Bill C-32

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Concurrent jurisdiction of Federal Court	37. The Federal Court has concurrent jurisdiction with provincial courts to hear and determine all proceedings, other than the prosecution of offences under section 42 and 43, for the enforcement of a provision of this Act or of the civil remedies provided by this Act.
Recovery of possession of copies, plates	38. (1) Subject to subsection (2), the owner of the copyright in a work or other subject-matter may
	(a) recover possession of all infringing copies of that work or other subject-matter, and of all plates used or intended to be used for the production of infringing copies, and
	(b) take proceedings for seizure of those copies or plates before judgment if, under the law of Canada or of the province in which those proceedings are taken, a person is entitled to take such proceedings,
	as if those copies or plates were the property of the copyright owner.
Powers of court	(2) On application by
	(a) a person from whom the copyright owner has recovered possession of copies or plates referred to in subsection (1),
	(b) a person against whom proceedings for seizure before judgment of copies or plates referred to in subsection (1) have been taken, or
	(c) any other person who has an interest in those copies or plates,
	a court may order that those copies or plates be destroyed, or may make any other order that it considers appropriate in the circumstances.
Notice to interested persons	(3) Before making an order under subsection (2), the court shall direct that notice be given to any person who has an interest in the copies or plates in question, unless the court is of the opinion that the interests of justice do not require such notice to be given.
Circumstan- ces court to consider	(4) In making an order under subsection (2), the court shall have regard to all the circumstances, including
	(a) the proportion, importance and value of the infringing copy or plate, as compared to the substrate or carrier embodying it; and
	(b) the extent to which the infringing copy or plate is severable from, or a distinct part of, the substrate or carrier embodying it.
Limitation	(5) Nothing in this Act entitles the copyright owner to damages in respect of the possession or conversion of the infringing copies or plates.
Statutory damages	38.1 (1) Subject to this section, a copyright owner may elect, at any time before final judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages for all infringements involved in the proceedings, with respect to any one work or other subject-matter, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $500 or more than $20,000 as the court considers just.
Where defendant unaware of infringement	(2) Where a copyright owner has made an election under subsection (1) and the defendant satisfies the court that the defendant was not aware and had no reasonable grounds to believe that the defendant had infringed copyright, the court may reduce the amount of the award to less than $500, but not less than $200.
Special case	(3) Where
	(a) there is more than one work or other subject-matter in a single medium, and
	(b) the awarding of even the minimum amount referred to in subsection (1) or (2) would result in a total award that, in the court's opinion, is grossly out of proportion to the infringement,
	the court may award, with respect to each work or other subject-matter, such lower amount than $500 or $200, as the case may be, as the court considers just.
Collective societies	(4) Where the defendant has not paid applicable royalties, a collective society referred to in section 67 may only make an election under this section to recover, in lieu of any other remedy of a monetary nature provided by this Act, an award of statutory damages in a sum of not less than three and not more than ten times the amount of the applicable royalties, as the court considers just.
Factors to consider	(5) In exercising its discretion under subsections (1) to (4), the court shall consider all relevant factors, including
	(a) the good faith or bad faith of the defendant;
	(b) the conduct of the parties before and during the proceedings; and
	(c) the need to deter other infringements of the copyright in question.
No award	(6) No statutory damages may be awarded against
	(a) an educational institution or a person acting under its authority that has committed 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, archive 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 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 any 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 reprographic 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 infringement 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-matter
	(a) in respect of which the plaintiff was not, at the time the proceedings were commenced, 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 concluded 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 infringement are commenced within three years after the time when the plaintiff first knew, or could reasonably have been expected 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 concluded 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 conviction, 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:

Bill C-32

CRIMINAL REMEDIES