Bill C-32

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	OWNERS WHO CANNOT BE LOCATED
Circumstan- ces in which licence may be issued by Board	77. (1) Where, on application to the Board by a person who wishes to obtain a licence to use
	(a) a published work,
	(b) a fixation of a performer's performance,
	(c) a published sound recording, or
	(d) a fixation of a communication signal
	in which copyright subsists, the Board is satisfied that the applicant has made reasonable efforts to locate the owner of the copyright and that the owner cannot be located, the Board may issue to the applicant a licence to do an act mentioned in section 3, 15, 18 or 21, as the case may be.
Conditions of licence	(2) A licence issued under subsection (1) is non-exclusive and is subject to such terms and conditions as the Board may establish.
Payment to owner	(3) The owner of a copyright may, not later than five years after the expiration of a licence issued pursuant to subsection (1) in respect of the copyright, collect the royalties fixed in the licence or, in default of their payment, commence an action to recover them in a court of competent jurisdiction.
Regulations	(4) The Copyright Board may make regulations governing the issuance of licences under subsection (1).
	COMPENSATION FOR ACTS DONE BEFORE RECOGNITION OF COPYRIGHT OR MORAL RIGHTS
Board may determine compensation	78. (1) Subject to subsection (2), for the purposes of subsections 32.4(2), 32.5(2) and 33(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).
Limitation	(2) The Board shall not
	(a) proceed with an application under subsection (1) where a notice is filed with the Board that an agreement regarding the matters in issue has been reached; or
	(b) where a court action between the parties for enforcement of a right referred to in subsection 32.4(3) or 32.5(3), as the case may be, has been commenced, continue with an application under subsection (1) until the court action is finally concluded.
Interim orders	(3) Where the Board proceeds with an application under subsection (1), it may, for the purpose of avoiding serious prejudice to any party, make an interim order requiring a party to refrain from doing any act described in the order until the determination of compensation is made under subsection (1).
	PART VIII
	PRIVATE COPYING
	Interpretation
Definitions	79. In this Part,
``audio recording medium'' « support audio »	``audio recording medium'' means a recording medium, regardless of its material form, onto which a sound recording may be reproduced and that is of a kind ordinarily used by individual consumers for that purpose, excluding any prescribed kind of recording medium;
``blank audio recording medium'' « support audio vierge »	``blank audio recording medium'' means
	(a) an audio recording medium onto which no sounds have ever been fixed, and
	(b) any other prescribed audio recording medium;
``collecting body'' « organisme de perception »	``collecting body'' means the collective society, or other society, association or corporation, that is designated as the collecting body under subsection 83(8);
``eligible author'' « auteur admissible »	``eligible author'' means an author of a musical work, whether created before or after the coming into force of this Part, that is embodied in a sound recording, whether made before or after the coming into force of this Part, if copyright subsists in Canada in that musical work;
``eligible maker'' « producteur admissible »	``eligible maker'' means a maker of a sound recording that embodies a musical work, whether the first fixation of the sound recording occurred before or after the coming into force of this Part, if
	(a) both the following two conditions are met:
	(i) the maker, at the date of that first fixation, if a corporation, had its headquarters in Canada or, if a natural person, was a Canadian citizen or permanent resident of Canada within the meaning of the Immigration Act, and
	(ii) copyright subsists in Canada in the sound recording, or
	(b) the maker, at the date of that first fixation, if a corporation, had its headquarters in a country referred to in a statement published under section 85 or, if a natural person, was a citizen, subject or permanent resident of such a country;
``eligible performer'' « artiste- interprète admissible »	``eligible performer'' means the performer of a performer's performance of a musical work, whether it took place before or after the coming into force of this Part, if the performer's performance is embodied in a sound recording and
	(a) both the following two conditions are met:
	(i) the performer was, at the date of the first fixation of the sound recording, a Canadian citizen or permanent resident of Canada within the meaning of the Immigration Act, and
	(ii) copyright subsists in Canada in the performer's performance, or
	(b) the performer was, at the date of the first fixation of the sound recording, a citizen, subject or permanent resident of a country referred to in a statement published under section 85;
``prescribed'' Version anglaise seulement	``prescribed'' means prescribed by regulations made under this Part.
	Copying for Private Use
Where no infringement of copyright	80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of
	(a) a musical work embodied in a sound recording,
	(b) a performer's performance of a musical work embodied in a sound recording, or
	(c) a sound recording in which a musical work, or a performer's performance of a musical work, is embodied
	onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer's performance or the sound recording.
Limitation	(2) Subsection (1) does not apply if the act described in that subsection is done for the purpose of doing any of the following in relation to any of the things referred to in paragraphs (1)(a) to (c):
	(a) selling or renting out, or by way of trade exposing or offering for sale or rental;
	(b) distributing, whether or not for the purpose of trade;
	(c) communicating to the public by telecommunication; or
	(d) performing, or causing to be performed, in public.
	Right of Remuneration
Right of remuneration	81. (1) Subject to and in accordance with this Part, eligible authors, eligible performers and eligible makers have a right to receive remuneration from manufacturers and importers of blank audio recording media in respect of the reproduction for private use of
	(a) a musical work embodied in a sound recording;
	(b) a performer's performance of a musical work embodied in a sound recording; or
	(c) a sound recording in which a musical work, or a performer's performance of a musical work, is embodied.
