An Act to amend the Copyright Act

C-11

(See Copyright Act with provisions of the initial version of Bill C-11 consolidated)

First Reading, September 29, 2011
View the version after royal assent

SUMMARY

This enactment amends the Copyright Act to

(a) update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards;

(b) clarify Internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright;

(c) permit businesses, educators and libraries to make greater use of copyright material in digital form;

(d) allow educators and students to make greater use of copyright material;

(e) permit certain uses of copyright material by consumers;

(f) give photographers the same rights as other creators;

(g) ensure that it remains technologically neutral; and

(h) mandate its review by Parliament every five years.

Preamble

  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:

Section 1. Short Title

This Act may be cited as the Copyright Modernization Act.

Copyright Act

Section 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:

Section 3.  

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

Section 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):

Section 5.  

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

(1.01) Protection for older works

  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) Limitation

  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) Application of subsections (1.01) and (1.02)

  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.

Section 6.  

Section 7.  

Section 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

Section 9.  

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

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

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

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

Section 10.  

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

Section 11.  

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

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

(2) Conditions for copyright

  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):

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

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

Section 12.  

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

(1) Right to remuneration – Canada

  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) Right to remuneration – Rome Convention country

  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 any retransmission.

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

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

(2) Royalties

  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

Section 13.  

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

Section 14.  

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

Section 15.  

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

(1) Conditions – Canada

  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) Conditions – Rome Convention country

  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):

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

(2) Exception – Rome Convention country

  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):

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

(3) Exception

  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.

Section 16.  

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

(1) Reciprocity

  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) Reciprocity

  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

Section 17.  

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

(1) Term of copyright – performer’s performance

  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) Term of copyright – sound recording

  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) Term of copyright – communication signal

  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) Term of right to remuneration

  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) Application of subsections (1) to (2)

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

Section 18.  

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

Section 19.  

Section 28.1 of the Act is replaced by the following:

Section 28.1 Infringement generally

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 performance is, in the absence of the author’s or performer’s consent, an infringement of those rights.

Section 20.  

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

(1) Nature of right of integrity

  The author’s or performer’s right to the integrity of a work or performer’s performance is infringed only if the work or the performance is, to the prejudice of its author’s or performer’s honour or reputation,

Section 21.  

Section 29 of the Act is replaced by the following:

Section 29. Research, private study, etc.

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

Section 22.  

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

Section 23.  

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

(1) Reproduction for instruction

  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) If work commercially available

  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.

Section 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:

Section 25.  

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

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

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

Section 26.  

Section 27.  

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

Section 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;

Section 29.  

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

(4) Conditions

  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) Patrons of other libraries, etc.

  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) Deeming

  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) Limitation regarding copies in digital form

  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.

Section 30.  

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

(1) Copying works deposited in archive

  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) Conditions for copying of works

  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) Condition for providing copy

  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) Regulations

  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.

Section 31.  

Section 30.6 of the Act is replaced by the following:

Section 30.6 Permitted acts

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.

Section 30.61 Interoperability of computer programs

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 for the sole purpose of obtaining information that would allow the person to make the program and any other computer program interoperable.

Section 30.62 Encryption Research

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.

Section 30.63 Security

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.

Section 32.  

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

Section 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.

Section 34.  

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

(1) Ephemeral recordings – broadcasting undertaking

  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) Destruction

  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.

Section 35.  

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

Section 36.  

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

(1) Reproduction in alternate format

  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

Section 37.  

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

Section 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.

Section 39.  

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

Section 40.  

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

(1) Certain rights and interests protected

  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.

Section 41.  

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

Section 42.  

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

Section 43.  

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

(2) Moral rights

  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.

Section 44.  

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

(1) Presumptions respecting copyright and ownership

  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,

Section 45.  

Section 46.  

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

(1) Statutory damages

  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) Infringements not involved in the proceedings

  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) No other statutory damages

  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 defendant unaware of infringement

  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) Special case

  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) there is more than one work or other subject-matter in a single medium; and

(b) the awarding of even the minimum amount referred to in 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):

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

Section 47.  

Section 41 of the Act is replaced by the following:

Technological Protection Measures and Rights Management Information

Section 41. Definitions

The following definitions apply in this section and in sections 41.1 to 41.21.

