PART V

ADMINISTRATION

COPYRIGHT OFFICE

Copyright Office

46. The Copyright Office shall be attached to the Patent Office.

R.S., c. C-30, s. 29.

Powers of Commissioner and Registrar

47. The Commissioner of Patents shall exercise the powers conferred and perform the duties imposed on him by this Act under the direction of the Minister, and, in the absence of the Commissioner of Patents or if the Commissioner is unable to act, the Registrar of Copyrights or other officer temporarily appointed by the Minister may, as Acting Commissioner, exercise those powers and perform those duties under the direction of the Minister.

R.S., c. C-30, s. 30.

Registrar

48. There shall be a Registrar of Copyrights.

R.S., c. C-30, s. 31.

Register of Copyrights, certificates and certified copies

49. The Commissioner of Patents, the Registrar of Copyrights or an officer, clerk or employee of the Copyright Office may sign certificates and certified copies of the Register of Copyrights.

R.S., 1985, c. C-42, s. 49; 1992, c. 1, s. 47; 1993, c. 15, s. 4.

Other duties of Registrar

50. The Registrar of Copyrights shall perform such other duties in connection with the administration of this Act as may be assigned to him by the Commissioner of Patents.

R.S., c. C-30, s. 33.

51. [Repealed, 1992, c. 1, s. 48]

Control of business and officials

52. The Commissioner of Patents shall, subject to the Minister, oversee and direct the officers, clerks and employees of the Copyright Office, have general control of the business thereof and perform such other duties as are assigned to him by the Governor in Council.

R.S., c. C-30, s. 35.

Register to be evidence

53. (1) The Register of Copyrights is evidence of the particulars entered in it, and a copy of an entry in the Register is evidence of the particulars of the entry if it is certified by the Commissioner of Patents, the Registrar of Copyrights or an officer, clerk or employee of the Copyright Office as a true copy.

Owner of copyright

(2) A certificate of registration of copyright is evidence that the copyright subsists and that the person registered is the owner of the copyright.

Assignee

(2.1) A certificate of registration of an assignment of copyright is evidence that the right recorded on the certificate has been assigned and that the assignee registered is the owner of that right.

Licensee

(2.2) A certificate of registration of a licence granting an interest in a copyright is evidence that the interest recorded on the certificate has been granted and that the licensee registered is the holder of that interest.

Admissibility

(3) A certified copy or certificate appearing to have been issued under this section is admissible in all courts without proof of the signature or official character of the person appearing to have signed it.

R.S., 1985, c. C-42, s. 53; 1992, c. 1, s. 49; 1993, c. 15, s. 5; 1997, c. 24, s. 30.

REGISTRATION

Register of Copyrights

54. (1) The Minister shall cause to be kept at the Copyright Office a register to be called the Register of Copyrights in which may be entered

1. the names or titles of works and of other subject-matter in which copyright subsists;

2. the names and addresses of authors, performers, makers of sound recordings, broadcasters, owners of copyright, assignees of copyright, and persons to whom an interest in copyright has been granted by licence; and

3. such other particulars as may be prescribed by regulation.

(2) [Repealed, 1997, c. 24, s. 31]

Single entry sufficient

(3) In the case of an encyclopaedia, newspaper, review, magazine or other periodical work, or work published in a series of books or parts, it is not necessary to make a separate entry for each number or part, but a single entry for the whole work is sufficient.

Indices

(4) There shall also be kept at the Copyright Office such indices of the Register established under this section as may be prescribed by regulation.

Inspection and extracts

(5) The Register and indices established under this section shall at all reasonable times be open to inspection, and any person is entitled to make copies of or take extracts from the Register.

Former registration effective

(6) Any registration made under the Copyright Act, chapter 70 of the Revised Statutes of Canada, 1906, has the same force and effect as if made under this Act.

Subsisting copyright

(7) Any work in which copyright, operative in Canada, subsisted immediately before January 1, 1924 is registrable under this Act.

