Copyright Act Incorporating C-60

Copyright Act
CHAPTER C-42

An act respecting copyright

NEW BILL C-60 PROVISIONS:
Photographer provisions – Section 10
Performers Rights – Section 15
Making Available – Section 2.4(1)(a)
Private copying infringement – Section 27(2.1)
Education provisions – Section 30.01
Internet service provider liability – Section 31.1(1)
Rights Management Information – Section 34.01(1)
Anti-circumvention – Section 34.02(1)
ISP Notice and Notice – Section 40.1(1)
Search Engine Notice and Takedown – Section 40.3(1)

 

SHORT TITLE

 

Short title

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

R.S., c. C-30, s. 1.

 
 

INTERPRETATION

 

Definitions

2. In this Act,

 

"architectural work" « oeuvre architecturale »

"architectural work" means any building or structure or any model of a building or structure;

"architectural work of art" [Repealed, 1993, c. 44, s. 53]

 

"artistic work" &laquo oeuvre artistique &raquo

"artistic work" includes paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works;

 

"Berne Convention country" &laquo pays partie ˆ la Convention de Berne &raquo

"Berne Convention country" means a country that is a party to the Convention for the Protection of Literary and Artistic Works concluded at Berne on September 9, 1886, or any one of its revisions, including the Paris Act of 1971;

 

"Board" &laquoCommission&raquo

"Board" means the Copyright Board established by subsection 66(1);

 

"book" &laquo livre &raquo

"book" means a volume or a part or division of a volume, in printed form, but does not include

(a) a pamphlet,

(b) a newspaper, review, magazine or other periodical,

(c) a map, chart, plan or sheet music where the map, chart, plan or sheet music is separately published, and

(d) an instruction or repair manual that accompanies a product or that is supplied as an accessory to a service;

 

"broadcaster" &laquo radiodiffuseur &raquo

"broadcaster" means a body that, in the course of operating a broadcasting undertaking, broadcasts a communication signal in accordance with the law of the country in which the broadcasting undertaking is carried on, but excludes a body whose primary activity in relation to communication signals is their retransmission;

 

"choreographic work" &laquooeuvre chorégraphique&raquo

"choreographic work" includes any work of choreography, whether or not it has any story line;

"cinematograph" [Repealed, 1997, c. 24, s. 1]

 

"cinematographic work" &laquo oeuvre cinématographique &raquo

"cinematographic work" includes any work expressed by any process analogous to cinematography, whether or not accompanied by a soundtrack;

 

"collective society" &laquo société de gestion &raquo

"collective society" means a society, association or corporation that carries on the business of collective administration of copyright or of the remuneration right conferred by section 19 or 81 for the benefit of those who, by assignment, grant of licence, appointment of it as their agent or otherwise, authorize it to act on their behalf in relation to that collective administration, and

(a) operates a licensing scheme, applicable in relation to a repertoire of works, performer’s performances, sound recordings or communication signals of more than one author, performer, sound recording maker or broadcaster, pursuant to which the society, association or corporation sets out classes of uses that it agrees to authorize under this Act, and the royalties and terms and conditions on which it agrees to authorize those classes of uses, or

(b) carries on the business of collecting and distributing royalties or levies payable pursuant to this Act;

 

"collective work" &laquorecueil&raquo

"collective work" means

(a) an encyclopaedia, dictionary, year book or similar work,

(b) a newspaper, review, magazine or similar periodical, and

(c) any work written in distinct parts by different authors, or in which works or parts of works of different authors are incorporated;

 

"commercially available" &laquo accessible sur le marché &raquo

"commercially available" means, in relation to a work or other subject-matter,

(a) available on the Canadian market within a reasonable time and for a reasonable price and may be located with reasonable effort, or

(b) for which a licence to reproduce, perform in public or communicate to the public by telecommunication is available from a collective society within a reasonable time and for a reasonable price and may be located with reasonable effort;

 

"communication signal" &laquo signal de communication &raquo

"communication signal" means radio waves transmitted through space without any artificial guide, for reception by the public;

 

"compilation" &laquo compilation &raquo

"compilation" means

(a) a work resulting from the selection or arrangement of literary, dramatic, musical or artistic works or of parts thereof, or

(b) a work resulting from the selection or arrangement of data;

 

