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INTELLECTUAL PROPERTY RIGHTS

NATIONAL LEGISLATION - CANADA

Copyright Act - Chapter C-42


PART IV

REMEDIES

CIVIL REMEDIES

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.

Idem

(4) Where any question referred to in subsection (3) is at issue, and no grant of the copyright or of an interest in the copyright, either by assignment or licence, has been registered under this Act,

  1. if a name purporting to be that of the author of the work 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 of the work;

  2. if no name is so printed or indicated, or if the name so printed or indicated is not the author's true name or the name by which he is commonly known, and a name purporting to be that of the publisher or proprietor of the work 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 owner of the copyright in the work for the purpose of proceedings in respect of the infringement of copyright therein; and

  3. if, on a cinematograph, a name purporting to be that of the maker of the cinematograph appears in the usual manner, the person so named shall, unless the contrary is proved, be presumed to be the maker of the cinematograph.

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.

Presumptions respecting copyright and ownership

34.1 (1) In any proceedings for infringement of copyright in which the defendant puts in issue either the existence of the copyright or the title of the plaintiff thereto,

  1. 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

  2. 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,

  1. if a name purporting to be that of

    1. the author of the work,

    2. the performer of the performer's performance,

    3. the maker of the sound recording, or

    4. 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;

  2. if

    1. 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

    2. 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

  3. 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.

Proof of profits

(2) In proving profits,

  1. the plaintiff shall be required to prove only receipts or revenues derived from the infringement; and

  2. 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

  1. in respect of proceedings taken under section 44.1, 44.2 or 44.4;

  2. 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

  3. 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.

Recovery of possession of copies, plates

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

  1. 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

  2. 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.

Powers of court

(2) On application by

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

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

  3. 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.

Circumstances court to consider

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

  1. the proportion, importance and value of the infringing copy or plate, as compared to the substrate or carrier embodying it; and

  2. 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.

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.

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.

Limitation period for civil remedies

41. (1) Subject to subsection (2), a court may not award a remedy in relation to an infringement unless

  1. 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

  2. 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.

CRIMINAL REMEDIES

Offences and punishment

42. (1) Every person who knowingly

  1. makes for sale or rental an infringing copy of a work or other subject-matter in which copyright subsists,

  2. 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,

  3. 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,

  4. by way of trade exhibits in public an infringing copy of a work or other subject-matter in which copyright subsists, or

  5. imports for sale or rental into Canada any infringing copy of a work or other subject-matter in which copyright subsists

  6. is guilty of an offence and liable

  7. 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

  8. 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.

Possession and performance offences and punishment

(2) Every person who knowingly

  1. 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

  2. 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

  3. 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

  4. 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

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 Department of National Revenue 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.

Definitions

44.1 (1) In this section and sections 44.2 and 44.3,

"court" « tribunal »

"court" means the Federal Court or the superior court of a province;

"duties" « droits »

"duties" has the same meaning as in the Customs Act;

"Minister" « ministre »

"Minister" means the Minister of National Revenue;

"release" « dédouanement »

"release" has the same meaning as in the Customs Act.

Power of court

(2) A court may make an order described in subsection (3) where the court is satisfied that

  1. copies of the work are about to be imported into Canada, or have been imported into Canada but have not yet been released;

  2. either

    1. 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

    2. the copies were made elsewhere than in a country to which this Act extends; and

  3. 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.

Order of court

(3) The order referred to in subsection (2) is an order

  1. directing the Minister

    1. to take reasonable measures, on the basis of information reasonably required by the Minister and provided by the applicant, to detain the work, and

    2. to notify the applicant and the importer, forthwith after detaining the work, of the detention and the reasons therefor; and

  2. 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,

  1. to cover duties, storage and handling charges, and any other amount that may become chargeable against the work; and

  2. 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.

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

  1. copies of the book are about to be imported into Canada, or have been imported into Canada but have not yet been released;

  2. 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

  3. 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

  1. the owner of the copyright in the book in Canada;

  2. the exclusive licensee of the copyright in the book in Canada; or

  3. 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

  1. is about to be imported into Canada, or has been imported into Canada but has not yet been released;

  2. either

    1. 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

    2. was made elsewhere than in a country to which Part II extends; and

  3. 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

  1. 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;

  2. 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;

  3. 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;

  4. 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

  5. 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.

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