“circumvent” means,

(a) in respect of a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure”, to descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological protection measure, unless it is done with the authority of the copyright owner; and

(b) in respect of a technological protection measure within the meaning of paragraph (b) of the definition “technological protection measure”, to avoid, bypass, remove, deactivate or impair the technological protection measure.

“technological protection measure” means any effective technology, device or component that, in the ordinary course of its operation,

(a) controls access to a work, to a performer’s performance fixed in a sound recording or to a sound recording and whose use is authorized by the copyright owner; or

(b) restricts the doing – with respect to a work, to a performer’s performance fixed in a sound recording or to a sound recording – of any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19.

Section 41.1  

(1) Prohibition

  No person shall

(a) circumvent a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure” in section 41;

(b) offer services to the public or provide services if

(i) the services are offered or provided primarily for the purposes of circumventing a technological protection measure,

(ii) the uses or purposes of those services are not commercially significant other than when they are offered or provided for the purposes of circumventing a technological protection measure, or

(iii) the person markets those services as being for the purposes of circumventing a technological protection measure or acts in concert with another person in order to market those services as being for those purposes; or

(c) manufacture, import, distribute, offer for sale or rental or provide – including by selling or renting – any technology, device or component if

(i) the technology, device or component is designed or produced primarily for the purposes of circumventing a technological protection measure,

(ii) the uses or purposes of the technology, device or component are not commercially significant other than when it is used for the purposes of circumventing a technological protection measure, or

(iii) the person markets the technology, device or component as being for the purposes of circumventing a technological protection measure or acts in concert with another person in order to market the technology, device or component as being for those purposes.

(2) Circumvention of technological protection measure

  The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording in respect of which paragraph (1)(a) has been contravened is, subject to this Act and any regulations made under section 41.21, entitled to all remedies – by way of injunction, damages, accounts, delivery up and otherwise – that are or may be conferred by law for the infringement of copyright against the person who contravened that paragraph.

(3) No statutory damages

  The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording in respect of which paragraph (1)(a) has been contravened may not elect under section 38.1 to recover statutory damages from an individual who contravened that paragraph only for his or her own private purposes.

(4) Services, technology, device or component

  Every owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording in respect of which a technological protection measure has been or could be circumvented as a result of the contravention of paragraph (1)(b) or (c) is, subject to this Act and any regulations made under section 41.21, entitled to all remedies – by way of injunction, damages, accounts, delivery up and otherwise – that are or may be conferred by law for the infringement of copyright against the person who contravened paragraph (1)(b) or (c).

Section 41.11  

(1) Law enforcement and national security

  Paragraph 41.1(1)(a) does not apply if a technological protection measure is circumvented for the purposes of an investigation related to the enforcement of any Act of Parliament or any Act of the legislature of a province, or for the purposes of activities related to the protection of national security.

(2) Services

  Paragraph 41.1(1)(b) does not apply if the services are provided by or for the persons responsible for carrying out such an investigation or such activities.

(3) Technology, device or component

  Paragraph 41.1(1)(c) does not apply if the technology, device or component is manufactured, imported or provided by the persons responsible for carrying out such an investigation or such activities, or is manufactured, imported, provided or offered for sale or rental as a service provided to those persons.

Section 41.12  

(1) Interoperability of computer programs

  Paragraph 41.1(1)(a) does not apply to a person who owns a computer program or a copy of one, or has a licence to use the program or copy, and who circumvents a technological protection measure that protects that program or copy for the sole purpose of obtaining information that would allow the person to make the program and any other computer program interoperable.

(2) Services

  Paragraph 41.1(1)(b) does not apply to a person who offers services to the public or provides services for the purposes of circumventing a technological protection measure if the person does so for the purpose of making the computer program and any other computer program interoperable.

(3) Technology, device or component

  Paragraph 41.1(1)(c) does not apply to a person who manufactures, imports or provides a technology, device or component for the purposes of circumventing a technological protection measure if the person does so for the purpose of making the computer program and any other computer program interoperable and

(a) uses that technology, device or component only for that purpose; or

(b) provides that technology, device or component to another person only for that purpose.

