Bill C-11

60-61 ELIZABETH II

——————

CHAPTER 20

An Act to amend the Copyright Act

[Assented to 29th June, 2012]

Whereas the Copyright Act is an important marketplace framework law and cultural policy instrument that, through clear, predictable and fair rules, supports creativity and innovation and affects many sectors of the knowledge economy;

Whereas advancements in and convergence of the information and communications technologies that link communities around the world present opportunities and challenges that are global in scope for the creation and use of copyright works or other subject-matter;

Whereas in the current digital era copyright protection is enhanced when countries adopt coordinated approaches, based on internationally recognized norms;

Whereas those norms are reflected in the World Intellectual Property Organization Copyright Treaty and the World Intellectual Property Organization Performances and Phonograms Treaty, adopted in Geneva in 1996;

Whereas those norms are not wholly reflected in the Copyright Act;

Whereas the exclusive rights in the Copyright Act provide rights holders with recognition, remuneration and the ability to assert their rights, and some limitations on those rights exist to further enhance users’ access to copyright works or other subject-matter;

Whereas the Government of Canada is committed to enhancing the protection of copyright works or other subject-matter, including through the recognition of technological protection measures, in a manner that promotes culture and innovation, competition and investment in the Canadian economy;

And whereas Canada’s ability to participate in a knowledge economy driven by innovation and network connectivity is fostered by encouraging the use of digital technologies for research and education;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the Copyright Modernization Act.

COPYRIGHT ACT

2. (1) The definitions “moral rights” and “treaty country” in section 2 of the Copyright Act are replaced by the following:

“moral rights” means the rights described in subsections 14.1(1) and 17.1(1);

“treaty country” means a Berne Convention country, UCC country, WCT country or WTO Member;

(2) Section 2 of the Act is amended by adding the following in alphabetical order:

“WCT country” means a country that is a party to the WIPO Copyright Treaty, adopted in Geneva on December 20, 1996;

“WPPT country” means a country that is a party to the WIPO Performances and Phonograms Treaty, adopted in Geneva on December 20, 1996;

3. Section 2.4 of the Act is amended by adding the following after subsection (1):

(1.1) For the purposes of this Act, communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public.

4. Subsection 3(1) of the Act is amended by striking out “and” at the end of paragraph (h), by adding “and” at the end of paragraph (i) and by adding the following after paragraph (i):

(j) in the case of a work that is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the copyright owner,

5. Subsections 5(1.01) to (1.03) of the Act are replaced by the following:

(1.01) For the purposes of subsection (1), a country that becomes a Berne Convention country, a WCT country or a WTO Member after the date of the making or publication of a work is deemed to have been a Berne Convention country, a WCT country or a WTO Member, as the case may be, at that date, subject to subsection (1.02) and sections 33 to 33.2.

(1.02) Subsection (1.01) does not confer copyright protection in Canada on a work whose term of copyright protection in the country referred to in that subsection had expired before that country became a Berne Convention country, a WCT country or a WTO Member, as the case may be.

(1.03) Subsections (1.01) and (1.02) apply, and are deemed to have applied, regardless of whether the country in question became a Berne Convention country, a WCT country or a WTO Member before or after the coming into force of those subsections.

6. Section 10 of the Act is repealed.

7. Subsection 13(2) of the Act is repealed.

8. The headings before section 15 of the Act are replaced by the following:

PART II

COPYRIGHT IN PERFORMERS’ PERFORMANCES, SOUND RECORDINGS AND COMMUNICATION SIGNALS AND MORAL RIGHTS IN PERFORMERS’ PERFORMANCES

Performers’ Rights

Copyright

9. (1) Section 15 of the Act is amended by adding the following after subsection (1):

(1.1) Subject to subsections (2.1) and (2.2), a performer’s copyright in the performer’s performance consists of the sole right to do the following acts in relation to the performer’s performance or any substantial part of it and to authorize any of those acts:

(a) if it is not fixed,

(i) to communicate it to the public by telecommunication,

(ii) to perform it in public, if it is communicated to the public by telecommunication otherwise than by communication signal, and

(iii) to fix it in any material form;

(b) if it is fixed in a sound recording, to reproduce that fixation;

(c) to rent out a sound recording of it;

(d) to make a sound recording of it available to the public by telecommunication in a way that allows a member of the public to have access to the sound recording from a place and at a time individually chosen by that member of the public and to communicate the sound recording to the public by telecommunication in that way; and

(e) if it is fixed in a sound recording that is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the owner of the copyright in the performer’s perform- ance.

(2) Section 15 of the Act is amended by adding the following after subsection (2):

(2.1) Subsection (1.1) applies if

(a) the performer’s performance takes place in Canada;

(b) the performer’s performance is fixed in

(i) a sound recording whose maker, at the time of its first fixation,

(A) was a Canadian citizen or permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act, in the case of a natural person, or

(B) had its headquarters in Canada, in the case of a corporation, or

(ii) a sound recording whose first publication in a quantity sufficient to satisfy the reasonable demands of the public occurred in Canada; or

(c) the performer’s performance is transmitted at the time of its performance by a communication signal broadcast from Canada by a broadcaster that has its headquarters in Canada.

(3) Section 15 of the Act is amended by adding the following before subsection (3):

(2.2) Subsection (1.1) also applies if

(a) the performer’s performance takes place in a WPPT country;

(b) the performer’s performance is fixed in

(i) a sound recording whose maker, at the time of its first fixation,

(A) was a citizen or permanent resident of a WPPT country, in the case of a natural person, or

(B) had its headquarters in a WPPT country, in the case of a corporation, or

(ii) a sound recording whose first publication in a quantity sufficient to satisfy the reasonable demands of the public occurred in a WPPT country; or

(c) the performer’s performance is transmitted at the time of its performance by a communication signal broadcast from a WPPT country by a broadcaster that has its headquarters in that country.

(4) Section 15 of the Act is amended by adding the following after subsection (3):

(4) The first publication of a sound recording is deemed to have occurred in a WPPT country, despite an earlier publication elsewhere, if the interval between the publication in that WPPT country and the earlier publication does not exceed 30 days.

10. The Act is amended by adding the following after section 17:

Moral Rights

17.1 (1) In the cases referred to in subsections 15(2.1) and (2.2), a performer of a live aural performance or a performance fixed in a sound recording has, subject to subsection 28.2(1), the right to the integrity of the performance, and — in connection with an act mentioned in subsection 15(1.1) or one for which the performer has a right to remuneration under section 19 — the right, if it is reasonable in the circumstances, to be associated with the performance as its performer by name or under a pseudonym and the right to remain anonymous.

