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Bill C-32

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First Reading

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General Provisions

Protection of separate rights

41.23 (1) Subject to this section, the owner of any copyright, or any person or persons deriving any right, title or interest by assignment or grant in writing from the owner, may individually for himself or herself, as a party to the proceedings in his or her own name, protect and enforce any right that he or she holds, and, to the extent of that right, title and interest, is entitled to the remedies provided by this Act.

(2) If proceedings under subsection (1) are taken by a person other than the copyright owner, the copyright owner shall be made a party to those proceedings, except

(a) in the case of proceedings taken under section 44.1, 44.2 or 44.4;

(b) in the case of interlocutory proceedings, unless the court is of the opinion that the interests of justice require the copyright owner to be a party; and

(c) in any other case in which the court is of the opinion that the interests of justice do not require the copyright owner to be a party.

Owner’s liability for costs

(3) A copyright owner who is made a party to proceedings under subsection (2) is not liable for any costs unless the copyright owner takes part in the proceedings.

Apportionment of damages, profits

(4) If a copyright owner is made a party to proceedings under subsection (2), the court, in awarding damages or profits, shall, subject to any agreement between the person who took the proceedings and the copyright owner, apportion the damages or profits referred to in subsection 35(1) between them as the court considers appropriate.

Concurrent jurisdiction of Federal Court

41.24 The Federal Court has concurrent jurisdiction with provincial courts to hear and determine all proceedings, other than the prosecution of offences under sections 42 and 43, for the enforcement of a provision of this Act or of the civil remedies provided by this Act.

Provisions Respecting Providers of Network Services or Information Location Tools

Notice of claimed infringement

41.25 (1) An owner of the copyright in a work or other subject-matter may send a notice of claimed infringement to a person who provides

(a) the means, in the course of providing services related to the operation of the Internet or another digital network, of telecommunication through which the electronic location that is the subject of the claim of infringement is connected to the Internet or another digital network;

(b) for the purpose set out in subsection 31.1(5), the digital memory that is used for the electronic location to which the claim of infringement relates; or

Form and content of notice

(2) A notice of claimed infringement shall be in writing in the form, if any, prescribed by regulation and shall

(a) state the claimant’s name and address and any other particulars prescribed by regulation that enable communication with the claimant;

(b) identify the work or other subject-matter to which the claimed infringement relates;

(d) specify the location data for the electronic location to which the claimed infringement relates;

(e) specify the infringement that is claimed;

(f) specify the date and time of the commission of the claimed infringement; and

(g) contain any other information that may be prescribed by regulation.

Obligations related to notice

41.26 (1) A person described in paragraph 41.25(1)(a) or (b) who receives a notice of claimed infringement that complies with subsection 41.25(2) shall, on being paid any fee that the person has lawfully charged for doing so,

(a) without delay forward the notice elec- tronically to the person to whom the electron- ic location identified by the location data specified in the notice belongs and inform the claimant of its forwarding or, if applicable, of the reason why it was not possible to forward it; and

(b) retain records that will allow the identity of the person to whom the electronic location belongs to be determined, and do so for six months beginning on the day on which the notice of claimed infringement is received or, if the claimant commences proceedings relating to the claimed infringement and so notifies the person before the end of those six months, for one year after the day on which the person receives the notice of claimed infringement.

Fees related to notices

(2) The Minister may, by regulation, fix the maximum fee that a person may charge for performing his or her obligations under subsection (1). If no maximum is fixed by regulation, the person may not charge any amount under that subsection.

Damages related to notices

(3) A claimant’s only remedy against a person who fails to perform his or her obligations under subsection (1) is statutory damages in an amount that the court considers just, but not less than $5,000 and not more than $10,000.

Regulations — change of amounts

(4) The Governor in Council may, by regulation, increase or decrease the minimum or maximum amount of statutory damages set out in subsection (3).

Injunctive relief only — providers of information location tools

41.27 (1) In any proceedings for infringement of copyright, the owner of the copyright in a work or other subject-matter is not entitled to any remedy other than an injunction against a provider of an information location tool that is found to have infringed copyright by making a reproduction of the work or other subject-matter or by communicating that reproduction to the public by telecommunication.