(4) Sharing of information

  A person referred to in subsection (1) may communicate the information obtained under that subsection to another person for the purposes of allowing that person to make the computer program and any other computer program interoperable.

(5) Limitation

  A person to whom the technology, device or component referred to in subsection (3) is provided or to whom the information referred to in subsection (4) is communicated may use it only for the purpose of making the computer program and any other computer program interoperable.

(6) Non-application

  However, a person is not entitled to benefit from the exceptions under subsections (1) to (3) or (5) if, for the purposes of making the computer program and any other computer program interoperable, the person does an act that constitutes an infringement of copyright.

(7) Non-application

  Furthermore, a person is not entitled to benefit from the exception under subsection (4) if, for the purposes of making the computer program and any other computer program interoperable, the person does an act that constitutes an infringement of copyright or an act that contravenes any Act of Parliament or any Act of the legislature of a province.

Section 41.13  

(1) Encryption research

  Paragraph 41.1(1)(a) does not apply to a person who, for the purposes of encryption research, circumvents a technolog-ical protection measure by means of decryption if

(a) it would not be practical to carry out the research without circumventing the technological protection measure;

(b) the person has lawfully obtained the work, the performer’s performance fixed in a sound recording or the sound recording that is protected by the technological protection measure; and

(c) the person has informed the owner of the copyright in the work, the performer’s performance fixed in a sound recording or the sound recording who has applied the technological protection measure.

(2) Non-application

  However, a person acting in the circumstances referred to in subsection (1) is not entitled to benefit from the exception under that subsection if the person does an act that constitutes an infringement of copyright or an act that contravenes any Act of Parliament or any Act of the legislature of a province.

(3) Technology, device or component

  Paragraph 41.1(1)(c) does not apply to a person referred to in subsection (1) who manufactures a technology, device or component for the purposes of circumventing a technological protection measure that is subject to paragraph 41.1(1)(a) if the person does so for the purpose of encryption research and

(a) uses that technology, device or component only for that purpose; or

(b) provides that technology, device or component only for that purpose to another person who is collaborating with the person.

Section 41.14  

(1) Personal information

  Paragraph 41.1(1)(a) does not apply to a person who circumvents a technological protection measure if

(a) the work, performer’s performance fixed in a sound recording or sound recording that is protected by the technological protection measure is not accompanied by a notice indicating that its use will permit a third party to collect and communicate personal information relating to the user or, in the case where it is accompanied by such a notice, the user is not provided with the option to prevent the collection and communication of personal information without the user’s use of it being restricted; and

(b) the only purpose of circumventing the technological protection measure is to verify whether it permits the collection or communication of personal information and, if it does, to prevent it.

(2) Services, technology, device or component

  Paragraphs 41.1(1)(b) and (c) do not apply to a person who offers services to the public or provides services, or manufactures, imports or provides a technology, device or component, for the purposes of circumventing a technological protection measure in accordance with subsection (1), to the extent that the services, technology, device or component do not unduly impair the technological protection measure.

Section 41.15  

(1) Security

  Paragraph 41.1(1)(a) does not apply to a person who circumvents a technological protection measure that is subject to that paragraph for the sole purpose of, with the consent of the owner or administrator of a computer, computer system or computer network, assessing the vulnerability of the computer, system or network or correcting any security flaws.

(2) Services

  Paragraph 41.1(1)(b) does not apply if the services are provided to a person described in subsection (1).

(3) Technology, device or component

  Paragraph 41.1(1)(c) does not apply if the technology, device or component is manufactured or imported by a person described in subsection (1), or is manufactured, imported, provided – including by selling or renting – offered for sale or rental or distributed as a service provided to that person.

(4) Non-application

  A person acting in the circumstances referred to in subsection (1) is not entitled to benefit from the exception under that subsection if the person does an act that constitutes an infringement of copyright or an act that contravenes any Act of Parliament or any Act of the legislature of a province.

Section 41.16  

(1) Persons with perceptual disabilities

  Paragraph 41.1(1)(a) does not apply to a person with a perceptual disability, another person acting at their request or a non-profit organization acting for their benefit if that person or organization circumvents a technological protection measure for the sole purpose of making a work, a performer’s performance fixed in a sound recording or a sound recording perceptible to the person with a perceptual disability.

