C-60
First Session, Thirty-eighth Parliament,
53-54 Elizabeth II, 2004-2005
HOUSE OF COMMONS OF CANADA
BILL C-60
An Act to amend the Copyright Act
first reading, June 20, 2005
THE MINISTER OF CANADIAN HERITAGE
90338
SUMMARY
This enactment amends the Copyright Act to implement the provisions of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, to clarify the liability of network service providers, to facilitate technology-enhanced learning and interlibrary loans, and to update certain other provisions of the Act.
Also available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca
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1st Session, 38th Parliament,
53-54 Elizabeth II, 2004-2005
house of commons of canada
BILL C-60
An Act to amend the Copyright Act
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. C-42
COPYRIGHT ACT
R.S., c. 10 (4th Supp.), s. 1(3); 1994, c. 47, s. 56(3)
1. (1) The definitions “moral rights” and “treaty country” in section 2 of the Copyright Act are replaced by the following:
“moral rights”« droits moraux »
“moral rights” means the rights described in subsections 14.1(1) and 17.1(1);
“treaty country”« pays signataire »
“treaty country” means a Berne Convention country, UCC country, WCT country or WTO member;
(2) Section 2 of the Act is amended by adding the following in alphabetical order:
“rights management information”« information sur le régime des droits »
“rights management information” means information that
(a) is attached to or embodied in a material form of a work, a performer’s performance fixed in a sound recording or a sound recording, or appears in connection with its communication to the public by telecommunication, and
(b) identifies or permits the identification of the work or its author, the performance or its performer, the sound recording or its maker or any of them, or concerns the terms or conditions of its use;
“technological measure”« mesure technique »
“technological measure” means any technology, device or component that, in the ordinary course of its operation, restricts the doing — in respect of a material form of a work, a performer’s performance fixed in a sound recording or a sound recording — of any act that is mentioned in section 3, 15 or 18 or that could constitute an infringement of any applicable moral rights;
“WCT country”« pays partie au traité de l’ODA »
“WCT country” means a country that is a party to the WIPO Copyright Treaty, adopted in Geneva on December 20, 1996;
“WPPT country”« pays partie au traité de l’OIEP »
“WPPT country” means a country that is a party to the WIPO Performances and Phonograms Treaty, adopted in Geneva on December 20, 1996;
1997, c. 24, s. 2
2. Paragraph 2.4(1)(a) of the Act is replaced by the following:
(a) a person who makes a work or other subject-matter available to the public in a way that allows members of the public to access it through telecommunication from a place and at a time individually chosen by them communicates it to the public by telecommunication;
(a.1) 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;
3. Subsection 3(1) of the Act is amended by striking out the word “and” at the end of paragraph (h), by adding the word “and” at the end of paragraph (i) and by adding the following after paragraph (i):
(j) in respect of a tangible, material form of the work the ownership of which has never previously been transferred, to sell it or otherwise transfer ownership of it for the first time,
2001, c. 34, s. 34; 1994, c. 47, s. 57(1); 1997, c. 24, s. 5(2)
4. Subsections 5(1.01) to (1.03) of the Act are replaced by the following:
Protection for older works
(1.01) For the purposes of subsection (1), a country that becomes a Berne Convention country, a WCT country or a WTO Member after the date of the making or publication of a work is deemed to have been a Berne Convention country, a WCT country or a WTO Member, as the case may be, at that date, subject to subsection (1.02) and sections 33 to 33.2.
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, a WCT country or a WTO Member, as the case may be.
Application of subsections (1.01) and (1.02)
(1.03) Subsections (1.01) and (1.02) apply, and are deemed to have applied, regardless of whether the country in question became a Berne Convention country, a WCT country or a WTO Member before or after the coming into force of those subsections.
1997, c. 24, s. 7
5. Section 10 of the Act is repealed.
1997, c. 24, s. 10(1)
6. Subsection 13(2) of the Act is repealed.
1997, c. 24, s. 14
7. The headings before section 15 of the Act are replaced by the following:
PART II
COPYRIGHT IN PERFORMERS’ PERFORMANCES, SOUND RECORDINGS AND COMMUNICATION SIGNALS AND MORAL RIGHTS IN PERFORMERS’ PERFORMANCES
Performers’ Rights
Copyright
8. (1) Section 15 of the Act is amended by adding the following after subsection (1):
Copyright in performer’s performance
(1.1) Subject to subsection (2.1), a performer has a copyright in the performer’s performance, consisting of the sole right to do the following acts in relation to the performer’s performance or any substantial part of it:
(a) if it is not fixed,
(i) to communicate it to the public by telecommunication,
(ii) to perform it in public, if it is communicated to the public by telecommunication otherwise than by communication signal, and
(iii) to fix it in any material form,
(b) if it is fixed in a sound recording, to reproduce that fixation,
(c) to rent out a sound recording of it,
(d) to sell or otherwise transfer ownership for the first time of every fixation of it in a sound recording that is in tangible form, and
(e) to make a sound recording of it available to the public in a way that allows members of the public to access it through telecommunication from a place and at a time individually chosen by them,
and to authorize any such acts.