"computer program" &laquoprogramme d’ordinateur&raquo

"computer program" means a set of instructions or statements, expressed, fixed, embodied or stored in any manner, that is to be used directly or indirectly in a computer in order to bring about a specific result;

 

"copyright" &laquo droit d’auteur &raquo

"copyright" means the rights described in

(a) section 3, in the case of a work,

(b) sections 15 and 26, in the case of a performer’s performance,

(c) section 18, in the case of a sound recording, or

(d) section 21, in the case of a communication signal;

 

"country" &laquo pays &raquo

"country" includes any territory;

 

"defendant" Version anglaise seulement

"defendant" includes a respondent to an application;

"delivery" [Repealed, 1997, c. 24, s. 1]

 

"dramatic work" &laquo oeuvre dramatique &raquo

"dramatic work" includes

(a) any piece for recitation, choreographic work or mime, the scenic arrangement or acting form of which is fixed in writing or otherwise,

(b) any cinematographic work, and

(c) any compilation of dramatic works;

 

"educational institution" &laquo établissement d’enseignement &raquo

"educational institution" means

(a) a non-profit institution licensed or recognized by or under an Act of Parliament or the legislature of a province to provide pre-school, elementary, secondary or post-secondary education,

(b) a non-profit institution that is directed or controlled by a board of education regulated by or under an Act of the legislature of a province and that provides continuing, professional or vocational education or training,

(c) a department or agency of any order of government, or any non-profit body, that controls or supervises education or training referred to in paragraph (a) or (b), or

(d) any other non-profit institution prescribed by regulation;

 

"engravings" &laquogravure&raquo

"engravings" includes etchings, lithographs, woodcuts, prints and other similar works, not being photographs;

 

"every original literary, dramatic, musical and artistic work" &laquo toute oeuvre littéraire, dramatique, musicale ou artistique originale &raquo

"every original literary, dramatic, musical and artistic work" includes every original production in the literary, scientific or artistic domain, whatever may be the mode or form of its expression, such as compilations, books, pamphlets and other writings, lectures, dramatic or dramatico-musical works, musical works, translations, illustrations, sketches and plastic works relative to geography, topography, architecture or science;

 

"exclusive distributor" &laquo distributeur exclusif &raquo

"exclusive distributor" means, in relation to a book, a person who

(a) has, before or after the coming into force of this definition, been appointed in writing, by the owner or exclusive licensee of the copyright in the book in Canada, as

(i) the only distributor of the book in Canada or any part of Canada, or

(ii) the only distributor of the book in Canada or any part of Canada in respect of a particular sector of the market, and

(b) meets the criteria established by regulations made under section 2.6,

and, for greater certainty, if there are no regulations made under section 2.6, then no person qualifies under this definition as an "exclusive distributor";

"Her Majesty’s Realms and Territories" [Repealed, 1997, c. 24, s. 1]

 

"infringing" &laquo contrefa&laquoon &raquo

"infringing" means

(a) in relation to a work in which copyright subsists, any copy, including any colourable imitation, made or dealt with in contravention of this Act,

(b) in relation to a performer’s performance in respect of which copyright subsists, any fixation or copy of a fixation of it made or dealt with in contravention of this Act,

(c) in relation to a sound recording in respect of which copyright subsists, any copy of it made or dealt with in contravention of this Act, or

(d) in relation to a communication signal in respect of which copyright subsists, any fixation or copy of a fixation of it made or dealt with in contravention of this Act.

The definition includes a copy that is imported in the circumstances set out in paragraph 27(2)(e) and section 27.1 but does not otherwise include a copy made with the consent of the owner of the copyright in the country where the copy was made;

 

"lecture" &laquoconférence&raquo

"lecture" includes address, speech and sermon;

 

"legal representatives" &laquoreprésentants légaux&raquo

"legal representatives" includes heirs, executors, administrators, successors and assigns, or agents or attorneys who are thereunto duly authorized in writing;

 

"library, archive or museum" &laquo biblioth&raquoque, musée ou service d’archives &raquo

"library, archive or museum" means

(a) an institution, whether or not incorporated, that is not established or conducted for profit or that does not form a part of, or is not administered or directly or indirectly controlled by, a body that is established or conducted for profit, in which is held and maintained a collection of documents and other materials that is open to the public or to researchers, or

(b) any other non-profit institution prescribed by regulation;

 

"literary work" &laquo oeuvre littéraire &raquo

"literary work" includes tables, computer programs, and compilations of literary works;

