fixation described in paragraph (a), or any substantial part thereof, and

(ii) any reproduction of that fixation, or any substantial part of such reproduction,

where that fixation was made without the performer's consent, and

(c) to communicate the performer's performance, or any substantial part thereof, to the public by telecommunication at the time of the performer's performance,

and to authorize any such acts.

Interpretation

(2) For the purpose of paragraph (1)(c), 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.

Restriction

(3) For the purpose of paragraph (1)(c), a person whose only act in respect of the communication of a performer's performance to the public consists of providing the means of telecommunication necessary for another person to so communicate the performer's performance does not communicate that performer's performance to the public.

Performer's rights (pre-WTO performances)

(4) Where a performer's performance took place in a country before the later of the day on which this section comes into force and the day on which that country becomes a WTO Member, the performer has, commencing on the later of those two days, the sole right described in paragraph (1)(b) and the sole right to authorize any such act.

Term of performer's rights

(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.

Assignment of right by performer

(6) Subsections 13(4) and 14(3) apply in respect of a performer's right conferred by this Act, in the same way that they apply in respect of assignment of copyright and grants of interests in copyright by licence.

Limitation

(7) No assignment of a performer's right conferred by this Act, and no grant of an interest in such a right by licence, affects the right of the performer

(a) to prevent the reproduction of

(i) any fixation of the performer's performance, or any reproduction of such a fixation, and

(ii) any substantial part of such a fixation or reproduction,

where the fixation was made without the performer's consent; and

(b) to prevent the importation into Canada, for sale or hire, of any fixation of the performer's performance, or any reproduction of such a fixation, that to the knowledge of the importer was made without the performer's consent.
[R.S., c.10 (4th Supp.), s.17(F); 1993, c.44, ss.62,63.]

59. The heading before section 16 and sections 16 to 26 of the Act are repealed.

60. The Act is amended by adding the following after section 28.01:

INFRINGEMENT OF PERFORMERS' RIGHTS

Infringement of performer's right

28.02 (1) A performer's right in a performer's performance shall be deemed to be infringed by any person who, without the consent of the owner of the performer's right, does anything that, by virtue of section 14.01, only the performer has the right to do.

Acts not constituting infringement

(2) The following acts do not constitute an infringement of a performer's right in a performer's performance:

(a) any fair dealing with the performer's performance, a fixation thereof or a reproduction of the fixation, for the purposes of private study, research, criticism, review or newspaper summary;

(b) the making of a temporary fixation of the performer's performance for the purpose of doing an act permitted by paragraph 27(2)(e);

(c) reproducing a fixation of the performer's performance for the purpose of doing an act permitted by paragraph 27(2)(h), (i), (j) or (k); and

(d) the retransmission of the performer's performance where, by virtue of subsection 28.01(2), the retransmission is not an infringement of copyright.

Infringement by personal action

(3) A performer's right in a performer's performance shall be deemed to be infringed by any person who

(a) sells or lets for hire, or by way of trade exposes or offers for sale or hire,

(b) distributes, either for the purposes of trade or to such an extent as to affect prejudicially the owner of the performer's right,

(c) by way of trade exhibits in public, or

(d) imports for sale or hire into Canada,

any fixation of the performer's performance, or any reproduction of such a fixation, that to the knowledge of that person infringes the performer's right.

Certain rights and interests protected

28.03 (1) Notwithstanding subsections 28.02(1) and (3), where a person has, before the later of the day on which this section comes into force 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 a performer's right under this Act commencing on the later of those two 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 two 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 70.8(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 performer's right 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 70.8.

Limitation

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

61. The Act is amended by adding the following after section 28.2:

COMPENSATION FOR RESTORATION OF COPYRIGHT OR MORAL RIGHTS

Certain rights and interests protected

29. (1) Notwithstanding subsections 27(1), (4) and (5) and sections 28.1 and 28.2, where a person has, before 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 the copyright owner's copyright or the 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 at the time when that country becomes a treaty country

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 70.8(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 the author, if and when the 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 70.8.

62. Section 34 of the Act is amended by adding the following after subsection (1):

Performers' rights

(1.01) In any proceedings for an infringement of a performer's right, the court may, subject to subsection (1.02), grant to the owner of the performer's right all remedies by way of injunction, damages, accounts or delivery up and otherwise that are or may be conferred by law for the infringement of a right.

Limitation

(1.02) Where a performer has assigned to any extent a performer's right, or has granted an interest in a performer's right by licence, and subsequently institutes proceedings described in paragraph 14.01(7)(a) or (b), the court may not grant to the performer, in relation to the right assigned or interest granted, any remedy otherwise than by way of injunction or delivery up.

Other parties may be joined

(1.03) In any proceedings for an infringement of a performer's right, the court may, on application by the performer, an assignee of the performer's right, a person to whom an interest in the performer's right has been granted by licence, or the defendant, order such other parties to be joined in the proceedings as the court considers necessary.

