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INTELLECTUAL PROPERTY RIGHTS

NATIONAL LEGISLATION - CANADA

Copyright Act - Chapter C-42


PART VII (continued)

PUBLIC PERFORMANCES IN PLACES OTHER THAN THEATRES

69. (1) [Repealed, R.S., 1985, c. 10 (4th Supp.), s. 14]

Radio performances in places other than theatres

(2) In respect of public performances by means of any radio receiving set in any place other than a theatre that is ordinarily and regularly used for entertainments to which an admission charge is made, no royalties shall be collectable from the owner or user of the radio receiving set, but the Board shall, in so far as possible, provide for the collection in advance from radio broadcasting stations of royalties appropriate to the conditions produced by the provisions of this subsection and shall fix the amount of the same.

Expenses to be taken into account

(3) In fixing royalties pursuant to subsection (2), the Board shall take into account all expenses of collection and other outlays, if any, saved or savable by, for or on behalf of the owner of the copyright or performing right concerned or his agents, in consequence of subsection (2).

(4) [Repealed, R.S., 1985, c. 10 (4th Supp.), s. 14]

R.S., 1985, c. C-42, s. 69; R.S., 1985, c. 10 (4th Supp.), s. 14; 1993, c. 44, s. 73; 1997, c. 24, s. 52(F).

70. [Repealed, R.S., 1985, c. 10 (4th Supp.), s. 15]

 

COLLECTIVE ADMINISTRATION IN RELATION
TO RIGHTS UNDER SECTIONS 3, 15, 18 AND 21

Collective Societies

Collective societies

70.1 Sections 70.11 to 70.6 apply in respect of a collective society that operates

(a) a licensing scheme, applicable in relation to a repertoire of works of more than one author, 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 3 in respect of those works;

(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 in respect of those performer's 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 in respect of those sound recordings; or

(c) a licensing scheme, applicable in relation to a repertoire of communication signals of more than one broadcaster, 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 21 in respect of those communication signals.

R.S., 1985, c. 10 (4th Supp.), s. 16; 1997, c. 24, s. 46.

Public information

70.11 A collective society referred to in section 70.1 must answer within a reasonable time all reasonable requests from the public for information about its repertoire of works, performer's performances, sound recordings or communication signals.

1997, c. 24, s. 46.

Tariff or agreement

70.12 A collective society may, for the purpose of setting out by licence the royalties and terms and conditions relating to classes of uses,

  1. file a proposed tariff with the Board; or

  2. enter into agreements with users.

1997, c. 24, s. 46.

Tariffs

Filing of proposed tariffs

70.13 (1) Each collective society referred to in section 70.1 may, on or before the March 31immediately before the date when its last tariff approved pursuant to subsection 70.15(1) expires, file with the Board a proposed tariff, in both official languages, of royalties to be collected by the collective society for issuing licences.

Where no previous tariff

(2) A collective society referred to in subsection (1) in respect of which no tariff has been approved pursuant to subsection 70.15(1) shall file with the Board its proposed tariff, in both official languages, of all royalties to be collected by it for issuing licences, on or before the March 31 immediately before its proposed effective date.

1997, c. 24, s. 46.

Application of certain provisions

70.14 Where a proposed tariff is filed under section 70.13, subsections 67.1(3) and (5) and subsection 68(1) apply, with such modifications as the circumstances require.

1997, c. 24, s. 46.

Certification

70.15 (1) The Board shall certify the tariffs as approved, with such alterations to the royalties and to the terms and conditions related thereto as the Board considers necessary, having regard to any objections to the tariffs.

Application of certain provisions

(2) Where a tariff is approved under subsection (1), subsections 68(4) and 68.2(1) apply, with such modifications as the circumstances require.

1997, c. 24, s. 46.

Distribution, publication of notices

70.16 Independently of any other provision of this Act relating to the distribution or publication of information or documents by the Board, the Board shall notify persons affected by a proposed tariff, by

  1. distributing or publishing a notice, or

  2. directing another person or body to distribute or publish a notice, in such manner and on such terms and conditions as the Board sees fit.

1997, c. 24, s. 46.

Prohibition of enforcement

70.17 Subject to section 70.19, no proceedings may be brought for the infringement of a right referred to in section 3, 15, 18 or 21 against a person who has paid or offered to pay the royalties specified in an approved tariff.

1997, c. 24, s. 46.

Continuation of rights

70.18 Subject to section 70.19, where a collective society files a proposed tariff in accordance with section 70.13,

  1. any person authorized by the collective society to do an act referred to in section 3, 15, 18 or 21, as the case may be, pursuant to the previous tariff may do so, even though the royalties set out therein have ceased to be in effect, and

  2. the collective society may collect the royalties in accordance with the previous tariff,

until the proposed tariff is approved.

1997, c. 24, s. 46.

Where agreement exists

70.19 If there is an agreement mentioned in paragraph 70.12(b), sections 70.17 and 70.18 do not apply in respect of the matters covered by the agreement.

1997, c. 24, s. 46.

Agreement

70.191 An approved tariff does not apply where there is an agreement between a collective society and a person authorized to do an act mentioned in section 3, 15, 18 or 21, as the case may be, if the agreement is in effect during the period covered by the approved tariff.