(2) Moral rights may not be assigned but may be waived in whole or in part.

(3) An assignment of copyright in a perform- er’s performance does not by itself constitute a waiver of any moral rights.

(4) If a waiver of any moral right is made in favour of an owner or a licensee of a copyright, it may be invoked by any person authorized by the owner or licensee to use the performer’s performance, unless there is an indication to the contrary in the waiver.

17.2 (1) Subsection 17.1(1) applies only in respect of a performer’s performance that occurs after the coming into force of that subsection. The moral rights subsist for the same term as the copyright in that performer’s performance.

(2) The moral rights in respect of a perform- er’s performance pass, on the performer’s death, to

(a) the person to whom those rights are specifically bequeathed;

(b) if there is not a specific bequest of those moral rights and the performer dies testate in respect of the copyright in the performer’s performance, the person to whom that copyright is bequeathed; or

(c) if there is not a person as described in paragraph (a) or (b), the person entitled to any other property in respect of which the performer dies intestate.

(3) Subsection (2) applies, with any modifications that the circumstances require, on the death of any person who holds moral rights.

11. (1) Section 18 of the Act is amended by adding the following after subsection (1):

(1.1) Subject to subsections (2.1) and (2.2), a sound recording maker’s copyright in the sound recording also includes the sole right to do the following acts in relation to the sound recording or any substantial part of it and to authorize any of those acts:

(a) to make it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public and to communicate it to the public by telecommunication in that way; and

(b) if it is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the owner of the copyright in the sound recording.

(2) Subsection 18(2) of the Act is replaced by the following:

(2) Subsection (1) applies only if

(a) at the time of the first fixation or, if that first fixation was extended over a considerable period, during any substantial part of that period, the maker of the sound recording

(i) was a Canadian citizen or permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act,

(ii) was a citizen or permanent resident of a Berne Convention country, a Rome Convention country, a WPPT country or a country that is a WTO Member, or

(iii) had its headquarters in one of those countries, in the case of a corporation; or

(b) the first publication of the sound recording in a quantity sufficient to satisfy the reasonable demands of the public occurred in any country referred to in paragraph (a).

(3) Section 18 of the Act is amended by adding the following after subsection (2):

(2.1) Subsection (1.1) applies if

(a) at the time of the first fixation or, if that first fixation was extended over a considerable period, during any substantial part of that period, the maker of the sound recording

(i) was a Canadian citizen or permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act, or

(ii) had its headquarters in Canada, in the case of a corporation; or

(b) the first publication of the sound recording in a quantity sufficient to satisfy the reasonable demands of the public occurred in Canada.

(4) Section 18 of the Act is amended by adding the following before subsection (3):

(2.2) Subsection (1.1) also applies if

(a) at the time of the first fixation or, if that first fixation was extended over a considerable period, during any substantial part of that period, the maker of the sound recording

(i) was a citizen or permanent resident of a WPPT country, or

(ii) had its headquarters in a WPPT country, in the case of a corporation; or

(b) the first publication of the sound recording in a quantity sufficient to satisfy the reasonable demands of the public occurred in a WPPT country.

(5) Section 18 of the Act is amended by adding the following after subsection (3):

(4) The first publication of a sound recording is deemed to have occurred in a WPPT country, despite an earlier publication elsewhere, if the interval between the publication in that WPPT country and the earlier publication does not exceed 30 days.

12. (1) Subsection 19(1) of the Act is replaced by the following:

19. (1) If a sound recording has been published, the performer and maker are entitled, subject to subsection 20(1), to be paid equitable remuneration for its performance in public or its communication to the public by telecommunication, except for a communication in the circumstances referred to in paragraph 15(1.1)(d) or 18(1.1)(a) and any retransmission.

(1.1) If a sound recording has been published, the performer and maker are entitled, subject to subsections 20(1.1) and (2), to be paid equitable remuneration for its performance in public or its communication to the public by telecommunication, except for

(a) a communication in the circumstances referred to in paragraph 15(1.1)(d) or 18(1.1)(a), if the person entitled to the equitable remuneration is entitled to the right referred to in those paragraphs for that communication; and

(b) any retransmission.

(2) Section 19 of the Act is amended by adding the following before subsection (2):

(1.2) If a sound recording has been published, the performer and maker are entitled, subject to subsections 20(1.2) and (2.1), to be paid equitable remuneration for its performance in public or its communication to the public by telecommunication, except for a communication in the circumstances referred to in paragraph 15(1.1)(d) or 18(1.1)(a) and any retransmission.

(3) The portion of subsection 19(2) of the English version of the Act before paragraph (a) is replaced by the following:

(2) For the purpose of providing the remuneration mentioned in this section, a person who performs a published sound recording in public or communicates it to the public by telecommunication is liable to pay royalties

13. The Act is amended by adding the following after section 19:

19.1 Despite subsection 2.2(1), a sound recording that has been made available to the public by telecommunication in a way that allows a member of the public to access it from a place and at a time individually chosen by that member of the public, or that has been communicated to the public by telecommunication in that way, is deemed to have been published for the purposes of subsection 19(1).

14. The Act is amended by adding the following before section 20:

19.2 Despite subsection 2.2(1), a sound recording that has been made available to the public by telecommunication in a way that allows a member of the public to access it from a place and at a time individually chosen by that member of the public, or that has been communicated to the public by telecommunication in that way, is deemed to have been published for the purposes of subsection 19(1.2).

15. (1) Subsection 20(1) of the Act is replaced by the following:

20. (1) The right to remuneration conferred by subsection 19(1) applies only if

(a) the maker was, at the date of the first fixation, a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if a corporation, had its headquarters in Canada; or

(b) all the fixations done for the sound recording occurred in Canada.

(1.1) The right to remuneration conferred by subsection 19(1.1) applies only if

(a) the maker was, at the date of the first fixation, a citizen or permanent resident of a Rome Convention country or, if a corporation, had its headquarters in a Rome Convention country; or

(b) all the fixations done for the sound recording occurred in a Rome Convention country.

(2) Section 20 of the Act is amended by adding the following before subsection (2):

(1.2) The right to remuneration conferred by subsection 19(1.2) applies only if

(a) the maker was, at the date of the first fixation, a citizen or permanent resident of a WPPT country or, if a corporation, had its headquarters in a WPPT country; or

(b) all the fixations done for the sound recording occurred in a WPPT country.