63. Section 36 of the Act is renumbered as subsection 36(1) and is amended by adding the following:

Protection of separate rights

(2) Subsection (1) applies in respect of a performer and in respect of the owner of a performer's right conferred by this Act, in the same way that that subsection applies in respect of the persons described therein.

64. The Act is amended by adding the following after section 43:

Offences and punishment

43.1 (1) Every person who knowingly

(a) makes for sale or hire any infringing fixation, or infringing reproduction thereof, of a performer's performance in respect of which a performer's right subsists,

(b) sells or lets for hire or by way of trade exposes or offers for sale or hire any infringing fixation, or infringing reproduction thereof, of a performer's performance in respect of which a performer's right subsists,

(c) distributes infringing fixations, or infringing reproductions thereof, of a performer's performance in respect of which a performer's right subsists, either for the purpose of trade or to such an extent as to affect prejudicially the owner of the performer's right,

(d) by way of trade exhibits in public any infringing fixation, or infringing reproduction thereof, of a performer's performance in respect of which a performer's right subsists, or

(e) imports for sale or hire into Canada any infringing fixation, or infringing reproduction thereof, of a performer's performance in respect of which a performer's right 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.

Making or possessing plate - offence and punishment

(2) Every person who knowingly makes or possesses any plate for the purpose of making infringing reproductions of a fixation of a performer's performance in respect of which a performer's right subsists is guilty of an offence and liable

(a) 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

(b) 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 fixations, reproductions or plates

(3) The court before which any proceedings under this section are taken may, whether the alleged offender is convicted or not, order that

(a) all fixations in the possession of the alleged offender that appear to it to be infringing fixations,

(b) all reproductions of the fixation in the possession of the alleged offender that appear to it to be infringing reproductions, and

(c) all plates in the possession of the alleged offender that appear to it to be plates for the purpose of making infringing reproductions

be destroyed or delivered up to the owner of the performer's right or otherwise dealt with as the court may think fit.

65. The heading before section 44 of the Act is replaced by the following:

IMPORTATION OF COPIES, FIXATIONS AND REPRODUCTIONS

66. The Act is amended by adding the following after section 44.1:

Performer's performances

44.2 Section 44.1 applies, with such modifications as the circumstances require, in respect of a performer's performance, where a fixation of the performer's performance, or a reproduction of such a fixation,

(a) is about to be imported into Canada, or has been imported into Canada but has not yet been released;

(b) was made without the consent of the performer; and

(c) to the knowledge of the importer, would have infringed the performer's right if it had been made in Canada by the importer.
[R.S., c.41 (3rd Supp.), s.117.]

67. (1) Subsection 45(1) of the Act is replaced by the following:

No importation where right to reproduce in Canada granted

45. (1) Where the owner of the copyright has by licence or otherwise granted the right to reproduce any book in Canada, it shall not be lawful except as provided in subsections (3) and (4) to import into Canada copies of the book, and the copies shall be deemed to be included in Schedule VII to the Customs Tariff, and that Schedule applies accordingly.

1993, c.44, s.67(1)

(2) Paragraph 45(3)(a) of the Act is replaced by the following:

(a) to import for the person's own use not more than two copies of any work published in a treaty country;

1993, c.44, s.67(2)

(3) Paragraph 45(3)(d) of the Act is replaced by the following:

(d) to import any book lawfully printed in a treaty country and published for circulation among, and sale to, the public within that country.

1993, c.44, s.67(3)

(4) Subsection 45(5) of the Act is replaced by the following:

Application of provisions regarding importation

(5) This section does not apply to any work the author of which is a subject or citizen of a treaty country other than Canada.

68. The Act is amended by adding the following after section 70.7:

COMPENSATION FOR RESTORATION OF COPYRIGHT OR PERFORMER'S RIGHT

Board may determine compensation

70.8 (1) Subject to subsection (2), for the purposes of subsections 28.03(2) and 29(2), the Board may, on application by any of the parties referred to in one of those provisions, determine the amount of the compensation referred to in that provision that the Board considers reasonable, having regard to all the circumstances, including any judgment of a court in an action between the parties for enforcement of a right mentioned in subsection 28.03(3).

Limitation

(2) The Board shall not proceed with an application under subsection (1)

(a) where a notice is filed with the Board that an agreement touching the matters in issue has been reached; or

(b) where a court action between the parties for enforcement of a right mentioned in subsection 28.03(3) has been commenced but not finally concluded.

Interim orders

(3) Where the Board proceeds with an application under subsection (1), it may, for the purpose of avoiding serious prejudice to any party, make an interim order requiring a party to refrain from doing any act described in the order until the determination of compensation is made under subsection (1).

69. The French version of the Act is amended by replacing the expression "pays partie à la Convention" with the expression "pays partie à la Convention de Berne" in the following provisions:

(a) subsection 10(2); and

(b) section 11.