| First
publication
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(1.1) The first publication described in
subparagraph (1)(c)(i) or (ii) shall be deemed
to have occurred within Her Majesty's Realms
and Territories or in a treaty country
notwithstanding that it in fact occurred
previously elsewhere, if the interval between
those two publications did not exceed thirty
days or such longer period as may be fixed by
order in council.
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| 1993, c. 15,
s. 2, c. 44,
s. 57(1)
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(2) Subsections 5(2) and (2.1) of the Act
are replaced by the following:
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| Minister may
extend
copyright to
other
countries
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(2) Where the Minister certifies by notice,
published in the Canada Gazette, that any
country that is not a treaty country grants or
has undertaken to grant, either by treaty,
convention, agreement or law, to citizens of
Canada, the benefit of copyright on
substantially the same basis as to its own
citizens or copyright protection substantially
equal to that conferred by this Act, the country
shall, for the purpose of the rights conferred by
this Act, be treated as if it were a country to
which this Act extends, and the Minister may
give a certificate, notwithstanding that the
remedies for enforcing the rights, or the
restrictions on the importation of copies of
works, under the law of such country, differ
from those in this Act.
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| 1993, c. 44,
s. 57(2)
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(3) Subsection 5(7) of the Act is replaced
by the following:
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| Reciprocity
protection
preserved
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(7) For greater certainty, the protection to
which a work is entitled by virtue of a notice
published under subsection (2), or under that
subsection as it read at any time before the
coming into force of this subsection, is not
affected by reason only of the country in
question becoming a treaty country.
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58. The Act is amended by adding the
following after section 14:
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| Performer's
rights
(post-WTO
performances)
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14.01 (1) Where a performer's performance
takes place in a country that is a WTO
Member, on or after the later of the day on
which this section comes into force and the
day on which that country becomes a WTO
Member, the performer has the sole right
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(a) to fix the performer's performance, or
any substantial part thereof, by means of a
record, perforated roll or other contrivance
by means of which sounds may be
mechanically reproduced,
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(i) the fixation described in
paragraph (a), or any substantial part
thereof, and
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(ii) any reproduction of that fixation, or
any substantial part of such reproduction,
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where that fixation was made without the
performer's consent, and
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(c) to communicate the performer's
performance, or any substantial part
thereof, to the public by telecommunication
at the time of the performer's performance,
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and to authorize any such acts.
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| Interpretation
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(2) For the purpose of paragraph (1)(c),
persons who occupy apartments, hotel rooms
or dwelling units situated in the same building
are part of the public and a communication
intended to be received exclusively by such
persons is a communication to the public.
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| Restriction
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(3) For the purpose of paragraph (1)(c), a
person whose only act in respect of the
communication of a performer's performance
to the public consists of providing the means
of telecommunication necessary for another
person to so communicate the performer's
performance does not communicate that
performer's performance to the public.
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| Performer's
rights
(pre-WTO
performances)
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(4) Where a performer's performance took
place in a country before the later of the day
on which this section comes into force and the
day on which that country becomes a WTO
Member, the performer has, commencing on
the later of those two days, the sole right
described in paragraph (1)(b) and the sole
right to authorize any such act.
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| Term of
performer's
rights
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(5) The rights conferred by this section
subsist for the remainder of the calendar year
in which the performer's performance takes
place and a period of fifty years following the
end of that calendar year.
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| Assignment of
right by
performer
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(6) Subsections 13(4) and 14(3) apply in
respect of a performer's right conferred by this
Act, in the same way that they apply in respect
of assignment of copyright and grants of
interests in copyright by licence.
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| Limitation
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(7) No assignment of a performer's right
conferred by this Act, and no grant of an
interest in such a right by licence, affects the
right of the performer
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(a) to prevent the reproduction of
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(i) any fixation of the performer's
performance, or any reproduction of such
a fixation, and
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(ii) any substantial part of such a fixation
or reproduction,
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where the fixation was made without the
performer's consent; and
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(b) to prevent the importation into Canada,
for sale or hire, of any fixation of the
performer's performance, or any
reproduction of such a fixation, that to the
knowledge of the importer was made
without the performer's consent.