(2) Services, technology, device or component

  Paragraphs 41.1(1)(b) and (c) do not apply to a person who offers or provides services to persons or organizations referred to in subsection (1), or manufactures, imports or provides a technology, device or component, for the purposes of enabling those persons or organizations to circumvent a technological protection measure in accordance with that subsection, to the extent that the services, technology, device or component do not unduly impair the technological protection measure.

Section 41.17 Broadcasting undertakings

Paragraph 41.1(1)(a) does not apply to a broadcasting undertaking that circumvents a technological protection measure for the sole purpose of making an ephemeral reproduction of a work, a performer’s performance fixed in a sound recording or a sound recording in accordance with section 30.9, unless the owner of the copyright in the work, the performer’s performance fixed in a sound recording or the sound recording that is protected by the technological protection measure makes available the necessary means to enable the making of such a reproduction in a timely manner in light of the broadcasting undertaking’s business requirements.

Section 41.18  

(1) Radio apparatus

  Paragraph 41.1(1)(a) does not apply to a person who circumvents a technological protection measure on a radio apparatus for the sole purpose of gaining access to a telecommunications service by means of the radio apparatus.

(2) Services or technology, device or component

  Paragraphs 41.1(1)(b) and (c) do not apply to a person who offers the services to the public or provides the services, or manufactures, imports or provides the technology, device or component, for the sole purpose of facilitating access to a telecommunications service by means of a radio apparatus.

(3) Definitions

  The following definitions apply in this section.

“radio apparatus” has the same meaning as in section 2 of the Radiocommunication Act.

“telecommunications service” has the same meaning as in subsection 2(1) of the Telecommunications Act.

Section 41.19 Reduction of damages

A court may reduce or remit the amount of damages it awards in the circumstances described in subsection 41.1(1) if the defendant satisfies the court that the defendant was not aware, and had no reasonable grounds to believe, that the defendant’s acts constituted a contravention of that subsection.

Section 41.2 Injunction only remedy

If a court finds that a defendant that is a library, archive or museum or an educational institution has contravened subsection 41.1(1) and the defendant satisfies the court that it was not aware, and had no reasonable grounds to believe, that its actions constituted a contravention of that subsection, the plaintiff is not entitled to any remedy other than an injunction.

Section 41.21  

(1) Regulations

  The Governor in Council may make regulations excluding from the application of section 41.1 any technological protection measure that protects a work, a performer’s performance fixed in a sound recording or a sound recording, or classes of them, or any class of such technological protection measures, if the Governor in Council considers that the application of that section to the technological protection measure or class of technological protection measures would unduly restrict competition in the aftermarket sector in which the technological protection measure is used.

(2) Regulations

  The Governor in Council may make regulations

(a) prescribing additional circumstances in which paragraph 41.1(1)(a) does not apply, having regard to the following factors:

(i) whether not being permitted to circumvent a technological protection measure that is subject to that paragraph could adversely affect the use a person may make of a work, a performer’s performance fixed in a sound recording or a sound recording when that use is authorized,

(ii) whether the work, the performer’s performance fixed in a sound recording or the sound recording is commercially available,

(iii) whether not being permitted to circumvent a technological protection measure that is subject to that paragraph could adversely affect criticism, review, news reporting, commentary, parody, satire, teaching, scholarship or research that could be made or done in respect of the work, the performer’s performance fixed in a sound recording or the sound recording,

(iv) whether being permitted to circumvent a technological protection measure that is subject to that paragraph could adversely affect the market for the work, the performer’s performance fixed in a sound recording or the sound recording or its market value,

(v) whether the work, the performer’s performance fixed in a sound recording or the sound recording is commercially available in a medium and in a quality that is appropriate for non-profit archival, preservation or educational uses, and

(vi) any other relevant factor; and

(b) requiring the owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording that is protected by a technological protection measure to provide access to the work, performer’s performance fixed in a sound recording or sound recording to persons who are entitled to the benefit of any of the limitations on the application of paragraph 41.1(1)(a) prescribed under paragraph (a). The regulations may prescribe the manner in which, and the time within which, access is to be provided, as well as any conditions that the owner of the copyright is to comply with.