1997, c. 24, s. 14
(2) Subsection 15(3) of the Act is replaced by the following:
Conditions
(2.1) Subsection (1.1) applies only in the following cases:
(a) if the performer’s performance takes place in Canada;
(b) if the performer’s performance is fixed in
(i) a sound recording whose maker, at the time of the first fixation,
(A) if a natural person, was a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, or
(B) if a corporation, had its headquarters in Canada, or
(ii) a sound recording whose first publication in such a quantity as to satisfy the reasonable demands of the public occurred in Canada;
(c) if the performer’s performance is transmitted at the time of the performer’s per­formance by a communication signal broadcast from Canada by a broadcaster that has its headquarters in Canada;
(d) if the performer’s performance takes place in a WPPT country;
(e) if the performer’s performance is fixed in
(i) a sound recording whose maker, at the time of the first fixation,
(A) if a natural person, was a citizen or permanent resident of a WPPT country, or
(B) if a corporation, had its headquarters in a WPPT country, or
(ii) a sound recording whose first publication in such a quantity as to satisfy the reasonable demands of the public occurred in a WPPT country; or
(f) if the performer’s performance is transmitted at the time of its performance by a communication signal broadcast from a WPPT country by a broadcaster that has its headquarters in that country.
Publication
(3) The first publication of a sound recording is deemed to have occurred in a country referred to in any of the following provisions, despite an earlier publication elsewhere, if the interval between those two publications does not exceed thirty days:
(a) paragraph (2)(b);
(b) paragraph (2.1)(b); and
(c) paragraph (2.1)(e).
9. The Act is amended by adding the following after section 17:
Moral Rights
Moral rights
17.1 (1) In the cases referred to in subsection 15(2.1), a performer of a live aural performer’s performance or one fixed in a sound recording has, subject to subsection 28.2(1), the right to the integrity of the performance, and — in connection with an act mentioned in subsection 15(1.1) or one for which the performer has a right to remuneration under subsection 19(1) — the right, when it is reasonable in the circumstances, to be associated with the performance as its performer by name or under a pseudonym and the right to remain anonymous.
No assignment of moral rights
(2) Moral rights may not be assigned but may be waived in whole or in part.
No waiver by assignment
(3) An assignment of copyright in a per­former’s performance does not by itself constitute a waiver of any moral rights.
Effect of waiver
(4) If a waiver of any moral right is made in favour of an owner or a licensee of copyright, it may be invoked by any person authorized by the owner or licensee to use the performer’s performance, unless there is an indication to the contrary in the waiver.
Application and term
17.2 (1) Subsection 17.1(1) applies only in respect of a performer’s performance that occurs after its coming into force and in respect of which copyright subsists under subsection 15(1.1). The moral rights subsist for the same term as that copyright.
Succession
(2) The moral rights in respect of a per­former’s performance pass, on the death of the performer, to
(a) the person to whom those rights are specifically bequeathed;
(b) if there is no specific bequest of those moral rights and the performer dies testate in respect of the copyright in the performer’s performance, the person to whom that copyright is bequeathed; or
(c) if there is no person described in paragraph (a) or (b), the person entitled to any other property in respect of which the performer dies intestate.
Subsequent succession
(3) Subsection (2) applies, with such modifications as the circumstances require, on the death of any person who holds moral rights.
1997, c. 24, s. 14; 2001, c. 27, s. 237
10. Subsections 18(2) and (3) of the Act are replaced by the following:
Copyright in sound recordings
(1.1) In the cases referred to in subsection (2.1), a sound recording maker’s copyright in the sound recording also includes the sole right to do the following acts in relation to the sound recording or any substantial part of it:
(a) to sell or otherwise transfer ownership for the first time of it or any copy of it that is in tangible form, and
(b) to make it available to the public in a way that allows members of the public to access it through telecommunication from a place and at a time individually chosen by them,
and to authorize any such acts.
Conditions for copyright
(2) Subsection (1) applies only if
(a) the maker of the sound recording was a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, or a citizen or permanent resident of a Berne Convention country, a Rome Convention country, a country that is a WPPT country or a WTO Member or, if a corporation, had its headquarters in one of the foregoing countries
(i) at the date of the first fixation, or
(ii) if that first fixation was extended over a considerable period, during any substantial part of that period; or
(b) the first publication of the sound recording in such a quantity as to satisfy the reasonable demands of the public occurred in any country referred to in paragraph (a).