Assignment of rights	(2) Subsections 13(4) to (7) apply, with such modifications as the circumstances require, in respect of the rights conferred by subsection (1) on eligible authors, performers and makers.
	Levy on Blank Audio Recording Media
Liability to pay levy	82. (1) Every person who, for the purpose of trade, manufactures a blank audio recording medium in Canada or imports a blank audio recording medium into Canada
	(a) is liable, subject to subsection (2) and section 86, to pay a levy to the collecting body on selling or otherwise disposing of those blank audio recording media in Canada; and
	(b) shall, in accordance with subsection 83(8), keep statements of account of the activities referred to in paragraph (a), as well as of exports of those blank audio recording media, and shall furnish those statements to the collecting body.
No levy for exports	(2) No levy is payable where it is a term of the sale or other disposition of the blank audio recording medium that the medium is to be exported from Canada, and it is exported from Canada.
Filing of proposed tariffs	83. (1) Subject to subsection (14), each collective society may file with the Board a proposed tariff for the benefit of those eligible authors, eligible performers and eligible makers who, by assignment, grant of licence, appointment of the society as their agent or otherwise, authorize it to act on their behalf for that purpose, but no person other than a collective society may file any such tariff.
Collecting body	(2) Without limiting the generality of what may be included in a proposed tariff, the tariff may include a suggestion as to whom the Board should designate under paragraph (8)(d) as the collecting body.
Times for filing	(3) Proposed tariffs must be in both official languages and must be filed on or before the March 31 immediately before the date when the approved tariffs cease to be effective.
Where no previous tariff	(4) A collective society in respect of which no proposed tariff has been certified pursuant to paragraph (8)(c) shall file its proposed tariff on or before the March 31 immediately before its proposed effective date.
Effective period of levies	(5) A proposed tariff must provide that the levies are to be effective for periods of one or more calendar years.
Publication of proposed tariffs	(6) As soon as practicable after the receipt of a proposed tariff filed pursuant to subsection (1), the Board shall publish it in the Canada Gazette and shall give notice that, within sixty days after the publication of the tariff, any person may file written objections to the tariff with the Board.
Board to consider proposed tariffs and objections	(7) The Board shall, as soon as practicable, consider a proposed tariff and any objections thereto referred to in subsection (6) or raised by the Board, and
	(a) send to the collective society concerned a copy of the objections so as to permit it to reply; and
	(b) send to the persons who filed the objections a copy of any reply thereto.
Duties of Board	(8) On the conclusion of its consideration of the proposed tariff, the Board shall
	(a) establish, in accordance with subsection (9),
	(i) the manner of determining the levies, and
	(ii) such terms and conditions related to those levies as the Board considers appropriate, including, without limiting the generality of the foregoing, the form, content and frequency of the statements of account mentioned in subsection 82(1), measures for the protection of confidential information contained in those statements, and the times at which the levies are payable,
	(b) vary the tariff accordingly,
	(c) certify the tariff as the approved tariff, whereupon that tariff becomes for the purposes of this Part the approved tariff, and
	(d) designate as the collecting body the collective society or other society, association or corporation that, in the Board's opinion, will best fulfil the objects of sections 82, 84 and 86,
	but the Board is not obligated to exercise its power under paragraph (d) if it has previously done so, and a designation under that paragraph remains in effect until the Board makes another designation, which it may do at any time whatsoever, on application.
Factors Board to consider	(9) In exercising its power under paragraph (8)(a), the Board shall satisfy itself that the levies are fair and equitable, having regard to any prescribed criteria.
Publication of approved tariffs	(10) The Board shall publish the approved tariffs in the Canada Gazette as soon as practicable and shall send a copy of each approved tariff, together with the reasons for the Board's decision, to the collecting body, to each collective society that filed a proposed tariff, and to any person who filed an objection.
Authors, etc., not represented by collective society	(11) An eligible author, eligible performer or eligible maker who does not authorize a collective society to file a proposed tariff under subsection (1) is entitled, in relation to
	(a) a musical work,
	(b) a performer's performance of a musical work, or
	(c) a sound recording in which a musical work, or a performer's performance of a musical work, is embodied,
	as the case may be, to be paid by the collective society that is designated by the Board, of the Board's own motion or on application, the remuneration referred to in section 81 if such remuneration is payable during a period when an approved tariff that is applicable to that kind of work, performer's performance or sound recording is effective, subject to the same conditions as those to which a person who has so authorized that collective society is subject.
Exclusion of other remedies	(12) The entitlement referred to in subsection (11) is the only remedy of the eligible author, eligible performer or eligible maker referred to in that subsection in respect of the reproducing of sound recordings for private use.
Powers of Board	(13) The Board may, for the purposes of subsections (11) and (12),
	(a) require a collective society to file with the Board information relating to payments of moneys received by the society pursuant to section 84 to the persons who have authorized it to file a tariff under subsection (1); and
	(b) by regulation, establish the periods, which shall not be less than twelve months, beginning when the applicable approved tariff ceases to be effective, within which the entitlement referred to in subsection (11) must be exercised.
Single proposed tariff	(14) Where all the collective societies that intend to file a proposed tariff authorize a particular person or body to file a single proposed tariff on their behalf, that person or body may do so, and in that case this section applies, with such modifications as the circumstances require, in respect of that proposed tariff.