1997, c. 24, s. 46.

Fixing of Royalties in Individual Cases

Application to fix amount of royalty, etc.

70.2 (1) Where a collective society and any person not otherwise authorized to do an act mentioned in section 3, 15, 18 or 21, as the case may be, in respect of the works, sound recordings or communication signals included in the collective society's repertoire are unable to agree on the royalties to be paid for the right to do the act or on their related terms and conditions, either of them or a representative of either may, after giving notice to the other, apply to the Board to fix the royalties and their related terms and conditions.

Fixing royalties, etc.

(2) The Board may fix the royalties and their related terms and conditions in respect of a licence during such period of not less than one year as the Board may specify and, as soon as practicable after rendering its decision, the Board shall send a copy thereof, together with the reasons therefor, to the collective society and the person concerned or that person's representative.

R.S., 1985, c. 10 (4th Supp.), s. 16; 1997, c. 24, s. 46.

Agreement

70.3 (1) The Board shall not proceed with an application under section 70.2 where a notice is filed with the Board that an agreement touching the matters in issue has been reached.

Idem

(2) An agreement referred to in subsection (1) is effective during the year following the expiration of the previous agreement, if any, or of the last period specified under subsection 70.2(2).

R.S., 1985, c. 10 (4th Supp.), s. 16.

Effect of Board decision

70.4 Where any royalties are fixed for a period pursuant to subsection 70.2(2), the person concerned may, during the period, subject to the related terms and conditions fixed by the Board and to the terms and conditions set out in the scheme and on paying or offering to pay the royalties, do the act with respect to which the royalties and their related terms and conditions are fixed and the collective society may, without prejudice to any other remedies available to it, collect the royalties or, in default of their payment, recover them in a court of competent jurisdiction.

R.S., 1985, c. 10 (4th Supp.), s. 16; 1997, c. 24, s. 47.

Examination of Agreements

Definition of "Director"

70.5 (1) For the purposes of this section and section 70.6, "Director" means the Director of Investigation and Research appointed under the Competition Act.

Filing agreement with the Board

(2) Where a collective society concludes an agreement to grant a licence authorizing a person to do an act mentioned in section 3, 15, 18 or 21, as the case may be, the collective society or the person may file a copy of the agreement with the Board within fifteen days after it is concluded.

Idem

(3) Section 45 of the Competition Act does not apply in respect of any royalties or related terms and conditions arising under an agreement filed in accordance with subsection (2).

Access by Director

(4) The Director may have access to the copy of an agreement filed in accordance with subsection (2).

Request for examination

(5) Where the Director considers that an agreement filed in accordance with subsection (2) is contrary to the public interest, the Director may, after advising the parties concerned, request the Board to examine the agreement.

R.S., 1985, c. 10 (4th Supp.), s. 16; 1997, c. 24, s. 48.

Examination and fixing of royalty

70.6 (1) The Board shall, as soon as practicable, consider a request by the Director to examine an agreement and the Board may, after giving the Director and the parties concerned an opportunity to present their arguments, alter the royalties and any related terms and conditions arising under the agreement, in which case section 70.4 applies with such modifications as the circumstances require.

Idem

(2) As soon as practicable after rendering its decision, the Board shall send a copy thereof, together with the reasons therefor, to the parties concerned and to the Director.

R.S., 1985, c. 10 (4th Supp.), s. 16; 1997, c. 24, s. 49(F).

70.61 to 70.8 [Repealed, 1997, c. 24, s. 50]

 

ROYALTIES IN PARTICULAR CASES

Filing of proposed tariffs

71. (1) Each collective society that carries on the business of collecting royalties referred to in subsection 29.6(2), 29.7(2) or (3) or paragraph 31(2)(d) shall file with the Board a proposed tariff, but no other person may file any such tariff.

Times for filing

(2) A proposed tariff must be

  1. in both official languages; and

  2. filed on or before the March 31 immediately before the date that the approved tariff ceases to be effective.

Where no previous tariff

(3) A collective society in respect of which no proposed tariff has been certified pursuant to paragraph 73(1)(d) shall file its proposed tariff on or before the March 31 immediately before its proposed effective date.

Effective period of tariffs

(4) A proposed tariff must provide that the royalties are to be effective for periods of one or more calendar years.

R.S., 1985, c. C-42, s. 71; 1997, c. 24, s. 50.

Publication of proposed tariffs

72. (1) As soon as practicable after the receipt of a proposed tariff filed pursuant to section 71, the Board shall publish it in the Canada Gazette and shall give notice that, within sixty days after the publication of the tariff, prospective retransmitters, educational institutions, persons with perceptual disabilities or their representatives may file written objections to the tariff with the Board.

Board to consider proposed tariffs and objections

(2) The Board shall, as soon as practicable, consider a proposed tariff and any objections thereto referred to in subsection (1) or raised by the Board, and

  1. send to the collective society concerned a copy of the objections so as to permit it to reply; and

  2. send to the persons who filed the objections a copy of any reply thereto.

1997, c. 24, s. 50.