Conditions for copyright
(2.1) Subsection (1.1) applies only in the following cases:
(a) if the maker of the sound recording was a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if a corporation, had its headquarters in Canada
(i) at the date of the first fixation, or
(ii) if that first fixation was extended over a considerable period, during any substantial part of that period;
(b) if the first publication of the sound recording in such a quantity as to satisfy the reasonable demands of the public occurred in Canada;
(c) if the maker of the sound recording was a citizen or permanent resident of a WPPT country or, if a corporation, had its headquarters in a WPPT country
(i) at the date of the first fixation, or
(ii) if that first fixation was extended over a considerable period, during any substantial part of that period; or
(d) if the first publication of the sound recording in such a quantity as to satisfy the reasonable demands of the public occurred in a WPPT country.
Publication
(3) The first publication of a sound recording is deemed to have occurred in a country referred to in any of the following provisions, despite an earlier publication elsewhere, if the interval between those two publications does not exceed thirty days:
(a) paragraph (2)(a);
(b) paragraph (2.1)(b); and
(c) paragraph (2.1)(d).
1997, c. 24, s. 14
11. Subsection 19(1) of the Act is replaced by the following:
Right to remuneration
19. (1) If a sound recording has been published, the performer and maker are entitled, subject to section 20, to be paid equitable remuneration for its performance in public or its communication to the public by telecommunication, except for any making available referred to in paragraph 15(1.1)(e) or 18(1.1)(b) and any retransmission.
1997, c. 24, s. 14; 2001, c. 27, s. 239(1)
12. (1) The portion of subsection 22(1) of the Act before paragraph (a) is replaced by the following:
Reciprocity
22. (1) If the Minister is of the opinion that a country grants or has undertaken to grant
1997, c. 24, s. 14; 2001, c. 27, s. 239(2)
(2) The portion of subsection 22(2) of the Act before paragraph (a) is replaced by the following:
Reciprocity
(2) If the Minister is of the opinion that a country neither grants nor has undertaken to grant
1997, c. 24, s. 14
13. Subsections 23(1) to (3) of the Act are replaced by the following:
Term of copyright — performer’s performance
23. (1) Subject to this Act, copyright in a performer’s performance subsists until the expiration of fifty years after the end of the calendar year in which the performance occurs. However,
(a) if the performance is fixed in a sound recording before the copyright expires, the copyright continues until the expiration of fifty years after the end of the calendar year in which the first fixation of the performance in a sound recording occurs; and
(b) if a sound recording in which the performance is fixed is published before the copyright expires, the copyright continues until the expiration of fifty years after the end of the calendar year in which the first publication of the sound recording occurs.
Term of copyright — sound recording
(1.1) Subject to this Act, copyright in a sound recording subsists until the expiration of fifty years after the end of the calendar year in which the first fixation of the sound recording occurs. However, if the sound recording is published before the copyright expires, the copyright continues until the expiration of fifty years after the end of the calendar year in which the first publication of the sound recording occurs.
Term of copyright — communications signals
(1.2) Subject to this Act, copyright in a communication signal subsists until the expiration of fifty years after the end of the calendar year in which the communication signal was broadcast.
Term of right to remuneration
(2) The rights to remuneration conferred on performers and makers by section 19 have the same terms, respectively, as those provided by subsections (1) and (1.1).
Application of subsections (1) to (2)
(3) Subsections (1) to (2) apply without regard to when the fixation, performance or broadcast occurred.
1997, c. 24, s. 15
14. The heading “INFRINGEMENT OF COPYRIGHT AND MORAL RIGHTS AND EXCEPTIONS TO INFRINGEMENT” before section 27 of the Act is replaced by the following:
INFRINGEMENT OF COPYRIGHT AND OTHER RIGHTS, AND EXCEPTIONS
15. Section 27 of the Act is amended by adding the following after subsection (2):
Secondary infringement related to private-use copy
(2.1) It is an infringement of copyright in a work, a performer’s performance or a sound recording for a person knowingly to do any of the following acts with respect to a reproduction of the work, performance or sound recording that the person knows or ought to know was made as a copy for private use under subsection 80(1):
(a) to sell it or rent it out or, by way of trade, expose or offer it for sale or rental;
(b) to distribute it, whether or not for the purpose of trade;
(c) to communicate it by telecommunication to the public or to one or more persons in particular; or
(d) to perform it, or cause it to be performed, in public.