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| R.S., c. 10
(4th Supp.),
s. 17(F);
1993, c. 44,
ss. 62, 63
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59. The heading before section 16 and
sections 16 to 26 of the Act are repealed.
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60. The Act is amended by adding the
following after section 28.01:
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| Infringement
of performer's
right
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28.02 (1) A performer's right in a
performer's performance shall be deemed to
be infringed by any person who, without the
consent of the owner of the performer's right,
does anything that, by virtue of section 14.01,
only the performer has the right to do.
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| Acts not
constituting
infringement
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(2) The following acts do not constitute an
infringement of a performer's right in a
performer's performance:
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(a) any fair dealing with the performer's
performance, a fixation thereof or a
reproduction of the fixation, for the
purposes of private study, research,
criticism, review or newspaper summary;
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(b) the making of a temporary fixation of
the performer's performance for the
purpose of doing an act permitted by
paragraph 27(2)(e);
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(c) reproducing a fixation of the
performer's performance for the purpose of
doing an act permitted by paragraph
27(2)(h), (i), (j) or (k); and
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(d) the retransmission of the performer's
performance where, by virtue of subsection
28.01(2), the retransmission is not an
infringement of copyright.
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| Infringement
by personal
action
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(3) A performer's right in a performer's
performance shall be deemed to be infringed
by any person who
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(a) sells or lets for hire, or by way of trade
exposes or offers for sale or hire,
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(b) distributes, either for the purposes of
trade or to such an extent as to affect
prejudicially the owner of the performer's
right,
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(c) by way of trade exhibits in public, or
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(d) imports for sale or hire into Canada,
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any fixation of the performer's performance,
or any reproduction of such a fixation, that to
the knowledge of that person infringes the
performer's right.
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| Certain rights
and interests
protected
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28.03 (1) Notwithstanding subsections
28.02(1) and (3), where a person has, before
the later of the day on which this section
comes into force and the day on which a
country becomes a WTO Member, incurred an
expenditure or liability in connection with, or
in preparation for, the doing of an act that
would have infringed a performer's right
under this Act commencing on the later of
those two days, had that country been a WTO
member, any right or interest of that person
that
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(a) arises from or in connection with the
doing of that act, and
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(b) is subsisting and valuable on the later of
those two days
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is not prejudiced or diminished by reason only
that that country has become a WTO member,
except as provided by an order of the Board
made under subsection 70.8(3).
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| Compensation
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(2) Notwithstanding subsection (1), a
person's right or interest that is protected by
that subsection terminates if and when the
owner of the performer's right pays that
person such compensation as is agreed to
between the parties or, failing agreement, as is
determined by the Board in accordance with
section 70.8.
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| Limitation
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(3) Nothing in subsections (1) and (2)
affects any right of a performer available in
law or equity.
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61. The Act is amended by adding the
following after section 28.2:
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| Certain rights
and interests
protected
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29. (1) Notwithstanding subsections 27(1),
(4) and (5) and sections 28.1 and 28.2, where
a person has, before a country becomes a
treaty country, incurred an expenditure or
liability in connection with, or in preparation
for, the doing of an act that would have
infringed the copyright owner's copyright or
the author's moral rights had that country been
a treaty country, any right or interest of that
person that
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(a) arises from or in connection with the
doing of that act, and
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(b) is subsisting and valuable at the time
when that country becomes a treaty country
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is not prejudiced or diminished by reason only
that that country has become a treaty country,
except as provided by an order of the Board
made under subsection 70.8(3).
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| Compensation
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(2) Notwithstanding subsection (1), a
person's right or interest that is protected by
that subsection terminates, as against the
copyright owner or the author, if and when the
copyright owner or the author, as the case may
be, pays that person such compensation as is
agreed to between the parties or, failing
agreement, as is determined by the Board in
accordance with section 70.8.