Conditions for application

(2) Subsection (1) applies only if the provid- er, in respect of the work or other subject-matter,

(a) makes and caches, or does any act similar to caching, the reproduction in an automated manner for the purpose of providing the information location tool;

(b) communicates that reproduction to the public by telecommunication for the purpose of providing the information that has been located by the information location tool;

(d) complies with any conditions relating to the making or caching, or doing of any act similar to caching, of reproductions of the work or other subject-matter, or to the communication of the reproductions to the public by telecommunication, that were established by whoever made the work or other subject-matter available through the Internet or another digital network and that lend themselves to automated reading and execution; and

(e) does not interfere with the lawful use of technology to obtain data on the use of the work or other subject-matter.

Limitation

(3) If the provider receives a notice of claimed infringement, relating to a work or other subject-matter, that complies with subsection 41.25(2) after the work or other subject-matter has been removed from the electronic location set out in the notice, then subsection (1) applies, with respect to reproductions made from that electronic location, only to infringements that occurred before the day that is 30 days — or the period that may be prescribed by regulation — after the day on which the provider receives the notice.

Exception

(4) Subsection (1) does not apply to the provision of the information location tool if the provision of that tool constitutes an infringement of copyright under subsection 27(2.3).

Meaning of “information location tool”

(5) In this section, “information location tool” means any tool that makes it possible to locate information that is available through the Internet or another digital network.

48. Section 42 of the Act is amended by adding the following after subsection (3):

Circumvention of technological protection measure

(3.1) Every person, except a person who is acting on behalf of a library, archive or museum or an educational institution, is guilty of an offence who knowingly and for commercial purposes contravenes section 41.1 and is liable

(a) on conviction on indictment, to a fine not exceeding $1,000,000 or to imprisonment for a term not exceeding five years or to both; or

(b) on summary conviction, to a fine not exceeding $25,000 or to imprisonment for a term not exceeding six months or to both.

49. The Act is amended by adding the following after section 43:

Limitation or Prescription Period

Limitation or prescription period for civil remedies

43.1 (1) Subject to subsection (2), a court may award a remedy for any act or omission that has been done contrary to this Act only if

(a) the proceedings for the act or omission giving rise to a remedy are commenced within three years after it occurred, in the case where the plaintiff knew, or could reasonably have been expected to know, of the act or omission at the time it occurred; or

(b) the proceedings for the act or omission giving rise to a remedy are commenced within three years after the time when the plaintiff first knew of it, or could reasonably have been expected to know of it, in the case where the plaintiff did not know, and could not reasonably have been expected to know, of the act or omission at the time it occurred.

Restriction

(2) The court shall apply the limitation or prescription period set out in paragraph (1)(a) or (b) only in respect of a party who pleads a limitation period.

1997, c. 24, s. 34(1)

50. Subsection 58(1) of the Act is replaced by the following:

Execution of instruments

58. (1) Any assignment of a copyright, or any licence granting an interest in a copyright, may be executed, subscribed or acknowledged at any place in a treaty country, a Rome Convention country or a WPPT country by the assignor, licensor or secured or hypothecary debtor, before any notary public, commissioner or other official, or the judge of any court, who is authorized by law to administer oaths or certify documents in that place and who also subscribes their signature and affixes to, or impresses on, the assignment or licence their official seal or the seal of the court of which they are a judge.

1997, c. 24, s. 37(2)

51. Paragraphs 62(1)(a) and (b) of the Act are replaced by the following:

(a) for the purposes of paragraph 30.01(6)(d), respecting measures, which may vary according to circumstances specified in the regulations;

(b) for the purposes of paragraph 30.02(3)(d), respecting measures, which may vary according to circumstances specified in the regulations;

(c) prescribing the form of a notice of claimed infringement referred to in subsection 41.25(2) and prescribing information to be contained in it;

(d) prescribing anything that by this Act is to be prescribed by regulation; and

(e) generally for carrying out the purposes and provisions of this Act.