Secondary infringement related to lesson
(2.2) It is an infringement of copyright for any person to do any of the following acts with respect to anything that the person knows or ought to know is a lesson, as defined in subsection 30.01(1), or a fixation of one:
(a) to sell it or to rent it out;
(b) to distribute it to such an extent as to prejudicially affect the owner of copyright in the work or other subject-matter that is included in the lesson;
(c) by way of trade, to distribute it, expose or offer it for sale or rental or exhibit it in public;
(d) to possess it for the purpose of doing anything referred to in any of paragraphs (a) to (c);
(e) to circumvent any measure taken in conformity with paragraph 30.01(4)(d); or
(f) to communicate it by telecommunication to any person other than a person referred to in paragraph 30.01(2)(a).
R.S., c. 10 (4th Supp.), s. 6
16. Section 28.1 of the Act is replaced by the following:
Infringement generally
28.1 Any act or omission that is contrary to any of the moral rights of the author of a work or of the performer of a performer’s per­formance is, in the absence of the author’s or performer’s consent, an infringement of those rights.
R.S., c. 10 (4th Supp.), s. 6
17. The portion of subsection 28.2(1) of the Act before paragraph (a) is replaced by the following:
Nature of right of integrity
28.2 (1) The author’s or performer’s right to the integrity of a work or performer’s per­formance is infringed only if the work or performer’s performance is, to the prejudice of its author’s or performer’s honour or reputation,
18. The Act is amended by adding the following after section 30:
Definition of “lesson”
30.01 (1) In this section, “lesson” means any lesson, test or examination in which a work or other subject-matter is copied, reproduced, translated, performed in public or otherwise used on the premises of an educational institution or communicated by telecommunication to the public situated on those premises.
Communication by telecom- munication
(2) Subject to subsections (3) and (4), it is not an infringement of copyright for an educational institution or a person acting under its authority
(a) to communicate a lesson to the public by telecommunication, if that public consists only of its students enrolled in a course of which the lesson forms a part and instructors acting under the authority of the educational institution;
(b) to make a fixation of the lesson for the purposes of an act referred to in paragraph (a); or
(c) to perform any other act that is necessary for any such acts.
Limitation
(3) Subsection (2) does not apply so as to permit any act referred to in any of paragraphs (2)(a) to (c) with respect to a work or other subject-matter whose use in the lesson constitutes an infringement of copyright or for whose use in the lesson the consent of the copyright owner is required.
Conditions
(4) The educational institution or a person acting under its authority
(a) must not communicate the lesson by telecommunication under paragraph (2)(a) after the course of which the lesson forms a part has ended;
(b) must destroy any fixation of the lesson within 30 days after the course of which it forms a part has ended;
(c) must take any measure prescribed under paragraph 62(1)(a) in connection with a communication by telecommunication in digital form;
(d) must take measures that can reasonably be expected to limit the communication by telecommunication of the lesson to persons referred to in paragraph (2)(a) and prevent any use of it by them after the course of which the lesson forms a part has ended as well as any reproduction or communication of it by them; and
(e) must keep, for a period of three years after the making of a fixation under paragraph (2)(b), a record that identifies the lesson and the course of which the lesson forms a part and states the dates of the making of the fixation and of its destruction.
Digital copies of works
30.02 (1) It is not an infringement of copyright
(a) for an educational institution that has entered into an agreement with a collective society under which the educational institution is authorized to make reprographic reproductions of the works in the society’s repertoire for an educational or training purpose to make a reproduction of any of those works in digital form — of the same general nature and extent as is permitted for reprographic reproduction — in order to communicate it by telecommunication to any of its students for an educational or training purpose and to so communicate it if the educational institution
(i) pays to the collective society the same royalty in respect of the digital reproduction as it would for a reprographic reproduction and complies with the licence terms and conditions applicable in relation to a reprographic reproduction to the extent that they are reasonably applicable in respect of a digital reproduction, and
(ii) takes measures that can reasonably be expected to prevent the communication by telecommunication of the digital reproduction to persons other than those referred to in paragraph 30.01(2)(a) and prevent its further reproduction — other than a single printing — or communication as well as any measures prescribed by regulation; or
(b) for a student to whom any such work has been communicated by telecommunication under paragraph (a) to print the work a single time.
Non-application of subsection (1)
(2) Subsection (1) does not apply with respect to a work if the owner of copyright in it expressly refuses to authorize the collective society in question to authorize its reproduction in digital form.
Maximum amount that may be recovered
(3) If an educational institution that has entered into an agreement referred to in subsection (1) does the acts referred to in paragraph (1)(a) with respect to a work but does not have the right to do them under that subsection — either because the work is not in the repertoire referred to in subsection (1) or because it is a work referred to in subsection (2) — the owner of copyright in the work may not recover against the educational institution in respect of those acts anything more than the amount of the royalty that is payable to the society under that agreement in respect of a reprographic reproduction of that general nature and extent of
(a) a work of the same category, in the case of a work that is not in the repertoire; and
(b) that work, in the case of a work referred to in subsection (2).