R.S., 1985, c. C-42, s. 54; 1992, c. 1, s. 50; 1997, c. 24, s. 31.

Copyright in works

55. (1) Application for the registration of a copyright in a work may be made by or on behalf of the author of the work, the owner of the copyright in the work, an assignee of the copyright, or a person to whom an interest in the copyright has been granted by licence.

Application for registration

(2) An application under subsection (1) must be filed with the Copyright Office, be accompanied by the fee prescribed by or determined under the regulations, and contain the following information:

1. the name and address of the owner of the copyright in the work;

2. a declaration that the applicant is the author of the work, the owner of the copyright in the work, an assignee of the copyright, or a person to whom an interest in the copyright has been granted by licence;

3. the category of the work;

4. the title of the work;

5. the name of the author and, if the author is dead, the date of the author's death, if known;

6. in the case of a published work, the date and place of the first publication; and

7. any additional information prescribed by regulation.

R.S., 1985, c. C-42, s. 55; 1997, c. 24, s. 32.

Copyright in subject-matter other than works

56. (1) Application for the registration of a copyright in subject-matter other than a work may be made by or on behalf of the owner of the copyright in the subject-matter, an assignee of the copyright, or a person to whom an interest in the copyright has been granted by licence.

Application for registration

(2) An application under subsection (1) must be filed with the Copyright Office, be accompanied by the fee prescribed by or determined under the regulations, and contain the following information:

1. the name and address of the owner of the copyright in the subject-matter;

2. a declaration that the applicant is the owner of the copyright in the subject-matter, an assignee of the copyright, or a person to whom an interest in the copyright has been granted by licence;

3. whether the subject-matter is a performer's performance, a sound recording or a communication signal;

4. the title, if any, of the subject-matter;

5. the date of

   1. in the case of a performer's performance, its first fixation in a sound recording or, if it is not fixed in a sound recording, its first performance,

   2. in the case of a sound recording, the first fixation, or

   3. in the case of a communication signal, its broadcast; and

6. any additional information prescribed by regulation.

R.S., 1985, c. C-42, s. 56; 1993, c. 15, s. 6; 1997, c. 24, s. 32.

Recovery of damages

56.1 Where a person purports to have the authority to apply for the registration of a copyright under section 55 or 56 on behalf of another person, any damage caused by a fraudulent or erroneous assumption of such authority is recoverable in any court of competent jurisdiction.

1997, c. 24, s. 32.

Registration of assignment or licence

57. (1) The Registrar of Copyrights shall register an assignment of copyright, or a licence granting an interest in a copyright, on being furnished with

1. the original instrument or a certified copy of it, or other evidence satisfactory to the Registrar of the assignment or licence; and

2. the fee prescribed by or determined under the regulations.

(2) [Repealed, 1992, c. 1, s. 51]

When assignment or licence is void

(3) Any assignment of copyright, or any licence granting an interest in a copyright, shall be adjudged void against any subsequent assignee or licensee for valuable consideration without actual notice, unless the prior assignment or licence is registered in the manner prescribed by this Act before the registering of the instrument under which the subsequent assignee or licensee claims.

Rectification of Register by the Court

(4) The Federal Court may, on application of the Registrar of Copyrights or of any interested person, order the rectification of the Register of Copyrights by

1. the making of any entry wrongly omitted to be made in the Register,

2. the expunging of any entry wrongly made in or remaining on the Register, or

3. the correction of any error or defect in the Register,

and any rectification of the Register under this subsection shall be retroactive from such date as the Court may order.

R.S., 1985, c. C-42, s. 57; 1992, c. 1, s. 51; 1993, c. 15, s. 7; 1997, c. 24, s. 33.

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 or a Rome Convention 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.

Execution of instruments

(2) Any assignment of copyright, or any licence granting an interest in a copyright, may be executed, subscribed or acknowledged by the assignor, licensor or mortgagor, in any other foreign country before any notary public, commissioner or other official or the judge of any court of the foreign country, who is authorized to administer oaths or perform notarial acts in that foreign country and whose authority shall be proved by the certificate of a diplomatic or consular officer of Canada performing their functions in that foreign country.

