Bill C-32

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	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 in cluded 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 condi tions.
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., c. 10 (4th Supp.), s. 16	47. Section 70.4 of the Act and the heading following it are replaced by the following:
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 collec tive 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 jurisdic tion.
	Examination of Agreements
R.S., c. 10 (4th Supp.), s. 16	48. (1) Subsection 70.5(2) of the Act is replaced by the following:
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.
R.S., c. 10 (4th Supp.), s. 16	(2) Subsection 70.5(3) of the French version of the Act is replaced by the following:
Précision	(3) L'article 45 de la Loi sur la concurrence ne s'applique pas aux redevances et aux modalités afférentes objet de toute entente déposée conformément au paragraphe (2).
R.S., c. 10 (4th Supp.), s. 16	49. Subsection 70.6(1) of the French version of the Act is replaced by the following:
Examen et fixation	70.6 (1) Dès que possible, la Commission procède à l'examen de la demande et, après avoir donné au directeur et aux parties la possibilité de faire valoir leurs arguments, elle peut modifier les redevances et les modalités afférentes objet de l'entente, et en fixer de nouvelles; l'article 70.4 s'applique, compte tenu des adaptations nécessaires, à cette fixation.
R.S., c. 10 (4th Supp.), s. 16; 1988, c. 65, s. 65; 1993, c. 15, s. 11; 1994, c. 47, s. 68	50. The heading before section 70.61 and sections 70.61 to 71 of the Act are replaced by the following:
	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
	(a) in both official languages; and
	(b) filed on or before the March 31 immedi ately 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.
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 disabili ties 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
	(a) send to the collective society concerned a copy of the objections so as to permit it to reply; and
	(b) send to the persons who filed the objections a copy of any reply thereto.
Certification	73. (1) On the conclusion of its consider ation of proposed tariffs, the Board shall
	(a) establish
	(i) 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
	(ii) such terms and conditions related to those royalties as the Board considers appropriate;
	(b) determine the portion of the royalties referred to in paragraph (a) that is to be paid to each collective society;
	(c) vary the tariffs accordingly; and
	(d) certify the tariffs as the approved tariffs, whereupon the tariffs become for the pur poses of this Act the approved tariffs.
No discrimina- tion	(2) For greater certainty, the Board, in establishing a manner of determining royal ties under paragraph (1)(a) or in apportioning them under paragraph (1)(b), may not dis criminate 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.
Special case	74. (1) The Board shall, in establishing a manner of determining royalties under para graph 73(1)(a), ensure that there is a preferen tial rate for small retransmission systems.
Regulations	(2) The Governor in Council may make regulations defining ``small retransmission systems'' for the purpose of subsection (1).
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.
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 communi cated 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 subsec tions (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,
	(a) 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
	(b) 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
	(i) paragraph 29.6(2)(a), beginning on the expiration of the year during which no royalties are payable under that para graph,
	(ii) paragraph 29.6(2)(b), beginning on the performance in public,
	(iii) subsection 29.7(2), beginning on the making of the copy,
	(iv) subsection 29.7(3), beginning on the performance in public, or
	(v) paragraph 31(2)(d), beginning on the communication to the public by telecom munication.
	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
	(a) a published work,
	(b) a fixation of a performer's performance,
	(c) a published sound recording, or
	(d) a fixation of a communication signal
	in which copyright subsists, the Board is satis fied that the applicant has made reasonable ef forts 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, com mence an action to recover them in a court of competent jurisdiction.
Regulations	(4) The Copyright Board may make regula tions governing the issuance of licences under subsection (1).
	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 provi sions, determine the amount of the compensa tion 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 subsec tion 32.4(3) or 32.5(3).
Limitation	(2) The Board shall not
	(a) 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
	(b) 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 com pensation is made under subsection (1).
	PART VIII
	PRIVATE COPYING
	Interpretation
Definitions	79. In this Part,
``audio recording medium'' « support audio »	``audio recording medium'' means a record ing medium, regardless of its material form, onto which a sound recording may be repro duced and that is of a kind ordinarily used by individual consumers for that purpose, excluding any prescribed kind of recording medium;
``blank audio recording medium'' « support audio vierge »	``blank audio recording medium'' means
	(a) an audio recording medium onto which no sounds have ever been fixed, and
	(b) any other prescribed audio recording medium;
``collecting body'' « organisme de perception »	``collecting body'' means the collective soci ety, or other society, association or corpora tion, that is designated as the collecting body under subsection 83(8);
``eligible author'' « auteur admissible »	``eligible author'' means an author of a musi cal work, whether created before or after the coming into force of this Part, that is embo died in a sound recording, whether made before or after the coming into force of this Part, if copyright subsists in Canada in that musical work;
``eligible maker'' « producteur admissible »	``eligible maker'' means a maker of a sound recording that embodies a musical work, whether the first fixation of the sound re cording occurred before or after the coming into force of this Part, if
	(a) both the following two conditions are met:
	(i) the maker, at the date of that first fixation, if a corporation, had its headquarters in Canada or, if a natural person, was a Canadian citizen or permanent resident of Canada within the meaning of the Immigration Act, and
	(ii) copyright subsists in Canada in the sound recording, or
	(b) the maker, at the date of that first fixation, if a corporation, had its head quarters in a country referred to in a statement published under section 85 or, if a natural person, was a citizen, subject or permanent resident of such a country;
``eligible performer'' « artiste- interprète admissible »	``eligible performer'' means the performer of a performer's performance of a musical work, whether it took place before or after the coming into force of this Part, if the per former's performance is embodied in a sound recording and
	(a) both the following two conditions are met:
	(i) the performer was, at the date of the first fixation of the sound recording, a Canadian citizen or permanent resi dent of Canada within the meaning of the Immigration Act, and
	(ii) copyright subsists in Canada in the performer's performance, or
	(b) the performer was, at the date of the first fixation of the sound recording, a citizen, subject or permanent resident of a country referred to in a statement published under section 85;
``prescribed'' Version anglaise seulement	``prescribed'' means prescribed by regula tions made under this Part.