Section 41.22  

(1) Prohibition – rights management information

  No person shall knowingly remove or alter any rights management information in electronic form without the consent of the owner of the copyright in the work, the performer’s performance or the sound recording, if the person knows or should have known that the removal or alteration will facilitate or conceal any infringement of the owner’s copyright or adversely affect the owner’s right to remuneration under section 19.

(2) Removal or alteration of rights management information

  The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording is, subject to this Act, entitled to all remedies – by way of injunction, damages, accounts, delivery up and otherwise – that are or may be conferred by law for the infringement of copyright against a person who contravenes subsection (1).

(3) Subsequent acts

  The copyright owner referred to in subsection (2) has the same remedies against a person who, without the owner’s consent, knowingly does any of the following acts with respect to any material form of the work, the performer’s performance fixed in a sound recording or the sound recording and knows or should have known that the rights management information has been removed or altered in a way that would give rise to a remedy under that subsection:

(a) sells it or rents it out;

(b) distributes it to an extent that the copyright owner is prejudicially affected;

(c) by way of trade, distributes it, exposes or offers it for sale or rental or exhibits it in public;

(d) imports it into Canada for the purpose of doing anything referred to in any of paragraphs (a) to (c); or

(e) communicates it to the public by telecommunication.

(4) Definition of “rights management information”

  In this section, “rights management information” means information that

(a) is attached to or embodied in a copy of a work, a performer’s 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 of the work or its author, the performance or its performer, the sound recording or its maker or the holder of any rights in the work, the performance or the sound recording, or concerns the terms or conditions of the work’s, performance’s or sound recording’s use.

General Provisions

Section 41.23  

(1) Protection of separate rights

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

(2) Copyright owner to be made party

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

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

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

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

(3) Owner’s liability for costs

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

(4) Apportionment of damages, profits

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

Section 41.24 Concurrent jurisdiction of Federal Court

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

Provisions Respecting Providers of Network Services or Information Location Tools

Section 41.25  

(1) Notice of claimed infringement

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

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

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

(c) an information location tool as defined in subsection 41.27(5).

(2) Form and content of notice

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

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

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

(c) state the claimant’s interest or right with respect to the copyright in the work or other subject-matter;

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

(e) specify the infringement that is claimed;

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

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

Section 41.26  

(1) Obligations related to notice

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

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

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

(2) Fees related to notices

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

(3) Damages related to notices

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

(4) Regulations – change of amounts

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

Section 41.27  

(1) Injunctive relief only – providers of information location tools

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

(2) Conditions for application

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

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

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

(c) does not modify the reproduction, other than for technical reasons;

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

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

(3) Limitation

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

(4) Exception

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

(5) Meaning of “information location tool”

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

Section 48.  

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

Section 49.  

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

Section 50.  

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

(1) Execution of instruments

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

Section 51.  

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

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

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

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

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

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

Section 52.  

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

(4) Prohibition of enforcement

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

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

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

(c) the recovery of royalties referred to in section 19.

Section 53.  

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

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

Section 54.  

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

(2) Proceedings barred if royalties tendered or paid

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

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

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

(c) the recovery of royalties referred to in section 19.

Section 55.  

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

(1) Filing of proposed tariffs

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

Section 56.  

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

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

Section 57.  

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

(1) Board may determine compensation

  Subject to subsection (2), for the purposes of subsections 32.4(2), 32.5(2), 33(2), 33.1(2) and 33.2(2), the Board may, on application by any of the parties referred to in one of those provisions, determine the amount of the compensation referred to in that provision that the Board considers reasonable, having regard to all the circumstances, including any judgment of a court in an action between the parties for the enforcement of a right mentioned in subsection 32.4(3) or 32.5(3).

Section 58.  

Section 92 of the Act is replaced by the following:

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

TRANSITIONAL PROVISIONS

Section 59.  

(1) No revival of copyright in photograph

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

(2) Cases where corporations were deemed to be authors

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

(3) Cases where individuals were deemed to be authors

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

Section 60. Engraving, photograph or portrait

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

Section 61. No revival of copyright

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

Section 62.  

(1) Limitation or prescription period

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

(2) Former limitation or prescription period continued

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

COMING INTO FORCE

Section 63. Order in council

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

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