 

"maker" &laquo producteur &raquo

"maker" means

(a) in relation to a cinematographic work, the person by whom the arrangements necessary for the making of the work are undertaken, or

(b) in relation to a sound recording, the person by whom the arrangements necessary for the first fixation of the sounds are undertaken;

 

"Minister" &laquo ministre &raquo

"Minister", except in section 44.1, means the Minister of Industry;

 

"moral rights" &laquodroits moraux&raquo

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

"moral rights" means the rights described in subsection 14.1(1);

"musical work" &laquo oeuvre musicale &raquo

"musical work" means any work of music or musical composition, with or without words, and includes any compilation thereof;

 

"perceptual disability" &laquo déficience perceptuelle &raquo

"perceptual disability" means a disability that prevents or inhibits a person from reading or hearing a literary, musical, dramatic or artistic work in its original format, and includes such a disability resulting from

(a) severe or total impairment of sight or hearing 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;

 

"performance" &laquo représentation &raquo ou &laquo exécution &raquo

"performance" means any acoustic or visual representation of a work, performer’s performance, sound recording or communication signal, including a representation made by means of any mechanical instrument, radio receiving set or television receiving set;

 

"performer’s performance" &laquo prestation &raquo

"performer’s performance" means any of the following when done by a performer:

(a) a performance of an artistic work, dramatic work or musical work, whether or not the work was previously fixed in any material form, and whether or not the work’s term of copyright protection under this Act has expired,

(b) a recitation or reading of a literary work, whether or not the work’s term of copyright protection under this Act has expired, or

(c) an improvisation of a dramatic work, musical work or literary work, whether or not the improvised work is based on a pre-existing work;

 

"photograph" &laquo photographie &raquo

"photograph" includes photo-lithograph and any work expressed by any process analogous to photography;

 

"plaintiff" Version anglaise seulement

"plaintiff" includes an applicant;

 

"plate" &laquo planche &raquo

"plate" includes

(a) any stereotype or other plate, stone, block, mould, matrix, transfer or negative used or intended to be used for printing or reproducing copies of any work, and

(b) any matrix or other appliance used or intended to be used for making or reproducing sound recordings, performer’s performances or communication signals;

 

"premises" &laquo locaux &raquo

"premises" means, in relation to an educational institution, a place where education or training referred to in the definition "educational institution" is provided, controlled or supervised by the educational institution;

"receiving device" [Repealed, 1993, c. 44, s. 79]

 

"rights management information"
&laquo information sur le régime des droits &raquo

"rights management information" means information that

(a) is attached to or embodied in a material form of a work, a performerâs performance fixed in a sound recording or a sound recording, or appears in connection with its communication to the public by telecommunication, and

(b) identifies or permits the identification ofthe work or its author, the performance or its performer, the sound recording or its maker or any of them, or concerns the terms or conditions of its use;

NEW SECTION

"Rome Convention country" &laquo pays partie ˆ la Convention de Rome &raquo

"Rome Convention country" means a country that is a party to the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, done at Rome on October 26, 1961;

 

"sculpture" &laquo sculpture &raquo

"sculpture" includes a cast or model;

 

"sound recording" &laquo enregistrement sonore &raquo

"sound recording" means a recording, fixed in any material form, consisting of sounds, whether or not of a performance of a work, but excludes any soundtrack of a cinematographic work where it accompanies the cinematographic work;

 

"technological measure"
&laquo mesure technique &raquo

"technological measure" means any technology, device or component that, in the ordinary course of its operation, restricts the doing ÷ in respect of a material form of a work, a performerâs performance fixed in a sound recording or a sound recording ÷ of any act that is mentioned in section 3, 15 or 18 or that could constitute an infringement of any applicable moral rights;

NEW SECTION

"telecommunication" &laquotélécommunication&raquo

"telecommunication" means any transmission of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system;

 

"treaty country" &laquo pays signataire &raquo

"treaty country" means a Berne Convention country, UCC country, WCT country or WTO member;

"treaty country" means a Berne Convention country, UCC country or WTO Member;

"UCC country" &laquo pays partie ˆ la Convention universelle &raquo

"UCC country" means a country that is a party to the Universal Copyright Convention, adopted on September 6, 1952 in Geneva, Switzerland, or to that Convention as revised in Paris, France on July 24, 1971;

 