(3) Subsection 20(2) of the Act is replaced by the following:

(2) Despite subsection (1.1), if the Minister is of the opinion that a Rome Convention country does not grant a right to remuneration, similar in scope and duration to that provided by subsection 19(1.1), for the performance in public or the communication to the public of a sound recording whose maker, at the date of its first fixation, was a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if a corporation, had its headquarters in Canada, the Minister may, by a statement published in the Canada Gazette, limit the scope and duration of the protection for sound recordings whose first fixation is done by a maker who is a citizen or permanent resident of that country or, if a corporation, has its headquarters in that country.

(4) Section 20 of the Act is amended by adding the following after subsection (2):

(2.1) Despite subsection (1.2), if the Minister is of the opinion that a WPPT country does not grant a right to remuneration, similar in scope and duration to that provided by subsection 19(1.2), for the performance in public or the communication to the public of a sound recording whose maker, at the date of its first fixation, was a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if a corporation, had its headquarters in Canada, the Minister may, by a statement published in the Canada Gazette, limit the scope and duration of the protection for sound recordings whose first fixation is done by a maker who is a citizen or permanent resident of that country or, if a corporation, has its headquarters in that country.

(5) Subsection 20(3) of the Act is replaced by the following:

(3) If so requested by a country that is a party to the North American Free Trade Agreement, the Minister may, by a statement published in the Canada Gazette, grant the right to remuneration conferred by subsection 19(1.1) to performers or makers who are nationals of that country and whose sound recordings embody dramatic or literary works.

16. (1) The portion of subsection 22(1) of the Act before paragraph (a) is replaced by the following:

22. (1) If the Minister is of the opinion that a country other than a Rome Convention country or a WPPT country grants or has undertaken to grant

(2) The portion of subsection 22(2) of the Act before paragraph (a) is replaced by the following:

(2) If the Minister is of the opinion that a country other than a Rome Convention country or a WPPT country neither grants nor has undertaken to grant

17. Subsections 23(1) to (3) of the Act are replaced by the following:

23. (1) Subject to this Act, copyright in a performer’s performance subsists until the end of 50 years after the end of the calendar year in which the performance occurs. However,

(a) if the performance is fixed in a sound recording before the copyright expires, the copyright continues until the end of 50 years after the end of the calendar year in which the first fixation of the performance in a sound recording occurs; and

(b) if a sound recording in which the performance is fixed is published before the copyright expires, the copyright continues until the earlier of the end of 50 years after the end of the calendar year in which the first publication of the sound recording occurs and the end of 99 years after the end of the calendar year in which the performance occurs.

(1.1) Subject to this Act, copyright in a sound recording subsists until the end of 50 years after the end of the calendar year in which the first fixation of the sound recording occurs. However, if the sound recording is published before the copyright expires, the copyright continues until the end of 50 years after the end of the calendar year in which the first publication of the sound recording occurs.

(1.2) Subject to this Act, copyright in a communication signal subsists until the end of 50 years after the end of the calendar year in which the communication signal is broadcast.

(2) The rights to remuneration conferred on performers and makers by section 19 have the same terms, respectively, as those provided by subsections (1) and (1.1).

(3) Subsections (1) to (2) apply whether the fixation, performance or broadcast occurred before or after the coming into force of this section.

18. Section 27 of the Act is amended by adding the following after subsection (2):

(2.1) For greater certainty, a copy made outside Canada does not infringe copyright under subsection (2) if, had it been made in Canada, it would have been made under a limitation or exception under this Act.

(2.2) It is an infringement of copyright for any person to do any of the following acts with respect to anything that the person knows or should have known is a lesson, as defined in subsection 30.01(1), or a fixation of one:

(a) to sell it or to rent it out;

(b) to distribute it to an extent that the owner of the copyright in the work or other subject-matter that is included in the lesson is prejudicially affected;

(c) by way of trade, to distribute it, expose or offer it for sale or rental or exhibit it in public;

(d) to possess it for the purpose of doing anything referred to in any of paragraphs (a) to (c);

(e) to communicate it by telecommunication to any person other than a person referred to in paragraph 30.01(3)(a); or

(f) to circumvent or contravene any measure taken in conformity with paragraph 30.01(6)(b), (c) or (d).

(2.3) It is an infringement of copyright for a person, by means of the Internet or another digital network, to provide a service primarily for the purpose of enabling acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.

(2.4) In determining whether a person has infringed copyright under subsection (2.3), the court may consider

(a) whether the person expressly or implic- itly marketed or promoted the service as one that could be used to enable acts of copyright infringement;

(b) whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement;

(c) whether the service has significant uses other than to enable acts of copyright infringement;

(d) the person’s ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so;

(e) any benefits the person received as a result of enabling the acts of copyright infringement; and

(f) the economic viability of the provision of the service if it were not used to enable acts of copyright infringement.

19. Section 28.1 of the Act is replaced by the following:

28.1 Any act or omission that is contrary to any of the moral rights of the author of a work or of the performer of a performer’s perform- ance is, in the absence of the author’s or performer’s consent, an infringement of those rights.

20. The portion of subsection 28.2(1) of the Act before paragraph (a) is replaced by the following:

28.2 (1) The author’s or performer’s right to the integrity of a work or performer’s perform- ance is infringed only if the work or the performance is, to the prejudice of its author’s or performer’s honour or reputation,

21. Section 29 of the Act is replaced by the following:

29. Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.

22. The Act is amended by adding the following after section 29.2:

Non-commercial User-generated Content

29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individ-ual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if

(a) the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes;

(b) the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so;

(c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and

(d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.

(2) The following definitions apply in subsection (1).

“intermediary” means a person or entity who regularly provides space or means for works or other subject-matter to be enjoyed by the public.

“use” means to do anything that by this Act the owner of the copyright has the sole right to do, other than the right to authorize anything.

Reproduction for Private Purposes

29.22 (1) It is not an infringement of copyright for an individual to reproduce a work or other subject-matter or any substantial part of a work or other subject-matter if

(a) the copy of the work or other subject-matter from which the reproduction is made is not an infringing copy;

(b) the individual legally obtained the copy of the work or other subject-matter from which the reproduction is made, other than by borrowing it or renting it, and owns or is authorized to use the medium or device on which it is reproduced;

(c) the individual, in order to make the reproduction, did not circumvent, as defined in section 41, a technological protection measure, as defined in that section, or cause one to be circumvented;

(d) the individual does not give the reproduction away; and

(e) the reproduction is used only for the individual’s private purposes.

(2) For the purposes of paragraph (1)(b), a “medium or device” includes digital memory in which a work or subject-matter may be stored for the purpose of allowing the telecommunication of the work or other subject-matter through the Internet or other digital network.

(3) In the case of a work or other subject-matter that is a musical work embodied in a sound recording, a performer’s performance of a musical work embodied in a sound recording or a sound recording in which a musical work or a performer’s performance of a musical work is embodied, subsection (1) does not apply if the reproduction is made onto an audio recording medium as defined in section 79.