Certification

73. (1) On the conclusion of its consideration of proposed tariffs, the Board shall

  1. establish

    1. a manner of determining the royalties to be paid by retransmitters, educational institutions and any person making more than one copy or sound recording of a literary, musical or dramatic work in order to accommodate the needs of a person with a perceptual disability, and

    2. such terms and conditions related to those royalties as the Board considers appropriate;

  2. determine the portion of the royalties referred to in paragraph (a) that is to be paid to each collective society;

  3. vary the tariffs accordingly; and

  4. certify the tariffs as the approved tariffs, whereupon the tariffs become for the purposes of this Act the approved tariffs.

No discrimination

(2) For greater certainty, the Board, in establishing a manner of determining royalties under paragraph (1)(a) or in apportioning them under paragraph (1)(b), may not discriminate between owners of copyright on the ground of their nationality or residence.

Publication of approved tariffs

(3) The Board shall publish the approved tariffs in the Canada Gazette as soon as practicable and send a copy of each approved tariff, together with the reasons for the Board's decision, to each collective society that filed a proposed tariff and to any person who filed an objection.

1997, c. 24, s. 50.

Special case

74. (1) The Board shall, in establishing a manner of determining royalties under paragraph 73(1)(a), ensure that there is a preferential rate for small retransmission systems.

Regulations

(2) The Governor in Council may make regulations defining "small retransmission systems" for the purpose of subsection (1).

1997, c. 24, s. 50.

Effect of fixing royalties

75. Without prejudice to any other remedies available to it, a collective society may, for the period specified in its approved tariff, collect the royalties specified in the tariff and, in default of their payment, recover them in a court of competent jurisdiction.

1997, c. 24, s. 50.

Claims by non-members

76. (1) An owner of copyright who does not authorize a collective society to collect, for that person's benefit, royalties referred to in paragraph 31(2)(d) is, if the work is communicated to the public by telecommunication during a period when an approved tariff that is applicable to that kind of work is effective, entitled to be paid those royalties by the collective society that is designated by the Board, of its own motion or on application, subject to the same conditions as those to which a person who has so authorized that collective society is subject.

Royalties that may be recovered

(2) An owner of copyright who does not authorize a collective society to collect, for that person's benefit, royalties referred to in subsection 29.6(2) or 29.7(2) or (3) is, if such royalties are payable during a period when an approved tariff that is applicable to that kind of work or other subject-matter is effective, entitled to be paid those royalties by the collective society that is designated by the Board, of its own motion or on application, subject to the same conditions as those to which a person who has so authorized that collective society is subject.

Exclusion of remedies

(3) The entitlement referred to in subsections (1) and (2) is the only remedy of the owner of the copyright for the payment of royalties for the communication, making of the copy or sound recording or performance in public, as the case may be.

Regulations

(4) The Board may, for the purposes of this section,

  1. require a collective society to file with the Board information relating to payments of royalties collected by it to the persons who have authorized it to collect those royalties; and

  2. by regulation, establish periods of not less than twelve months within which the entitlements referred to in subsections (1) and (2) must be exercised, in the case of royalties referred to in

    1. paragraph 29.6(2)(a), beginning on the expiration of the year during which no royalties are payable under that paragraph,

    2. paragraph 29.6(2)(b), beginning on the performance in public,

    3. subsection 29.7(2), beginning on the making of the copy,

    4. subsection 29.7(3), beginning on the performance in public, or

    5. paragraph 31(2)(d), beginning on the communication to the public by telecommunication.

1997, c. 24, s. 50.

 

OWNERS WHO CANNOT BE LOCATED

Circumstances in which licence may be issued by Board

77. (1) Where, on application to the Board by a person who wishes to obtain a licence to use

  1. a published work,

  2. a fixation of a performer's performance,

  3. a published sound recording, or

  4. a fixation of a communication signal

in which copyright subsists, the Board is satisfied that the applicant has made reasonable efforts to locate the owner of the copyright and that the owner cannot be located, the Board may issue to the applicant a licence to do an act mentioned in section 3, 15, 18 or 21, as the case may be.

Conditions of licence

(2) A licence issued under subsection (1) is non-exclusive and is subject to such terms and conditions as the Board may establish.

Payment to owner

(3) The owner of a copyright may, not later than five years after the expiration of a licence issued pursuant to subsection (1) in respect of the copyright, collect the royalties fixed in the licence or, in default of their payment, commence an action to recover them in a court of competent jurisdiction.

Regulations

(4) The Copyright Board may make regulations governing the issuance of licences under subsection (1).

1997, c. 24, s. 50.

 

COMPENSATION FOR ACTS DONE BEFORE
RECOGNITION OF COPYRIGHT OR MORAL RIGHTS

Board may determine compensation

78. (1) Subject to subsection (2), for the purposes of subsections 32.4(2), 32.5(2) and 33(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) or 32.5(3).

Limitation

(2) The Board shall not

  1. 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

  2. where a court action between the parties for enforcement of a right referred to in subsection 32.4(3) or 32.5(3), as the case may be, has been commenced, continue with an application under subsection (1) until the court action is finally concluded.

Interim orders

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

1997, c. 24, s. 50.

 

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