Seals to be evidence

(3) The official seal or seal of the court or the certificate of a diplomatic or consular officer is evidence of the execution of the instrument, and the instrument with the seal or certificate affixed or attached thereto is admissible as evidence in any action or proceeding brought under this Act without further proof.

Other testimony

(4) The provisions of subsections (1) and (2) shall be deemed to be permissive only, and the execution of any assignment of copyright, or any licence granting an interest in a copyright, may in any case be proved in accordance with the applicable rules of evidence.

R.S., 1985, c. C-42, s. 58; 1997, c. 24, s. 34.

FEES

Fees regulations

59. The Governor in Council may make regulations

1. prescribing fees, or the manner of determining fees, to be paid for anything required or authorized to be done in the administration of this Act; and

2. prescribing the time and manner in which the fees must be paid.

R.S., 1985, c. C-42, s. 59; 1993, c. 15, s. 8.

PART VI

MISCELLANEOUS PROVISIONS

SUBSTITUTED RIGHT

Subsistence of substituted right

60. (1) Where any person is immediately before January 1, 1924 entitled to any right in any work that is set out in column I of Schedule I, or to any interest in such a right, he is, as from that date, entitled to the substituted right set out in column II of that Schedule, or to the same interest in the substituted right, and to no other right or interest, and the substituted right shall subsist for the term for which it would have subsisted if this Act had been in force at the date when the work was made, and the work had been one entitled to copyright thereunder.

Where author has assigned the right

(2) Where the author of any work in which any right that is set out in column I of Schedule I subsists on January 1, 1924 has, before that date, assigned the right or granted any interest therein for the whole term of the right, then at the date when, but for the passing of this Act, the right would have expired, the substituted right conferred by this section shall, in the absence of express agreement, pass to the author of the work, and any interest therein created before January 1, 1924 and then subsisting shall determine, but the person who immediately before the date at which the right would have expired was the owner of the right or interest is entitled at his option either

1. on giving such notice as is hereinafter mentioned, to an assignment of the right or the grant of a similar interest therein for the remainder of the term of the right for such consideration as, failing agreement, may be determined by arbitration, or

2. without any assignment or grant, to continue to reproduce or perform the work in like manner as theretofore subject to the payment, if demanded by the author within three years after the date at which the right would have expired, of such royalties to the author as, failing agreement, may be determined by arbitration, or, where the work is incorporated in a collective work and the owner of the right or interest is the proprietor of that collective work, without any payment,

and the notice referred to in paragraph (a) must be given not more than one year or less than six months before the date at which the right would have expired, and must be sent by registered post to the author, or, if he cannot with reasonable diligence be found, advertised in the Canada Gazette.

Definition of "author"

(3) For the purposes of this section, "author" includes the legal representatives of a deceased author.

Works made before this Act in force

(4) Subject to this Act, copyright shall not subsist in any work made before January 1, 1924 otherwise than under and in accordance with the provisions of this section.

R.S., 1985, c. C-42, s. 60; R.S., 1985, c. 10 (4th Supp.), s. 17(F); 1997, c. 24, s. 52(F).

CLERICAL ERRORS

Clerical errors do not invalidate

61. Clerical errors in any instrument of record in the Copyright Office do not invalidate the instrument, but they may be corrected under the authority of the Registrar of Copyrights.

R.S., 1985, c. C-42, s. 61; 1992, c. 1, s. 52; 1993, c. 15, s. 10.

REGULATIONS

Regulations

62. (1) The Governor in Council may make regulations

1. prescribing anything that by this Act is to be prescribed by regulation; and

2. generally for carrying out the purposes and provisions of this Act.

Rights saved

(2) The Governor in Council may make orders for altering, revoking or varying any order in council made under this Act, but any order made under this section does not affect prejudicially any rights or interests acquired or accrued at the date when the order comes into operation, and shall provide for the protection of those rights and interests.