(4) Subsection (1) does not apply if the individual gives away, rents or sells the copy of the work or other subject-matter from which the reproduction is made without first destroying all reproductions of that copy that the individual has made under that subsection.

Fixing Signals and Recording Programs for Later Listening or Viewing

29.23 (1) It is not an infringement of copyright for an individual to fix a communication signal, to reproduce a work or sound recording that is being broadcast or to fix or reproduce a performer’s performance that is being broadcast, in order to record a program for the purpose of listening to or viewing it later, if

(a) the individual receives the program legally;

(b) the individual, in order to record the program, did not circumvent, as defined in section 41, a technological protection meas- ure, as defined in that section, or cause one to be circumvented;

(c) the individual makes no more than one recording of the program;

(d) the individual keeps the recording no longer than is reasonably necessary in order to listen to or view the program at a more convenient time;

(e) the individual does not give the recording away; and

(f) the recording is used only for the individual’s private purposes.

(2) Subsection (1) does not apply if the individual receives the work, performer’s performance or sound recording under an on-demand service.

(3) The following definitions apply in this section.

“broadcast” means any transmission of a work or other subject-matter by telecommunication for reception by the public, but does not include a transmission that is made solely for perform-ance in public.

“on-demand service” means a service that allows a person to receive works, performer’s performances and sound recordings at times of their choosing.

Backup Copies

29.24 (1) It is not an infringement of copyright in a work or other subject-matter for a person who owns — or has a licence to use — a copy of the work or subject-matter (in this section referred to as the “source copy”) to reproduce the source copy if

(a) the person does so solely for backup purposes in case the source copy is lost, damaged or otherwise rendered unusable;

(b) the source copy is not an infringing copy;

(c) the person, in order to make the reproduction, did not circumvent, as defined in section 41, a technological protection meas- ure, as defined in that section, or cause one to be circumvented; and

(d) the person does not give any of the reproductions away.

(2) If the source copy is lost, damaged or otherwise rendered unusable, one of the reproductions made under subsection (1) becomes the source copy.

(3) The person shall immediately destroy all reproductions made under subsection (1) after the person ceases to own, or to have a licence to use, the source copy.

23. (1) Subsection 29.4(1) of the Act is replaced by the following:

29.4 (1) It is not an infringement of copyright for an educational institution or a person acting under its authority for the purposes of education or training on its premises to reproduce a work, or do any other necessary act, in order to display it.

(2) Subsection 29.4(3) of the Act is replaced by the following:

(3) Except in the case of manual reproduction, the exemption from copyright infringement provided by subsections (1) and (2) does not apply if the work or other subject-matter is commercially available, within the meaning of paragraph (a) of the definition “commercially available” in section 2, in a medium that is appropriate for the purposes referred to in those subsections.

24. (1) Paragraph 29.5(b) of the Act is replaced by the following:

(b) the performance in public of a sound recording, or of a work or performer’s performance that is embodied in a sound recording, as long as the sound recording is not an infringing copy or the person responsible for the performance has no reasonable grounds to believe that it is an infringing copy;

(2) Section 29.5 of the Act is amended by adding “and” at the end of paragraph (c) and by adding the following after that paragraph:

(d) the performance in public of a cine-matographic work, as long as the work is not an infringing copy or the person responsible for the performance has no reasonable grounds to believe that it is an infringing copy.

25. (1) The portion of subsection 29.6(1) of the Act before paragraph (a) is replaced by the following:

29.6 (1) It is not an infringement of copyright for an educational institution or a person acting under its authority to

(2) Paragraph 29.6(1)(b) of the Act is replaced by the following:

(b) perform the copy in public before an audience consisting primarily of students of the educational institution on its premises for educational or training purposes.

(3) Subsection 29.6(2) of the Act is repealed.

26. Paragraph 29.9(1)(a) of the Act is repealed.

27. The Act is amended by adding the following after section 30:

30.01 (1) For the purposes of this section, “lesson” means a lesson, test or examination, or part of one, in which, or during the course of which, an act is done in respect of a work or other subject-matter by an educational institution or a person acting under its authority that would otherwise be an infringement of copyright but is permitted under a limitation or exception under this Act.

(2) This section does not apply so as to permit any act referred to in paragraph (3)(a), (b) or (c) with respect to a work or other subject-matter whose use in the lesson constitutes an infringement of copyright or for whose use in the lesson the consent of the copyright owner is required.

(3) Subject to subsection (6), it is not an infringement of copyright for an educational institution or a person acting under its authority

(a) to communicate a lesson to the public by telecommunication for educational or training purposes, if that public consists only of students who are enrolled in a course of which the lesson forms a part or of other persons acting under the authority of the educational institution;

(b) to make a fixation of the lesson for the purpose of the act referred to in paragraph (a); or

(c) to do any other act that is necessary for the purpose of the acts referred to in paragraphs (a) and (b).

(4) A student who is enrolled in a course of which the lesson forms a part is deemed to be a person on the premises of the educational institution when the student participates in or receives the lesson by means of communication by telecommunication under paragraph (3)(a).

(5) It is not an infringement of copyright for a student who has received a lesson by means of communication by telecommunication under paragraph (3)(a) to reproduce the lesson in order to be able to listen to or view it at a more convenient time. However, the student shall destroy the reproduction within 30 days after the day on which the students who are enrolled in the course to which the lesson relates have received their final course evaluations.

(6) The educational institution and any person acting under its authority, except a student, shall

(a) destroy any fixation of the lesson within 30 days after the day on which the students who are enrolled in the course to which the lesson relates have received their final course evaluations;

(b) take measures that can reasonably be expected to limit the communication by telecommunication of the lesson to the persons referred to in paragraph (3)(a);

(c) take, in relation to the communication by telecommunication of the lesson in digital form, measures that can reasonably be expected to prevent the students from fixing, reproducing or communicating the lesson other than as they may do under this section; and

(d) take, in relation to a communication by telecommunication in digital form, any meas- ure prescribed by regulation.

30.02 (1) Subject to subsections (3) to (5), it is not an infringement of copyright for an educational institution that has a reprographic reproduction licence under which the institution is authorized to make reprographic reproductions of works in a collective society’s repertoire for an educational or training purpose

(a) to make a digital reproduction — of the same general nature and extent as the reprographic reproduction authorized under the licence — of a paper form of any of those works;

(b) to communicate the digital reproduction by telecommunication for an educational or training purpose to persons acting under the authority of the institution; or

(c) to do any other act that is necessary for the purpose of the acts referred to in paragraphs (a) and (b).

