Bill C-32

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	(a) an educational institution or a person acting under its authority that has com mitted an act referred to in section 29.6 or 29.7 and has not paid any royalties or complied with any terms and conditions fixed under this Act in relation to the commission of the act;
	(b) an educational institution, library, ar chive or museum that is sued in the circumstances referred to in section 38.2; or
	(c) a person who infringes copyright under paragraph 27(2)(e) or section 27.1, where the copy in question was made with the consent of the copyright owner in the country where the copy was made.
Exemplary or punitive damages not affected	(7) An election under subsection (1) does not affect any right that the copyright owner may have to exemplary or punitive damages.
Maximum amount that may be recovered	38.2 (1) An owner of copyright in a work who has not authorized a collective society to authorize its reprographic reproduction may recover, in proceedings against an educational institution, library, archive or museum that has an agreement with the collective society and has reproduced the work, a maximum amount equal to the amount of royalties that would have been payable to the society in respect of the reprographic reproduction, if it were authorized, either
	(a) under the agreement entered into with the collective society; or
	(b) under a tariff certified by the Board pursuant to section 70.15.
Agreements with more than one collective society	(2) Where agreements respecting repro graphic reproduction have been signed with more than one collective society or where more than one tariff applies or where both agreements and tariffs apply, the maximum amount that the copyright owner may recover is the largest amount of the royalties provided for in any of those agreements or tariffs.
Application	(3) Subsections (1) and (2) apply only where
	(a) the collective society is entitled to authorize, or the tariff provides for the payment of royalties in respect of, the reprographic reproduction of that category of work; and
	(b) copying of that general nature and extent is covered by the agreement or tariff.
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 infringe ment 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.
Wide injunction	39.1 (1) When granting an injunction in respect of an infringement of copyright in a work or other subject-matter, the court may further enjoin the defendant from infringing the copyright in any other work or subject- matter if
	(a) the plaintiff is the owner of the copyright or the person to whom an interest in the copyright has been granted by licence; and
	(b) the plaintiff satisfies the court that the defendant will likely infringe the copyright in those other works or subject-matter unless enjoined by the court from doing so.
Application of injunction	(2) An injunction granted under subsection (1) may extend to works or other subject-mat ter
	(a) in respect of which the plaintiff was not, at the time the proceedings were com menced, the owner of the copyright or the person to whom an interest in the copyright has been granted by licence; or
	(b) that did not exist at the time the proceedings were commenced.
	(2) Section 38 of the Copyright Act, as it read immediately before the coming into force of subsection (1) of this section, continues to apply in respect of proceedings commenced but not concluded before the coming into force of subsection (1) of this section.
	*(3) Section 38.1 of the Copyright Act, as enacted by subsection (1) of this section, only applies*
	(a) to proceedings commenced after the date of the coming into force of that subsection; and
	(b) where the infringement to which those proceedings relate occurred after that date.
	*(4) Section 39.1 of the Copyright Act, as enacted by subsection (1) of this section, applies in respect of*
	(a) proceedings commenced but not con cluded before the coming into force of subsection (1) of this section; and
	(b) proceedings commenced after the coming into force of subsection (1) of this section.
	21. Subsection 40(2) of the Act is replaced by the following:
Certain remedies inapplicable	(2) Sections 38 and 42 do not apply in any case in respect of which subsection (1) applies.
R.S., c. 10 (4th Supp.), s. 9	22. (1) Section 41 of the Act is replaced by the following:
Limitation period for civil remedies	41. (1) Subject to subsection (2), a court may not award a remedy in relation to an infringement unless
	(a) 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
	(b) 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 in fringement are commenced within three years after the time when the plaintiff first knew, or could reasonably have been ex pected 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.
	(2) Subsection (1) applies in respect of
	(a) proceedings commenced but not con cluded before this section comes into force; and
	(b) proceedings commenced after this section comes into force.
	23. The heading before section 42 of the Act is replaced by the following:
	CRIMINAL REMEDIES
R.S., c. 10 (4th Supp.), s. 10	24. (1) Paragraphs 42(1)(a) to (e) of the Act are replaced by the following:
	(a) makes for sale or rental an infringing copy of a work or other subject-matter in which copyright subsists,
	(b) 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,
	(c) 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,
	(d) by way of trade exhibits in public an infringing copy of a work or other subject- matter in which copyright subsists, or
	(e) imports for sale or rental into Canada any infringing copy of a work or other subject-matter in which copyright subsists
R.S., c. 10 (4th Supp.), s. 10	(2) Paragraphs 42(2)(a) and (b) of the Act are replaced by the following:
	(a) 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
	(b) 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
	(3) Subsection 42(3) of the Act is replaced by the following:
Power of court to deal with copies or plates	(3) The court before which any proceedings under this section are taken may, on convic tion, 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.
1994, c. 47, s. 64	25. Section 43.1 of the Act is repealed.
1994, c. 47, s. 65	26. The heading before section 44 of the Act is replaced by the following:
	IMPORTATION
1993, c. 44, s. 66	27. (1) The portion of subsection 44.1(1) of the Act before the definition ``court'' is replaced by the following:
Definitions	44.1 (1) In this section and sections 44.2 and 44.3,
1993, c. 44, s. 66	(2) Subsection 44.1(2) of the Act is re placed by the following:
Power of court	(2) A court may make an order described in subsection (3) where the court is satisfied that
	(a) copies of the work are about to be imported into Canada, or have been im ported into Canada but have not yet been released;
	(b) either
	(i) 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
	(ii) the copies were made elsewhere than in a country to which this Act extends; and
	(c) 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.
1993, c. 44, s. .66	(3) Subsection 44.1(4) of the English version of the Act is replaced by the following:
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.
1993, c. 44, s. 66	(4) Subsections 44.1(8) and (9) of the Act are replaced by the following:
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 deter mination 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 circum stances, 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.
R.S., c. 41 (3rd Supp.), s. 117; 1994, c. 47, ss. 66, 67	28. Sections 44.2 and 45 of the Act are replaced by the following:
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
	(a) copies of the book are about to be imported into Canada, or have been im ported into Canada but have not yet been released;
	(b) 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 con sent of the owner in Canada of the copyright in the book; and
	(c) 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
	(a) the owner of the copyright in the book in Canada;
	(b) the exclusive licensee of the copyright in the book in Canada; or
	(c) 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 subsec tions take place in the part of Canada or in respect of the particular sector of the market for which the person is the exclusive distribu tor.
Application of certain provisions	(4) Subsections 44.1(3) to (10) apply, with such modifications as the circumstances re quire, in respect of an order made under subsection (1).
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 distribu tor of that book.
Importation of other subject- matter	44.4 Section 44.1 applies, with such modifi cations as the circumstances require, in re spect of a sound recording, performer's per formance or communication signal, where a fixation or a reproduction of a fixation of it
	(a) is about to be imported into Canada, or has been imported into Canada but has not yet been released;
	(b) either
	(i) was made without the consent of the person who then owned the copyright in the sound recording, performer's perfor mance or communication signal, as the case may be, in the country where the fixation or reproduction was made, or
	(ii) was made elsewhere than in a country to which Part II extends; and
	(c) would infringe the right of the owner of copyright in the sound recording, perform er's performance or communication signal if it was made in Canada by the importer and the importer knows or should have known this.
Exceptions	45. (1) Notwithstanding anything in this Act, it is lawful for a person
	(a) 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;
	(b) 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;

Bill C-32

CRIMINAL REMEDIES

IMPORTATION