R.S., 1985, c. C-42, s. 62; 1997, c. 24, s. 37.

INDUSTRIAL DESIGNS AND TOPOGRAPHIES

63. [Repealed, 1997, c. 24, s. 38]

Interpretation

64. (1) In this section and section 64.1,

"article" «objet»

"article" means any thing that is made by hand, tool or machine;

"design" «dessin»

"design" means features of shape, configuration, pattern or ornament and any combination of those features that, in a finished article, appeal to and are judged solely by the eye;

"useful article" «objet utilitaire»

"useful article" means an article that has a utilitarian function and includes a model of any such article;

"utilitarian function" «fonction utilitaire»

"utilitarian function", in respect of an article, means a function other than merely serving as a substrate or carrier for artistic or literary matter.

Non-infringement re certain designs

(2) Where copyright subsists in a design applied to a useful article or in an artistic work from which the design is derived and, by or under the authority of any person who owns the copyright in Canada or who owns the copyright elsewhere,

1. the article is reproduced in a quantity of more than fifty, or

2. where the article is a plate, engraving or cast, the article is used for producing more than fifty useful articles,

it shall not thereafter be an infringement of the copyright or the moral rights for anyone

3. to reproduce the design of the article or a design not differing substantially from the design of the article by

   1. making the article, or

   2. making a drawing or other reproduction in any material form of the article, or

4. to do with an article, drawing or reproduction that is made as described in paragraph (c) anything that the owner of the copyright has the sole right to do with the design or artistic work in which the copyright subsists.

Exception

(3) Subsection (2) does not apply in respect of the copyright or the moral rights in an artistic work in so far as the work is used as or for

1. a graphic or photographic representation that is applied to the face of an article;

2. a trade-mark or a representation thereof or a label;

3. material that has a woven or knitted pattern or that is suitable for piece goods or surface coverings or for making wearing apparel;

4. an architectural work that is a building or a model of a building;

5. a representation of a real or fictitious being, event or place that is applied to an article as a feature of shape, configuration, pattern or ornament;

6. articles that are sold as a set, unless more than fifty sets are made; or

7. such other work or article as may be prescribed by regulation.

Idem

(4) Subsections (2) and (3) apply only in respect of designs created after the coming into force of this subsection, and section 64 of this Act and the Industrial Design Act, as they read immediately before the coming into force of this subsection, as well as the rules made under them, continue to apply in respect of designs created before that coming into force.

R.S., 1985, c. C-42, s. 64; R.S., 1985, c. 10 (4th Supp.), s. 11; 1993, c. 44, s. 68; 1997, c. 24, s. 39.

Non-infringement re useful article features

64.1 (1) The following acts do not constitute an infringement of the copyright or moral rights in a work:

1. applying to a useful article features that are dictated solely by a utilitarian function of the article;

2. by reference solely to a useful article, making a drawing or other reproduction in any material form of any features of the article that are dictated solely by a utilitarian function of the article;

3. doing with a useful article having only features described in paragraph (a), or with a drawing or reproduction made as described in paragraph (b), anything that the owner of the copyright has the sole right to do with the work; and

4. using any method or principle of manufacture or construction.

Exception

(2) Nothing in subsection (1) affects

1. the copyright, or

2. the moral rights, if any,

in any sound recording, cinematograph film or other contrivance by means of which a work may be mechanically reproduced or performed.

R.S., 1985, c. 10 (4th Supp.), s. 11; 1997, c. 24, s. 40.

Application of Act to topographies

64.2 (1) This Act does not apply, and shall be deemed never to have applied, to any topography or to any design, however expressed, that is intended to generate all or part of a topography.

Computer programs

(2) For greater certainty, the incorporation of a computer program into an integrated circuit product or the incorporation of a work into such a computer program may constitute an infringement of the copyright or moral rights in a work.

Definitions

(3) In this section, "topography" and "integrated circuit product" have the same meaning as in the Integrated Circuit Topography Act.

1990, c. 37, s. 33.

65. [Repealed, 1993, c. 44, s. 69]

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