1997, c. 24, s. 45; 2001, c. 34, s. 35(E)

52. Subsection 67.1(4) of the Act is replaced by the following:

Prohibition of enforcement

(4) If a proposed tariff is not filed with respect to the work, performer’s performance or sound recording in question, no action may be commenced, without the written consent of the Minister, for

(a) the infringement of the rights, referred to in section 3, to perform a work in public or to communicate it to the public by telecommunication;

(b) the infringement of the rights referred to in paragraph 15(1.1)(d) or 18(1.1)(a); or

1997, c. 24, s. 45

53. Subparagraph 68(2)(a)(i) of the Act is replaced by the following:

(i) the tariff applies in respect of perform- er’s performances and sound recordings only in the situations referred to in the provisions of section 20 other than subsections 20(3) and (4),

1997, c. 24, s. 45

54. Subsection 68.2(2) of the Act is replaced by the following:

Proceedings barred if royalties tendered or paid

(2) No proceedings may be brought against a person who has paid or offered to pay the royalties specified in an approved tariff for

(a) the infringement of the right to perform in public or the right to communicate to the public by telecommunication, referred to in section 3;

(b) the infringement of the rights referred to in paragraph 15(1.1)(d) or 18(1.1)(a); or

1997, c. 24, s. 50

55. Subsection 71(1) of the Act is replaced by the following:

Filing of proposed tariffs

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

1997, c. 24, s. 50

56. (1) Subsection 76(2) of the Act is replaced by the following:

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 29.7(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.

1997, c. 24, s. 50

(2) Subparagraphs 76(4)(b)(i) and (ii) of the Act are repealed.

1997, c. 24, s. 50

57. Subsection 78(1) of the Act is replaced by the following:

Board may determine compensation

78. (1) Subject to subsection (2), for the purposes of subsections 32.4(2), 32.5(2), 33(2), 33.1(2) and 33.2(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).

1997, c. 24, s. 50.

58. Section 92 of the Act is replaced by the following:

Review of Act

92. Five years after the day on which this section comes into force and at the end of each subsequent period of five years, a committee of the Senate, of the House of Commons or of both Houses of Parliament is to be designated or established for the purpose of reviewing this Act.

TRANSITIONAL PROVISIONS

No revival of copyright in photograph

59. (1) The repeal of section 10 of the Copyright Act by section 6 does not have the effect of reviving copyright in any photograph in which, on the coming into force of that section 6, copyright had expired.

Cases where corporations were deemed to be authors

(2) In any case in which, immediately before the coming into force of section 6, a corporation is deemed, by virtue of subsection 10(2) of the Copyright Act as it read before the coming into force of that section 6, to be the author of a photograph in which copyright subsists at that time, the copyright in that photograph continues to subsist for the term determined in accordance with sections 6, 6.1, 6.2, 9, 11.1 or 12 of the Copyright Act as if its author were the individual who would have been considered the author of the photograph apart from that subsection 10(2).

Cases where individuals were deemed to be authors

(3) In any case in which an individual is deemed to be the author of a photograph, by virtue of subsection 10(2) of the Copyright Act as it read before the coming into force of section 6, the individual continues, after the coming into force of that section 6, to be the author of that photograph for the purposes of the Copyright Act.

Engraving, photograph or portrait

60. Subsection 13(2) of the Copyright Act, as it read immediately before the coming into force of section 7, continues to apply with respect to any engraving, photograph or portrait the plate or original of which was commissioned before the coming into force of that section 7.

No revival of copyright

61. Subsections 23(1) to (2) of the Copyright Act, as enacted by section 17, do not have the effect of reviving the copyright, or a right to remuneration, in any performer’s performance or sound recording in which the copyright or the right to remuneration had expired on the coming into force of those subsections.

Limitation or prescription period

62. (1) Subsection 43.1(1) of the Copyright Act, as enacted by section 49, applies only to proceedings with respect to an act or omission that occurred after the coming into force of that section.

Former limitation or prescription period continued

(2) Subsection 41(1) of the Copyright Act, as it read immediately before the coming into force of section 47, applies to proceedings with respect to an infringement that occurred before the coming into force of that section.

COMING INTO FORCE

Order in council

63. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.

Published under authority of the Speaker of the House of Commons

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