No damages against student
(4) The owner of copyright in a work may not recover any damages against a student for a single printing of a reproduction in digital form of the work that was communicated to the student by telecommunication if, at the time of the printing, it was reasonable for the student to believe that the reproduction had been communicated to him or her under paragraph (1)(a).
Agreements with more than one collective society
(5) If the educational institution has entered into an agreement referred to in subsection (1) with more than one collective society, the maximum amount that the copyright owner may recover under subsection (3) is the largest royalty provided for in any of those agreements for a reprographic reproduction of that general nature and extent of a work of the same category.
Application
(6) Subsection (3) applies only if an agreement referred to in that subsection provides for the reprographic reproduction of the general nature and extent in question of works of the category in question.
Non-application
(7) Subsections (1) to (6) do not apply in respect of a work if the educational institution can obtain from a collective society a licence authorizing the acts permitted under paragraphs (1)(a) and (b) with respect to a repertoire of works of the society that includes the work in question, and the educational institution has — before the prescribed day last preceding — received a notice from the collective society that complies with subsection (8) informing it that such a licence can be obtained. The first prescribed day is deemed to be the day that is 30 days after the day on which subsection (1) comes into force.
Notice
(8) The notice must be in writing and must identify, in any manner or form required by the regulations, the works in respect of which the collective society administers copyright as it concerns the reproduction in digital form and the communication by telecommunication referred to in subsection (1) and must contain any other related information that the regulations require.
1997, c. 24, s. 18(1)
19. Subsection 30.2(5) of the Act is replaced by the following:
Limitation regarding copies in digital form
(5) Subsections (1) and (2) do not apply with respect to the making of a copy in digital form of printed matter and its provision to a person who has requested the copy through another library, archive or museum unless the library, archive, museum or person providing the copy takes measures that can reasonably be expected to prevent the making of any reproduction of the copy other than a single printing, its communication, or its use for a period of more than seven days.
20. The Act is amended by adding the following after section 31:
Network Services
Network services
31.1 (1) A person who, in providing serv­ices related to the operation of the Internet or other digital network, provides any means for the telecommunication of a work or other subject-matter or a reproduction of it through that network does not, solely by reason of providing those means, infringe copyright in that work or other subject-matter.
Incidental acts
(2) A person referred to in subsection (1) who performs any other acts related to the telecommunication that render it more efficient, including the caching of a reproduction of the work or other subject-matter, does not, by virtue of those acts alone, infringe copyright in the work or other subject-matter.
Conditions for application
(3) Subsection (2) applies only if the person, in respect of the work, subject-matter or reproduction,
(a) does not modify it or any reproduction of it;
(b) ensures that any requirements related to its caching that are established by whoever made it available for telecommunication by means of the Internet or other digital network and that are suitable for automatic implementation are so implemented; and
(c) does not prevent or interfere with the lawful obtention of usage data related to it.
Hosting
(4) A person who, for the purpose of allowing its telecommunication through the Internet or other digital network, provides digital memory in which another person stores a work or other subject-matter, or a reproduction of it, does not, by virtue of that act alone, infringe copyright in the work or other subject-matter.
Condition for application
(5) Subsection (4) does not apply in respect of a work or other subject-matter if the person providing the digital memory has actual knowledge of a decision of a court of competent jurisdiction to the effect that the other person who has stored a work or other subject-matter, or a reproduction of it, infringes copyright by so storing it or by the way in which the thing so stored is used.
21. Subsection 32.2(1) of the Act is amended by striking out the word “or” at the end of paragraph (d), by adding the word “or” at the end of paragraph (e) and by adding the following after paragraph (e):
(f) for an individual to use for private or non-commercial purposes a photograph or portrait that was commissioned by the individual for personal purposes and made for valuable consideration unless the individual and the owner of copyright in the photograph or portrait have agreed otherwise.
22. The Act is amended by adding the following after section 32.5:
Certain rights and interests protected
32.6 (1) Despite sections 27, 28.1 and 28.2, if a person has — before the day on which any of subsections 15(1.1), 17.1(1) and 18(1.1) apply in respect of performers’ performances and sound recordings connected with a country — incurred an expenditure or a liability in connection with, or in preparation for, the doing of an act that would, if done after that day, have infringed a right under that subsection, 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 that day
is not prejudiced or diminished by reason only that the subsection applies in respect of performers’ performances or sound recordings connected with that country, except as provided by an order of the Board made under subsection 78(3).
Compensation
(2) Despite subsection (1), a person’s right or interest that is protected by that subsection terminates, as against the copyright owner or holder of moral rights, as the case may be, if and when that owner or holder pays the person any compensation that is agreed to between the parties or, failing agreement, that is determined by the Board in accordance with section 78.