(2) Subject to subsections (3) to (5), it is not an infringement of copyright for a person acting under the authority of the educational institution to whom the work has been communicated under paragraph (1)(b) to print one copy of the work.

(3) An educational institution that makes a digital reproduction of a work under paragraph (1)(a) shall

(a) pay to the collective society, with respect to all the persons to whom the digital reproduction is communicated by the institution under paragraph (1)(b), the royalties that would be payable if one reprographic reproduction were distributed by the institution to each of those persons, and comply with the licence terms and conditions applicable to a reprographic reproduction to the extent that they are reasonably applicable to a digital reproduction;

(b) take measures to prevent the digital reproduction from being communicated by telecommunication to any persons who are not acting under the authority of the institution;

(c) take measures to prevent a person to whom the work has been communicated under paragraph (1)(b) from printing more than one copy, and to prevent any other reproduction or communication of the digital reproduction; and

(d) take any measure prescribed by regulation.

(4) An educational institution may not make a digital reproduction of a work under paragraph (1)(a) if

(a) the institution has entered into a digital reproduction agreement respecting the work with a collective society under which the institution may make a digital reproduction of the work, may communicate the digital reproduction by telecommunication to persons acting under the authority of the institution and may permit those persons to print at least one copy of the work;

(b) there is a tariff certified under section 70.15 that is applicable to the digital reproduction of the work, to the communication of the digital reproduction by telecommunication to persons acting under the authority of the institution and to the printing by those persons of at least one copy of the work; or

(c) the institution has been informed by the collective society that is authorized to enter into reprographic agreements with respect to the work that the owner of the copyright in the work has informed it, under subsection (5), that the owner refuses to authorize the collective society to enter into a digital reproduction agreement with respect to the work.

(5) If the owner of the copyright in a work informs the collective society that is authorized to enter into reprographic agreements with respect to the work that the owner refuses to authorize it to enter into digital reproduction agreements with respect to the work, the collective society shall inform the educational institutions with which it has entered into reprographic reproduction agreements with respect to the work that they are not permitted to make digital reproductions under subsection (1).

(6) The owner of the copyright in a work who, in respect of the work, has authorized a collective society to enter into a reprographic reproduction agreement with an educational institution is deemed to have authorized the society to enter into a digital reproduction agreement with the institution — subject to the same restrictions as a reprographic reproduction agreement — unless the owner has refused to give this authorization under subsection (5) or has authorized another collective society to enter into a digital reproduction agreement with respect to the work.

(7) In proceedings against an educational institution for making a digital reproduction of a paper form of a work, or for communicating such a reproduction by telecommunication for an educational or training purpose to persons acting under the authority of the institution, the owner of the copyright in the work may not recover an amount more than

(a) in the case where there is a digital reproduction licence that meets the conditions described in paragraph (4)(a) in respect of the work — or, if none exists in respect of the work, in respect of a work of the same category — the amount of royalties that would be payable under that licence in respect of those acts or, if there is more than one applicable licence, the greatest amount of royalties payable under any of those licences; and

(b) in the case where there is no licence described in paragraph (a) but there is a reprographic reproduction licence in respect of the work — or, if none exists in respect of the work, in respect of a work of the same category — the amount of royalties that would be payable under that licence in respect of those acts or, if there is more than one applicable licence, the greatest amount of royalties payable under any of those licences.

(8) The owner of the copyright in a work may not recover any damages against a person acting under the authority of the educational institution who, in respect of a digital reproduction of the work that is communicated to the person by telecommunication, prints one copy of the work if, at the time of the printing, it was reasonable for the person to believe that the communication was made in accordance with paragraph (1)(b).

30.03 (1) If an educational institution has paid royalties to a collective society for the digital reproduction of a work under paragraph 30.02(3)(a) and afterwards the institution enters into a digital reproduction agreement described in paragraph 30.02(4)(a) with any collective society,

(a) in the case where the institution would — under that digital reproduction agreement — pay a greater amount of royalties for the digital reproduction of that work than what was payable under paragraph 30.02(3)(a), the institution shall pay to the collective society to which it paid royalties under that paragraph the difference between

(i) the amount of royalties that the institution would have had to pay for the digital reproduction of that work if the agreement had been entered into on the day on which the institution first made a digital reproduction under paragraph 30.02(1)(a), and

(ii) the amount of royalties that the institution paid to the society under paragraph 30.02(3)(a) for the digital reproduction of that work from the day on which that paragraph comes into force until the day on which they enter into the digital reproduction agreement; and

(b) in the case where the institution would — under that digital reproduction agreement — pay a lesser amount of royalties for the digital reproduction of that work than what was payable under paragraph 30.02(3)(a), the collective society to which the institution paid royalties under that paragraph shall pay to the institution the difference between

(i) the amount of royalties that the institution paid to the society under paragraph 30.02(3)(a) for the digital reproduction of that work from the day on which that paragraph comes into force until the day on which they enter into the digital reproduction agreement, and

(ii) the amount of royalties that the institution would have had to pay for the digital reproduction of that work if the agreement had been entered into on the day on which the institution first made a digital reproduction under paragraph 30.02(1)(a).

(2) If an educational institution has paid royalties to a collective society for the digital reproduction of a work under paragraph 30.02(3)(a) and afterwards a tariff applies to the digital reproduction of that work under paragraph 30.02(4)(b),

(a) in the case where the institution would — under the tariff — pay a greater amount of royalties for the digital reproduction of that work than what was payable under paragraph 30.02(3)(a), the institution shall pay to the collective society to which it paid royalties under that paragraph the difference between

(i) the amount of royalties that the institution would have had to pay for the digital reproduction of that work if the tariff had been certified on the day on which the institution first made a digital reproduction under paragraph 30.02(1)(a), and

(ii) the amount of royalties that the institution paid to the society under paragraph 30.02(3)(a) for the digital reproduction of that work from the day on which that paragraph comes into force until the day on which the tariff is certified; and

(b) in the case where the institution would — under the tariff — pay a lesser amount of royalties for the digital reproduction of that work than what was payable under paragraph 30.02(3)(a), the collective society to which the institution paid royalties under that paragraph shall pay to the institution the difference between

(i) the amount of royalties that the institution paid to the society under paragraph 30.02(3)(a) for the digital reproduction of that work from the day on which that paragraph comes into force until the day on which the tariff is certified, and

(ii) the amount of royalties that the institution would have had to pay for the digital reproduction of that work if the tariff had been certified on the day on which the institution first made a digital reproduction under paragraph 30.02(1)(a).