"WCT country"
&laquo pays partie au traité de lâODA &raquo

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

NEW SECTION

"work" &laquooeuvre&raquo

"work" includes the title thereof when such title is original and distinctive;

 

"work of joint authorship" &laquooeuvre créée en collaboration&raquo

"work of joint authorship" means a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors;

"work of sculpture" [Repealed, 1997, c. 24, s. 1]

 

"WPPT country"
&laquo pays partie au traité de lâOIEP &raquo

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

NEW SECTION

"WTO Member" &laquo membre de l’OMC &raquo

"WTO Member" means a Member of the World Trade Organization as defined in subsection 2(1) of the World Trade Organization Agreement Implementation Act.

R.S., 1985, c. C-42, s. 2; R.S., 1985, c. 10 (4th Supp.), s. 1; 1988, c. 65, s. 61; 1992, c. 1, s. 145(F); 1993, c. 23, s. 1, c. 44, ss. 53, 79; 1994, c. 47, s. 56; 1995, c. 1, s. 62; 1997, c. 24, s. 1.

 

Compilations

2.1 (1) A compilation containing two or more of the categories of literary, dramatic, musical or artistic works shall be deemed to be a compilation of the category making up the most substantial part of the compilation.

 

Idem

(2) The mere fact that a work is included in a compilation does not increase, decrease or otherwise affect the protection conferred by this Act in respect of the copyright in the work or the moral rights in respect of the work.

1993, c. 44, s. 54.

 

Definition of "maker"

2.11 For greater certainty, the arrangements referred to in paragraph (b) of the definition "maker" in section 2, as that term is used in section 19 and in the definition "eligible maker" in section 79, include arrangements for entering into contracts with performers, financial arrangements and technical arrangements required for the first fixation of the sounds for a sound recording.

1997, c. 24, s. 2.

 

Definition of "publication"

2.2 (1) For the purposes of this Act, "publication" means

(a) in relation to works,

(i) making copies of a work available to the public,

(ii) the construction of an architectural work, and

(iii) the incorporation of an artistic work into an architectural work, and

(b) in relation to sound recordings, making copies of a sound recording available to the public,

but does not include

(c) the performance in public, or the communication to the public by telecommunication, of a literary, dramatic, musical or artistic work or a sound recording, or

(d) the exhibition in public of an artistic work.

 

Issue of photographs and engravings

(2) For the purpose of subsection (1), the issue of photographs and engravings of sculptures and architectural works is not deemed to be publication of those works.

 

Where no consent of copyright owner

(3) For the purposes of this Act, other than in respect of infringement of copyright, a work or other subject-matter is not deemed to be published or performed in public or communicated to the public by telecommunication if that act is done without the consent of the owner of the copyright.

 

Unpublished works

(4) Where, in the case of an unpublished work, the making of the work is extended over a considerable period, the conditions of this Act conferring copyright are deemed to have been complied with if the author was, during any substantial part of that period, a subject or citizen of, or a person ordinarily resident in, a country to which this Act extends.

1997, c. 24, s. 2.

 

Telecommunication

2.3 A person who communicates a work or other subject-matter to the public by telecommunication does not by that act alone perform it in public, nor by that act alone is deemed to authorize its performance in public.

1997, c. 24, s. 2.

 

Communication to the public by telecommunication

2.4 (1) For the purposes of communication to the public by telecommunication,

(a) a person who makes a work or other subject-matter available to the public in a way that allows members of the public to access it through telecommunication from a place and at a time individually chosen by them communicates it to the public by telecommunication;

(a.1) persons who occupy apartments, hotel rooms or dwelling units situated in the same building are part of the public, and a communication intended to be received exclusively by such persons is a communication to the public;

(b) a person whose only act in respect of the communication of a work or other subject-matter to the public consists of providing the means of telecommunication necessary for another person to so communicate the work or other subject-matter does not communicate that work or other subject-matter to the public; and

(c) where a person, as part of

(i) a network, within the meaning of the Broadcasting Act, whose operations result in the communication of works or other subject-matter to the public, or

(ii) any programming undertaking whose operations result in the communication of works or other subject-matter to the public,

transmits by telecommunication a work or other subject-matter that is communicated to the public by another person who is not a retransmitter of a signal within the meaning of subsection 31(1), the transmission and communication of that work or other subject-matter by those persons constitute a single communication to the public for which those persons are jointly and severally liable.