Limitation
(3) Nothing in subsections (1) and (2) affects any right of a performer available in law or equity.
1997, c. 24, s. 19
23. Subsection 33(1) of the Act is replaced by the following:
Certain rights and interests protected
33. (1) Despite subsections 27(1), (2) and (4) and sections 27.1, 28.1 and 28.2, if a person has, before the later of January 1, 1996 and the day on which a country becomes a treaty country other than a WCT country, incurred an expenditure or a liability in connection with, or in preparation for, the doing of an act that would have infringed copyright in a work or moral rights in respect of a work had that country been such 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 later of those days
is not prejudiced or diminished by reason only that that country has become such a treaty country, except as provided by an order of the Board made under subsection 78(3).
24. The Act is amended by adding the following after section 33:
Certain rights and interests protected
33.1 (1) Despite subsections 27(1), (2) and (4) and sections 27.1, 28.1 and 28.2, if a person has, before the later of the day on which this section comes into force and the day on which a country that is a treaty country but not a WCT country becomes a WCT country, incurred an expenditure or a liability in connection with, or in preparation for, the doing of an act that would have infringed a right under paragraph 3(1)(j), had that country been a WCT 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 that country has become a WCT country, except as provided by an order of the Board made under subsection 78(3).
Compensation
(2) Despite subsection (1), a person’s right or interest that is protected by that subsection terminates, as against the copyright owner if and when the owner pays the person any compensation that is agreed to between the parties or, failing agreement, that is determined by the Board in accordance with section 78.
Certain rights and interests protected
33.2 (1) Despite subsections 27(1), (2) and (4) and sections 27.1, 28.1 and 28.2, if a person has, before the later of the day on which this section comes into force and the day on which a country that is not a treaty country becomes a WCT country, incurred an expenditure or a liability in connection with, or in preparation for, the doing of an act that would have infringed copyright in a work or moral rights in respect of a work, had that country been a WCT 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 that country has become a WCT country, except as provided by an order of the Board made under subsection 78(3).
Compensation
(2) Despite subsection (1), a person’s right or interest that is protected by that subsection terminates, as against the copyright owner if and when the owner pays the person any compensation that is agreed to between the parties or, failing agreement, that is determined by the Board in accordance with section 78.
25. The heading “Civil Remedies” before section 34 of the Act is replaced by the following:
Civil Remedies
General
1997, c. 24, s. 20(1)
26. Subsection 34(2) of the Act is replaced by the following:
Moral rights
(2) In any proceedings for an infringement of moral rights, the court may grant to the holder of those rights all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right.
27. The Act is amended by adding the following after section 34:
Removal or alteration of rights management information
34.01 (1) The owner of copyright in a work, a performer’s performance fixed in a sound recording or a sound recording is, subject to this Act, entitled to all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right against a person who, without the consent of the copyright owner, knowingly removes or alters any rights management information in electronic form that is attached to or embodied in any material form of the work, the performer’s performance or the sound recording or appears in connection with its communication to the public by telecommunication and knows, or ought to know, that the removal or alteration will facilitate or conceal any infringement of the owner’s copyright.
Subsequent acts
(2) The owner of copyright referred to in subsection (1) has the same remedies against a person who, without the owner’s consent, knowingly does any of the following acts with respect to any material form of the work, the performer’s performance or the sound recording and knows or ought to know that the rights management information has been removed or altered in a way that would give rise to a remedy under subsection (1):
(a) sells it or rents it out;
(b) distributes it to such an extent as to prejudicially affect the owner of the copyright;
(c) by way of trade, distributes it, exposes or offers it for sale or rental or exhibits it in public;
(d) imports it into Canada for the purpose of doing anything referred to in any of paragraphs (a) to (c); or
(e) communicates it to the public by telecommunication.
Circumvention, etc.
34.02 (1) An owner of copyright in a work, a performer’s performance fixed in a sound recording or a sound recording and a holder of moral rights in respect of a work or such a performer’s performance are, 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 against a person who, without the consent of the copyright owner or moral rights holder, circumvents, removes or in any way renders ineffective a technological measure protecting any material form of the work, the performer’s performance or the sound recording for the purpose of an act that is an infringement of the copyright in it or the moral rights in respect of it or for the purpose of making a copy referred to in subsection 80(1).
Circumvention, etc., service
(2) An owner of copyright or a holder of moral rights referred to in subsection (1) has the same remedies against a person who offers or provides a service to circumvent, remove or render ineffective a technological measure protecting a material form of the work, the performer’s performance or the sound recording and knows or ought to know that providing the service will result in an infringement of the copyright or moral rights.