30.04 (1) Subject to subsections (2) to (5), it is not an infringement of copyright for an educational institution, or a person acting under the authority of one, to do any of the following acts for educational or training purposes in respect of a work or other subject-matter that is available through the Internet:

(a) reproduce it;

(b) communicate it to the public by telecommunication, if that public primarily consists of students of the educational institution or other persons acting under its authority;

(c) perform it in public, if that public primarily consists of students of the educational institution or other persons acting under its authority; or

(d) do any other act that is necessary for the purpose of the acts referred to in paragraphs (a) to (c).

(2) Subsection (1) does not apply unless the educational institution or person acting under its authority, in doing any of the acts described in that subsection in respect of the work or other subject-matter, mentions the following:

(a) the source; and

(b) if given in the source, the name of

(i) the author, in the case of a work,

(ii) the performer, in the case of a performer’s performance,

(iii) the maker, in the case of a sound recording, and

(iv) the broadcaster, in the case of a communication signal.

(3) Subsection (1) does not apply if the work or other subject-matter — or the Internet site where it is posted — is protected by a technological protection measure that restricts access to the work or other subject-matter or to the Internet site.

(4) Subsection (1) does not permit a person to do any act described in that subsection in respect of a work or other subject-matter if

(a) that work or other subject-matter — or the Internet site where it is posted — is protected by a technological protection meas- ure that restricts the doing of that act; or

(b) a clearly visible notice — and not merely the copyright symbol — prohibiting that act is posted at the Internet site where the work or other subject-matter is posted or on the work or other subject-matter itself.

(5) Subsection (1) does not apply if the educational institution or person acting under its authority knows or should have known that the work or other subject-matter was made available through the Internet without the consent of the copyright owner.

(6) The Governor in Council may make regulations for the purposes of paragraph (4)(b) prescribing what constitutes a clearly visible notice.

28. Paragraph 30.1(1)(c) of the Act is replaced by the following:

(c) in an alternative format if the library, archive or museum or a person acting under the authority of the library, archive or museum considers that the original is currently in a format that is obsolete or is becoming obsolete, or that the technology required to use the original is unavailable or is becoming unavailable;

29. Subsections 30.2(4) and (5) of the Act are replaced by the following:

(4) A library, archive or museum may provide the person for whom the copy is made under subsection (2) with the copy only on the condition that

(a) the person is provided with a single copy of the work; and

(b) the library, archive or museum informs the person that the copy is to be used solely for research or private study and that any use of the copy for a purpose other than research or private study may require the authorization of the copyright owner of the work in question.

(5) Subject to subsection (5.02), a library, archive or museum, or a person acting under the authority of one, may do, on behalf of a patron of another library, archive or museum, anything under subsection (1) or (2) that it is authorized by this section to do on behalf of one of its own patrons.

(5.01) For the purpose of subsection (5), the making of a copy of a work other than by reprographic reproduction is deemed to be a making of a copy of the work that may be done under subsection (2).

(5.02) A library, archive or museum, or a person acting under the authority of one, may, under subsection (5), provide a copy in digital form to a person who has requested it through another library, archive or museum if the providing library, archive or museum or person takes measures to prevent the person who has requested it from

(a) making any reproduction of the digital copy, including any paper copies, other than printing one copy of it;

(b) communicating the digital copy to any other person; and

(c) using the digital copy for more than five business days from the day on which the person first uses it.

30. (1) Subsection 30.21(1) of the Act is replaced by the following:

30.21 (1) Subject to subsections (3) and (3.1), it is not an infringement of copyright for an archive to make, for any person requesting to use the copy for research or private study, a copy of an unpublished work that is deposited in the archive and provide the person with it.

(2) Subsections 30.21(3) and (4) of the Act are replaced by the following:

(3) The archive may copy the work only on the condition that

(a) the person who deposited the work, if a copyright owner, did not, at the time the work was deposited, prohibit its copying; and

(b) copying has not been prohibited by any other owner of copyright in the work.

(3.1) The archive may provide the person for whom a copy is made under subsection (1) with the copy only on the condition that

(a) the person is provided with a single copy of the work; and

(b) the archive informs the person that the copy is to be used solely for research or private study and that any use of the copy for a purpose other than research or private study may require the authorization of the copyright owner of the work in question.

(4) The Governor in Council may prescribe by regulation the manner and form in which the conditions set out in subsections (3) and (3.1) may be met.

31. Section 30.6 of the Act is replaced by the following:

30.6 It is not an infringement of copyright in a computer program for a person who owns a copy of the computer program that is authorized by the owner of the copyright, or has a licence to use a copy of the computer program, to

(a) reproduce the copy by adapting, modifying or converting it, or translating it into another computer language, if the person proves that the reproduced copy

(i) is essential for the compatibility of the computer program with a particular computer,

(ii) is solely for the person’s own use, and

(iii) was destroyed immediately after the person ceased to be the owner of the copy of the computer program or to have a licence to use it; or

(b) reproduce for backup purposes the copy or a reproduced copy referred to in paragraph (a) if the person proves that the reproduction for backup purposes was destroyed immediately after the person ceased to be the owner of the copy of the computer program or to have a licence to use it.

30.61 (1) It is not an infringement of copyright in a computer program for a person who owns a copy of the computer program that is authorized by the owner of the copyright, or has a licence to use a copy of the computer program, to reproduce the copy if

(a) they reproduce the copy for the sole purpose of obtaining information that would allow the person to make the program and another computer program interoperable; and

(b) they do not use or disclose that information, except as necessary to make the program and another computer program interoperable or to assess that interoperability.

(2) In the case where that information is used or disclosed as necessary to make another computer program interoperable with the program, subsection (1) applies even if the other computer program incorporates the information and is then sold, rented or otherwise distributed.

Encryption Research

30.62 (1) Subject to subsections (2) and (3), it is not an infringement of copyright for a person to reproduce a work or other subject-matter for the purposes of encryption research if

(a) it would not be practical to carry out the research without making the copy;

(b) the person has lawfully obtained the work or other subject-matter; and

(c) the person has informed the owner of the copyright in the work or other subject-matter.

(2) Subsection (1) does not apply if the person uses or discloses information obtained through the research to commit an act that is an offence under the Criminal Code.

(3) Subsection (1) applies with respect to a computer program only if, in the event that the research reveals a vulnerability or a security flaw in the program and the person intends to make the vulnerability or security flaw public, the person gives adequate notice of the vulnerability or security flaw and of their intention to the owner of copyright in the program. However, the person need not give that adequate notice if, in the circumstances, the public interest in having the vulnerability or security flaw made public without adequate notice outweighs the owner’s interest in receiving that notice.