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62. Section 34 of the Act is amended by
adding the following after subsection (1):
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| Performers'
rights
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(1.01) In any proceedings for an
infringement of a performer's right, the court
may, subject to subsection (1.02), grant to the
owner of the performer's right all remedies by
way of injunction, damages, accounts or
delivery up and otherwise that are or may be
conferred by law for the infringement of a
right.
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| Limitation
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(1.02) Where a performer has assigned to
any extent a performer's right, or has granted
an interest in a performer's right by licence,
and subsequently institutes proceedings
described in paragraph 14.01(7)(a) or (b), the
court may not grant to the performer, in
relation to the right assigned or interest
granted, any remedy otherwise than by way of
injunction or delivery up.
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| Other parties
may be joined
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(1.03) In any proceedings for an
infringement of a performer's right, the court
may, on application by the performer, an
assignee of the performer's right, a person to
whom an interest in the performer's right has
been granted by licence, or the defendant,
order such other parties to be joined in the
proceedings as the court considers necessary.
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63. Section 36 of the Act is renumbered as
subsection 36(1) and is amended by adding
the following:
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| Protection of
separate rights
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(2) Subsection (1) applies in respect of a
performer and in respect of the owner of a
performer's right conferred by this Act, in the
same way that that subsection applies in
respect of the persons described therein.
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64. The Act is amended by adding the
following after section 43:
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| Offences and
punishment
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43.1 (1) Every person who knowingly
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(a) makes for sale or hire any infringing
fixation, or infringing reproduction thereof,
of a performer's performance in respect of
which a performer's right subsists,
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(b) sells or lets for hire or by way of trade
exposes or offers for sale or hire any
infringing fixation, or infringing
reproduction thereof, of a performer's
performance in respect of which a
performer's right subsists,
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(c) distributes infringing fixations, or
infringing reproductions thereof, of a
performer's performance in respect of
which a performer's right subsists, either
for the purpose of trade or to such an extent
as to affect prejudicially the owner of the
performer's right,
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(d) by way of trade exhibits in public any
infringing fixation, or infringing
reproduction thereof, of a performer's
performance in respect of which a
performer's right subsists, or
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(e) imports for sale or hire into Canada any
infringing fixation, or infringing
reproduction thereof, of a performer's
performance in respect of which a
performer's right subsists
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is guilty of an offence and liable
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(f) on summary conviction, to a fine not
exceeding twenty-five thousand dollars or
to imprisonment for a term not exceeding
six months or to both, or
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(g) on conviction on indictment, to a fine
not exceeding one million dollars or to
imprisonment for a term not exceeding five
years or to both.
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| Making or
possessing
plate -
offence and
punishment
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(2) Every person who knowingly makes or
possesses any plate for the purpose of making
infringing reproductions of a fixation of a
performer's performance in respect of which
a performer's right subsists is guilty of an
offence and liable
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(a) on summary conviction, to a fine not
exceeding twenty-five thousand dollars or
to imprisonment for a term not exceeding
six months or to both; or
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(b) on conviction on indictment, to a fine
not exceeding one million dollars or to
imprisonment for a term not exceeding five
years or to both.
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| Power of
court to deal
with fixations,
reproductions
or plates
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(3) The court before which any proceedings
under this section are taken may, whether the
alleged offender is convicted or not, order that
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(a) all fixations in the possession of the
alleged offender that appear to it to be
infringing fixations,
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(b) all reproductions of the fixation in the
possession of the alleged offender that
appear to it to be infringing reproductions,
and
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(c) all plates in the possession of the alleged
offender that appear to it to be plates for the
purpose of making infringing reproductions
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be destroyed or delivered up to the owner of
the performer's right or otherwise dealt with
as the court may think fit.
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65. The heading before section 44 of the
Act is replaced by the following:
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