Subsequent acts
(3) If a technological measure protecting a material form of a work, a performer’s per­formance or a sound recording referred to in subsection (1) is removed or rendered ineffective in a manner that does not give rise to the remedies under that subsection, the owner of copyright or holder of moral rights nevertheless has those remedies against a person who knows or ought to know that the measure has been removed or rendered ineffective and, without the owner’s or holder’s consent, does any of the following acts with respect to the material form in question:
(a) sells it or rents it out;
(b) distributes it to such an extent as to prejudicially affect the owner of the copyright;
(c) by way of trade, distributes it, exposes or offers it for sale or rental or exhibits it in public; or
(d) imports it into Canada for the purpose of doing anything referred to in any of paragraphs (a) to (c).
1997, c. 24, s. 20(1)
28. The portion of subsection 34.1(1) of the Act before paragraph (a) is replaced by the following:
Presumptions respecting copyright and ownership
34.1 (1) In any civil proceedings taken under this Act in which the defendant puts in issue either the existence of the copyright or the title of the plaintiff thereto,
29. The Act is amended by adding the following after section 40:
Provisions Respecting Providers of Network Services or Information Location Tools
Notice of claimed infringement
40.1 (1) An owner of copyright in a work or other subject-matter may send a notice of claimed infringement to a person who
(a) in providing services related to the operation of the Internet or other digital network, provides the means of telecommunication through which the electronic location to which the claim of infringement relates is connected to that network;
(b) provides digital memory referred to in subsection 31.1(4) that is used for the electronic location to which the claim of infringement relates; or
(c) provides information location tools as defined in subsection 40.3(3).
Form and content of notice
(2) A notice of claimed infringement must be in writing in the form, if any, prescribed by regulation and must
(a) state the claimant’s name and address and any other particulars prescribed by regulation that enable communication with the claimant;
(b) identify the work or other subject-matter to which the claim of infringement relates;
(c) state the claimant’s interest or right with respect to copyright in the work or other subject-matter;
(d) specify the location data for the electronic location to which the claim of infringement relates;
(e) specify the infringement that is claimed;
(f) specify the date and time of the claimed infringement; and
(g) contain any other information that is prescribed by regulation.
Obligations related to notice
40.2 (1) A person described in paragraph 40.1(1)(a) or (b) who receives a notice of claimed infringement that complies with subsection 40.1(2) has an obligation, on being paid any fee that the person has lawfully charged for the performance of that obligation,
(a) without delay to forward the notice electronically to the person to whom the electronic location identified by the location data specified in the notice belongs and to inform the claimant of its forwarding or, if applicable, of the reason why it was not possible to forward it; and
(b) to retain — for a period that begins on receipt of the notice of alleged infringement and continues until the expiration of six months or, if the claimant commences proceedings relating to the alleged infringement and so notifies the person retaining the records before the expiration of those six months, until the expiration of one year after being so notified — records that will allow the identity of the person to whom the electronic location belongs to be determined.
Fees related to notices
(2) The Minister may, by regulation, fix the maximum fee that a person may charge for performing their obligations under subsection (1), but if no maximum is so fixed, the maximum is nil.
Damages related to notices
(3) A claimant’s only remedy against a person who fails to perform their obligations under subsection (1) is statutory damages in an amount the court considers just but not more than
(a) $5,000, in the case of an obligation under paragraph (1)(a); and
(b) $10,000, in the case of an obligation under paragraph (1)(b).
Regulations — change of amounts
(4) The Governor in Council may, by regulation, increase or decrease the maximum amounts for statutory damages set out in paragraphs (3)(a) and (b).
Injunctive relief only — provider of information location tools
40.3 (1) The owner of copyright in a work or other subject-matter is not entitled to any remedy other than an injunction against a provider of information location tools who infringes that copyright by making or caching a reproduction of the work or other subject-matter.
Conditions for application
(2) Subsection (1) applies only if the pro­vider, in respect of the work or other subject-matter,
(a) makes and caches the reproduction automatically and solely for the purpose of providing the information location tools;
(b) does not modify the reproduction;
(c) complies with any conditions relating to the making or caching of reproductions of it that are established by the person who made it available by means of the Internet or other digital network and that are suitable for automatic implementation;
(d) does not prevent or interfere with the lawful obtention of usage data related to it; and
(e) has not received a notice of claimed infringement relating to it that complies with subsection 40.1(2).
Definition of “information location tool”
(3) In this section, “information location tool” means any instrument through which one can locate information that is available by means of the Internet or any other digital network.
Limitation Period
1997, c. 24, s. 34(1)
30. Subsection 58(1) of the Act is replaced by the following:
Execution of instruments
58. (1) Any assignment of copyright, or any licence granting an interest in a copyright, may be executed, subscribed or acknowledged at any place in a treaty country, a Rome Convention country or a WPPT country by the assignor, licensor or mortgagor, before any notary public, commissioner or other official or the judge of any court, who is authorized by law to administer oaths or perform notarial acts in that place, and who also subscribes their signature and affixes thereto or impresses thereon their official seal or the seal of the court of which they are such judge.