Security

30.63 (1) Subject to subsections (2) and (3), it is not an infringement of copyright for a person to reproduce a work or other subject-matter for the sole purpose, with the consent of the owner or administrator of a computer, computer system or computer network, of assessing the vulnerability of the computer, system or network or of correcting any security flaws.

(2) Subsection (1) does not apply if the person uses or discloses information obtained through the assessment or correction to commit an act that is an offence under the Criminal Code.

(3) Subsection (1) applies with respect to a computer program only if, in the event that the assessment or correction reveals a vulnerability or a security flaw in the program and the person intends to make the vulnerability or security flaw public, the person gives adequate notice of the vulnerability or security flaw and of their intention to the owner of copyright in the program. However, the person need not give that adequate notice if, in the circumstances, the public interest in having the vulnerability or security flaw made public without adequate notice outweighs the owner’s interest in receiving that notice.

32. The Act is amended by adding the following after section 30.7:

Temporary Reproductions for Technological Processes

30.71 It is not an infringement of copyright to make a reproduction of a work or other subject-matter if

(a) the reproduction forms an essential part of a technological process;

(b) the reproduction’s only purpose is to facilitate a use that is not an infringement of copyright; and

(c) the reproduction exists only for the duration of the technological process.

33. The portion of subsection 30.8(11) of the Act after paragraph (c) is replaced by the following:

The undertaking must hold a broadcasting licence issued by the Canadian Radio-television and Telecommunications Commission under the Broadcasting Act, or be exempted from this requirement by the Canadian Radio-television and Telecommunications Commission.

34. (1) The portion of subsection 30.9(1) of the Act before paragraph (b) is replaced by the following:

30.9 (1) It is not an infringement of copyright for a broadcasting undertaking to reproduce in accordance with this section a sound recording, or a performer’s performance or work that is embodied in a sound recording, solely for the purpose of their broadcasting, if the undertaking

(a) owns the copy of the sound recording, performer’s performance or work and that copy is authorized by the owner of the copyright, or has a licence to use the copy;

(2) Subsection 30.9(4) of the Act is replaced by the following:

(4) The broadcasting undertaking must destroy the reproduction when it no longer possesses the sound recording, or performer’s performance or work embodied in the sound recording, or its licence to use the sound recording, performer’s performance or work expires, or at the latest within 30 days after making the reproduction, unless the copyright owner authorizes the reproduction to be retained.

(3) Subsection 30.9(6) of the Act is repealed.

35. The Act is amended by adding the following after section 31:

Network Services

31.1 (1) A person who, in providing serv- ices related to the operation of the Internet or another digital network, provides any means for the telecommunication or the reproduction of a work or other subject-matter through the Internet or that other network does not, solely by reason of providing those means, infringe copyright in that work or other subject-matter.

(2) Subject to subsection (3), a person referred to in subsection (1) who caches the work or other subject-matter, or does any similar act in relation to it, to make the telecommunication more efficient does not, by virtue of that act alone, infringe copyright in the work or other subject-matter.

(3) Subsection (2) does not apply unless the person, in respect of the work or other subject-matter,

(a) does not modify it, other than for technical reasons;

(b) ensures that any directions related to its caching or the doing of any similar act, as the case may be, that are specified in a manner consistent with industry practice by whoever made it available for telecommunication through the Internet or another digital network, and that lend themselves to automated reading and execution, are read and executed; and

(c) does not interfere with the use of technology that is lawful and consistent with industry practice in order to obtain data on the use of the work or other subject-matter.

(4) Subject to subsection (5), a person who, for the purpose of allowing the telecommunication of a work or other subject-matter through the Internet or another digital network, provides digital memory in which another person stores the work or other subject-matter does not, by virtue of that act alone, infringe copyright in the work or other subject-matter.

(5) Subsection (4) does not apply in respect of a work or other subject-matter if the person providing the digital memory knows of a decision of a court of competent jurisdiction to the effect that the person who has stored the work or other subject-matter in the digital memory infringes copyright by making the copy of the work or other subject-matter that is stored or by the way in which he or she uses the work or other subject-matter.

(6) Subsections (1), (2) and (4) do not apply in relation to an act that constitutes an infringement of copyright under subsection 27(2.3).

36. The portion of subsection 32(1) of the Act before paragraph (a) is replaced by the following:

32. (1) It is not an infringement of copyright for a person with a perceptual disability, for a person acting at the request of such a person or for a non-profit organization acting for the benefit of such a person to

37. The Act is amended by adding the following after section 32:

32.01 (1) Subject to this section, it is not an infringement of copyright for a non-profit organization acting for the benefit of persons with a print disability to make a copy, in a format specially designed for persons with a print disability, of a work and to send the copy to a non-profit organization in another country for use by persons with print disabilities in that country, if the author of the work that is reformatted is

(a) a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act; or

(b) a citizen or permanent resident of the country to which the copy is sent.

(2) Subsection (1) does not authorize a large print book or a cinematographic work to be sent outside Canada.

(3) Subsection (1) does not authorize a copy to be sent to a country if the organization knows or has reason to believe that the work, in the format specially designed for persons with a print disability, is available in that country within a reasonable time and for a reasonable price, and may be located in that country with reasonable effort.

(3.1) If a non-profit organization that is relying on the exception set out in subsection (1) infringes copyright by reason only of making a mistake in good faith as to the citizenship or residency of the author of the work, an injunction is the only remedy that the owner of the copyright in the work has against the organization.

(4) The organization making and sending the copy shall pay, in accordance with the regulations, any royalty established under the regulations to the copyright owner in the work.

(5) If the organization cannot locate the copyright owner, despite making reasonable efforts to do so, the organization shall pay, in accordance with the regulations, any royalty established under the regulations to a collective society.

(6) The organization making and sending the copy shall submit reports to an authority in accordance with the regulations on the organization’s activities under this section.

(7) The Governor in Council may make regulations

(a) requiring a non-profit organization that seeks to send a copy outside Canada to, before doing so, enter into a contract with the recipient non-profit organization with respect to the use of the copy;

(b) respecting the form and content of such contracts;

(c) respecting any royalties to be paid under subsections (4) and (5);

(d) respecting to which collective society a royalty is payable in relation to works or classes of works for the purposes of subsection (5);

(e) respecting what constitutes reasonable efforts for the purposes of subsection (5); and

(f) respecting the reports to be made, and the authorities to which the reports are to be submitted, under subsection (6).

(8) In this section, “print disability” means a disability that prevents or inhibits a person from reading a literary, musical or dramatic work in its original format, and includes such a disability resulting from

(a) severe or total impairment of sight or the inability to focus or move one’s eyes;

(b) the inability to hold or manipulate a book; or

(c) an impairment relating to comprehension.