2.4 (1) For the purposes of communication to the public by telecommunication,

(a) persons who occupy apartments, hotel rooms or dwelling units situated in the same building are part of the public, and a communication intended to be received exclusively by such persons is a communication to the public;

Regulations

(2) The Governor in Council may make regulations defining "programming undertaking" for the purpose of paragraph (1)(c).

 

Exception

(3) A work is not communicated in the manner described in paragraph (1)(c) or 3(1)(f) where a signal carrying the work is retransmitted to a person who is a retransmitter within the meaning of subsection 31(1).

1997, c. 24, s. 2; 2002, c. 26, s. 1.

 

What constitutes rental

2.5 (1) For the purposes of paragraphs 3(1)(h) and (i), 15(1)(c) and 18(1)(c), an arrangement, whatever its form, constitutes a rental of a computer program or sound recording if, and only if,

(a) it is in substance a rental, having regard to all the circumstances; and

(b) it is entered into with motive of gain in relation to the overall operations of the person who rents out the computer program or sound recording, as the case may be.

 

Motive of gain

(2) For the purpose of paragraph (1)(b), a person who rents out a computer program or sound recording with the intention of recovering no more than the costs, including overhead, associated with the rental operations does not by that act alone have a motive of gain in relation to the rental operations.

1997, c. 24, s. 2.

 

Exclusive distributor

2.6 The Governor in Council may make regulations establishing distribution criteria for the purpose of paragraph (b) of the definition "exclusive distributor" in section 2.

1997, c. 24, s. 2.

 

Exclusive licence

2.7 For the purposes of this Act, an exclusive licence is an authorization to do any act that is subject to copyright to the exclusion of all others including the copyright owner, whether the authorization is granted by the owner or an exclusive licensee claiming under the owner.

1997, c. 24, s. 2.

 
 

PART I
COPYRIGHT AND MORAL RIGHTS IN WORKS

 
 

Copyright

 

Copyright in works

3. (1) For the purposes of this Act, "copyright", in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right

(a) to produce, reproduce, perform or publish any translation of the work,

(b) in the case of a dramatic work, to convert it into a novel or other non-dramatic work,

(c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise,

(d) in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed,

(e) in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work,

(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,

(g) to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan,

(h) in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program,

(i) in the case of a musical work, to rent out a sound recording in which the work is embodied, and

(j) in respect of a tangible, material form of the work the ownership of which has never previously been transferred, to sell it or otherwise transfer ownership of it for the first time,

and to authorize any such acts.

 

PARAGRAPH (j) IS ADDED

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Simultaneous fixing

(1.1) A work that is communicated in the manner described in paragraph (1)(f) is fixed even if it is fixed simultaneously with its communication.

(1.2) to (4) [Repealed, 1997, c. 24, s. 3]

R.S., 1985, c. C-42, s. 3; R.S., 1985, c. 10 (4th Supp.), s. 2; 1988, c. 65, s. 62; 1993, c. 23, s. 2, c. 44, s. 55; 1997, c. 24, s. 3.

4. [Repealed, 1997, c. 24, s. 4]

 
 

Works in which Copyright may Subsist

 

Conditions for subsistence of copyright

5. (1) Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work if any one of the following conditions is met:

(a) in the case of any work, whether published or unpublished, including a cinematographic work, the author was, at the date of the making of the work, a citizen or subject of, or a person ordinarily resident in, a treaty country;

(b) in the case of a cinematographic work, whether published or unpublished, the maker, at the date of the making of the cinematographic work,

(i) if a corporation, had its headquarters in a treaty country, or

(ii) if a natural person, was a citizen or subject of, or a person ordinarily resident in, a treaty country; or

(c) in the case of a published work, including a cinematographic work,

(i) in relation to subparagraph 2.2(1)(a)(i), the first publication in such a quantity as to satisfy the reasonable demands of the public, having regard to the nature of the work, occurred in a treaty country, or

(ii) in relation to subparagraph 2.2(1)(a)(ii) or (iii), the first publication occurred in a treaty country.

 

Protection for older works

(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.

(1.01) For the purposes of subsection (1), a country that becomes a Berne Convention country or a WTO Member after the date of the making or publication of a work shall, as of becoming a Berne Convention country or WTO Member, as the case may be, be deemed to have been a Berne Convention country or WTO Member at the date of the making or publication of the