1997, c. 24, s. 37(2)
31. Paragraphs 62(1)(a) and (b) of the Act are replaced by the following:
(a) for the purposes of paragraph 30.01(4)(c), prescribing measures, which may vary according to circumstances specified in the regulations;
(b) for the purposes of subparagraph 30.02(1)(a)(ii), prescribing measures, which may vary according to circumstances specified in the regulations;
(c) for the purposes of subsection 30.02(7), prescribing any day of the year, which day may vary according to circumstances specified in the regulations;
(d) for the purposes of subsection 30.02(8), prescribing the manner and form in which works are to be identified and any other information required to be in the notice;
(e) prescribing the form of a notice of claimed infringement referred to in subsection 40.1(2) and prescribing information to be contained in it;
(f) prescribing anything that by this Act is to be prescribed by regulation; and
(g) generally for carrying out the purposes and provisions of this Act.
1997, c. 24, s. 46
32. Paragraphs 70.1(a.1) and (b) of the Act are replaced by the following:
(a.1) a licensing scheme, applicable in relation to a repertoire of performer’s per­formances of more than one performer, pursuant to which the society sets out the classes of uses for which and the royalties and terms and conditions on which it agrees to authorize the doing of an act mentioned in section 15 — other than an act mentioned in paragraph 15(1.1)(e) — in respect of those performers’ performances;
(b) a licensing scheme, applicable in relation to a repertoire of sound recordings of more than one maker, pursuant to which the society sets out the classes of uses for which and the royalties and terms and conditions on which it agrees to authorize the doing of an act mentioned in section 18 — other than an act mentioned in paragraph 18(1.1)(b) — in respect of those sound recordings; or
1997, c. 24, s. 50
33. Subsections 78(1) and (2) of the Act are replaced by the following:
Board may determine compensation
78. (1) Subject to subsection (2), for the purposes of subsections 32.4(2), 32.5(2), 32.6(2), 33(2), 33.1(2) and 33.2(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 the enforcement of a right mentioned in subsection 32.4(3), 32.5(3) or 32.6(3).
Limitation
(2) The Board shall not
(a) proceed with an application under subsection (1) where a notice is filed with the Board that an agreement regarding the matters in issue has been reached; or
(b) where a court action between the parties for enforcement of a right referred to in subsection 32.4(3), 32.5(3) or 32.6(3), as the case may be, has been commenced, continue with an application under subsection (1) until the court action is finally concluded.
TRANSITIONAL PROVISIONS
No revival of copyright in photograph
34. (1) The repeal of section 10 of the Copyright Act by section 5 of this Act does not have the effect of reviving copyright in any photograph in which, on the coming into force of that section 5, copyright had expired.
Cases where corporations were deemed to be authors
(2) In any case in which, immediately before the coming into force of section 5 of this Act, a corporation is deemed, by virtue of subsection 10(2) of the Copyright Act as it read before the coming into force of section 5 of this Act, to be the author of a photograph in which copyright subsists at that time, the copyright in that photograph continues to subsist for the term determined in accord­ance with sections 6 to 12 of the Copyright Act as if its author were the individual who would have been considered the author of the photograph apart from subsection 10(2) of the Copyright Act.
Cases where individuals were deemed to be authors
(3) In any case in which an individual is deemed to be the author of a photograph by virtue of subsection 10(2) of the Copyright Act as it read before the coming into force of section 5 of this Act, the individual continues, after the coming into force of section 5 of this Act, to be the author of that photograph for the purposes of the Copyright Act.
Engraving, photograph or portrait
35. Subsection 13(2) of the Copyright Act, as it read immediately before the coming into force of section 6 of this Act, continues to apply with respect to any engraving, photograph or portrait, the plate or original of which was commissioned before that coming into force.
No revival of copyright in photograph
36. Subsections 23(1) and (1.1) of the Copyright Act, as enacted by section 13 of this Act, do not have the effect of reviving copyright in any performer’s performance or sound recording in which copyright had expired on the coming into force of those subsections.
COMING INTO FORCE
Order in council
37. (1) Subject to subsection (2), the provisions of this Act, and the provisions of the Copyright Act as enacted by this Act, come into force on a day or days to be fixed by order of the Governor in Council.
Section 30.02 of the Copyright Act
(2) Section 30.02 of the Copyright Act, as enacted by section 18 of this Act, comes into force on the later of
(a) the day on which this Act is assented to, and
(b) December 31, 2006.
Published under authority of the Speaker of the House of CommonsAvailable from:Publishing and Depository ServicesPublic Works and Government Services Canada