38. Subsection 32.2(1) of the Act is amended by striking out “or” at the end of paragraph (d), by adding “or” at the end of paragraph (e) and by adding the following after paragraph (e):

(f) for an individual to use for private or non-commercial purposes, or permit the use of for those purposes, a photograph or portrait that was commissioned by the individual for personal purposes and made for valuable consideration, unless the individual and the owner of the copyright in the photograph or portrait have agreed otherwise.

39. The Act is amended by adding the following after section 32.5:

32.6 Despite sections 27, 28.1 and 28.2, if a person has, before the day on which subsection 15(1.1), 17.1(1) or 18(1.1) applies in respect of a particular performers’ performance or sound recording, incurred an expenditure or a liability in connection with, or in preparation for, the doing of an act that would, if done after that day, have infringed rights under that subsection, any right or interest of that person that arises from, or in connection with, the doing of that act and that is subsisting and valuable on that day is not, for two years after the day on which this section comes into force, prejudiced or diminished by reason only of the subsequent application of that subsection in respect of the performers’ performance or sound recording.

40. Subsection 33(1) of the Act is replaced by the following:

33. (1) Despite subsections 27(1), (2) and (4) and sections 27.1, 28.1 and 28.2, if a person has, before the later of January 1, 1996 and the day on which a country becomes a treaty country other than a WCT country, incurred an expenditure or liability in connection with, or in preparation for, the doing of an act that, if that country had been such a treaty country, would have infringed copyright in a work or moral rights in respect of a work, any right or interest of that person that arises from, or in connection with, the doing of that act and that is subsisting and valuable on the later of those days is not, except as provided by an order of the Board made under subsection 78(3), prejudiced or diminished by reason only of that country having become such a treaty country.

41. The Act is amended by adding the following after section 33:

33.1 (1) Despite subsections 27(1), (2) and (4) and sections 27.1, 28.1 and 28.2, if a person has, before the later of the day on which this section comes into force and the day on which a country that is a treaty country but not a WCT country becomes a WCT country, incurred an expenditure or liability in connection with, or in preparation for, the doing of an act that, if that country had been a WCT country, would have infringed a right under paragraph 3(1)(j), any right or interest of that person that arises from, or in connection with, the doing of that act and that is subsisting and valuable on the later of those days is not, except as provided by an order of the Board made under subsection 78(3), prejudiced or diminished by reason only of that country having become a WCT country.

(2) Despite subsection (1), a person’s right or interest that is protected by that subsection terminates as against the copyright owner if and when the owner pays the person any compensation that is agreed to between the parties or, failing agreement, that is determined by the Board in accordance with section 78.

33.2 (1) Despite subsections 27(1), (2) and (4) and sections 27.1, 28.1 and 28.2, if a person has, before the later of the day on which this section comes into force and the day on which a country that is not a treaty country becomes a WCT country, incurred an expenditure or a liability in connection with, or in preparation for, the doing of an act that, if that country had been a WCT country, would have infringed copyright in a work or moral rights in respect of a work, any right or interest of that person that arises from, or in connection with, the doing of that act and that is subsisting and valuable on the later of those days is not, except as provided by an order of the Board made under subsection 78(3), prejudiced or diminished by reason only of that country having become a WCT country.

(2) Despite subsection (1), a person’s right or interest that is protected by that subsection terminates as against the copyright owner if and when that owner pays the person any compensation that is agreed to between the parties or, failing agreement, that is determined by the Board in accordance with section 78.

42. The Act is amended by adding the following before section 34:

Infringement of Copyright and Moral Rights

43. Subsection 34(2) of the Act is replaced by the following:

(2) In any proceedings for an infringement of moral rights, the court may grant to the holder of those rights all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right.

44. The portion of subsection 34.1(1) of the Act before paragraph (a) is replaced by the following:

34.1 (1) In any civil proceedings taken under this Act in which the defendant puts in issue either the existence of the copyright or the title of the plaintiff to it,

45. Sections 36 and 37 of the Act are repealed.

46. (1) Subsections 38.1(1) to (3) of the Act are replaced by the following:

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 which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally,

(a) in a sum of not less than $500 and not more than $20,000 that the court considers just, with respect to all infringements involved in the proceedings for each work or other subject-matter, if the infringements are for commercial purposes; and

(b) in a sum of not less than $100 and not more than $5,000 that the court considers just, with respect to all infringements involved in the proceedings for all works or other subject-matter, if the infringements are for non-commercial purposes.

(1.1) An infringement under subsection 27(2.3) may give rise to an award of statutory damages with respect to a work or other subject-matter only if the copyright in that work or other subject-matter was actually infringed as a result of the use of a service referred to in that subsection.

(1.11) For the purpose of subsection (1), an infringement under subsection 27(2.3) is deemed to be for a commercial purpose.

(1.12) If the copyright owner has made an election under subsection (1) with respect to a defendant’s infringements that are for non-commercial purposes, they are barred from recovering statutory damages under this section from that defendant with respect to any other of the defendant’s infringements that were done for non-commercial purposes before the institution of the proceedings in which the election was made.

(1.2) If a copyright owner has made an election under subsection (1) with respect to a defendant’s infringements that are for non-commercial purposes, every other copyright owner is barred from electing to recover statutory damages under this section in respect of that defendant for any of the defendant’s infringements that were done for non-commercial purposes before the institution of the proceedings in which the election was made.

(2) If 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 under paragraph (1)(a) to less than $500, but not less than $200.

(3) In awarding statutory damages under paragraph (1)(a) or subsection (2), the court may award, with respect to each work or other subject-matter, a lower amount than $500 or $200, as the case may be, that the court considers just, if

(a) either

(i) there is more than one work or other subject-matter in a single medium, or

(ii) the award relates only to one or more infringements under subsection 27(2.3); and

(b) the awarding of even the minimum amount referred to in that paragraph or that subsection would result in a total award that, in the court’s opinion, is grossly out of proportion to the infringement.

(2) Subsection 38.1(5) of the Act is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):

(d) in the case of infringements for non-commercial purposes, the need for an award to be proportionate to the infringements, in consideration of the hardship the award may cause to the defendant, whether the infringement was for private purposes or not, and the impact of the infringements on the plaintiff.

(3) Subsection 38.1(6) of the Act is amended by striking out “or” at the end of paragraph (b), by adding “or” at the end of paragraph (c) and by adding the following after paragraph (c):

(d) an educational institution that is sued in the circumstances referred to in subsection 30.02(7) or a person acting under its authority who is sued in the circumstances referred to in subsection 30.02(8).

47. Section 41 of the Act is replaced by the following: