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Bill C-32

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INTERPRETATION

No right to equitable remuneration

32.3 For the purposes of sections 29 to 32.2, an act that does not infringe copyright does not give rise to a right to remuneration conferred by section 19.

COMPENSATION FOR ACTS DONE BEFORE RECOGNITION OF COPYRIGHT OF PERFORMERS AND BROADCASTERS

Certain rights and interests protected

32.4 (1) Notwithstanding section 27, where a person has, before the later of January 1, 1996 and the day on which a country becomes a WTO member, incurred an expenditure or liability in connection with, or in preparation for, the doing of an act that would have infringed copyright under section 26 com mencing on the later of those days, had that country been a WTO member, any right or interest of that person that

    (a) arises from or in connection with the doing of that act, and

    (b) is subsisting and valuable on the later of those days

is not prejudiced or diminished by reason only that that country has become a WTO member, except as provided by an order of the Board made under subsection 78(3).

Compensation

(2) Notwithstanding subsection (1), a per son's right or interest that is protected by that subsection terminates if and when the owner of the copyright pays that person such com pensation as is agreed to between the parties or, failing agreement, as is determined by the Board in accordance with section 78.

Limitation

(3) Nothing in subsections (1) and (2) affects any right of a performer available in law or equity.

Certain rights and interests protected

32.5 (1) Notwithstanding section 27, where a person has, before the later of the coming into force of Part II and the day on which a country becomes a Rome Convention country, incurred an expenditure or liability in connec tion with, or in preparation for, the doing of an act that would have infringed copyright under section 15 or 21 commencing on the later of those days, had Part II been in force or had that country been a Rome Convention country, any right or interest of that person that

    (a) arises from or in connection with the doing of that act, and

    (b) is subsisting and valuable on the later of those days

is not prejudiced or diminished by reason only that Part II has come into force or that the country has become a Rome Convention country, except as provided by an order of the Board made under subsection 78(3).

Compensation

(2) Notwithstanding subsection (1), a per son's right or interest that is protected by that subsection terminates if and when the owner of the copyright pays that person such com pensation as is agreed to between the parties or, failing agreement, as is determined by the Board in accordance with section 78.

Limitation

(3) Nothing in subsections (1) and (2) affects any right of a performer available in law or equity.

COMPENSATION FOR ACTS DONE BEFORE RECOGNITION OF COPYRIGHT OR MORAL RIGHTS

Certain rights and interests protected

33. (1) Notwithstanding subsections 27(1), (2) and (4) and sections 27.1, 28.1 and 28.2, where a person has, before the later of January 1, 1996 and the day on which a country becomes a treaty country, incurred an expen diture or liability in connection with, or in preparation for, the doing of an act that would have infringed a copyright owner's copyright or an author's moral rights had that country been a treaty country, any right or interest of that person that

    (a) arises from or in connection with the doing of that act, and

    (b) is subsisting and valuable on the latest of those days

is not prejudiced or diminished by reason only that that country has become a treaty country, except as provided by an order of the Board made under subsection 78(3).

Compensation

(2) Notwithstanding subsection (1), a per son's right or interest that is protected by that subsection terminates, as against the copy right owner or author, if and when that copyright owner or the author, as the case may be, pays that person such compensation as is agreed to between the parties or, failing agreement, as is determined by the Board in accordance with section 78.

PART IV

REMEDIES

R.S., c. 10 (4th Supp.), s. 8; 1993, c. 15, s. 3, c. 44, s. 65(2); 1994, c. 47, s. 62, 63

20. (1) Sections 34 to 39 of the Act are replaced by the following:

Copyright

34. (1) Where copyright has been infringed, the owner of the copyright 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 a right.

Moral rights

(2) In any proceedings for an infringement of a moral right of an author, the court may grant to the author or to the person who holds the moral rights by virtue of subsection 14.2(2) or (3), as the case may be, 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.

Costs

(3) The costs of all parties in any proceed ings in respect of the infringement of a right conferred by this Act shall be in the discretion of the court.

Summary proceedings

(4) The following proceedings may be commenced or proceeded with by way of application or action and shall, in the case of an application, be heard and determined without delay and in a summary way:

    (a) proceedings for infringement of copy right or moral rights;

    (b) proceedings taken under section 44.1, 44.2 or 44.4; and

    (c) proceedings taken in respect of

      (i) a tariff certified by the Board under Part VII or VIII, or

      (ii) agreements referred to in section 70.12.

Practice and procedure

(5) The rules of practice and procedure, in civil matters, of the court in which proceed ings are commenced by way of application apply to those proceedings, but where those rules do not provide for the proceedings to be heard and determined without delay and in a summary way, the court may give such directions as it considers necessary in order to so provide.

Actions

(6) The court in which proceedings are instituted by way of application may, where it considers it appropriate, direct that the pro ceeding be proceeded with as an action.

Meaning of ``application''

(7) In this section, ``application'' means a proceeding that is commenced other than by way of a writ or statement of claim.

Presumptions respecting copyright and ownership

34.1 (1) In any proceedings for infringe ment of copyright in which the defendant puts in issue either the existence of the copyright or the title of the plaintiff thereto,

    (a) copyright shall be presumed, unless the contrary is proved, to subsist in the work, performer's performance, sound recording or communication signal, as the case may be; and

    (b) the author, performer, maker or broad caster, as the case may be, shall, unless the contrary is proved, be presumed to be the owner of the copyright.

Where no grant registered

(2) Where any matter referred to in subsec tion (1) is at issue and no assignment of the copyright, or licence granting an interest in the copyright, has been registered under this Act,

    (a) if a name purporting to be that of

      (i) the author of the work,

      (ii) the performer of the performer's performance,

      (iii) the maker of the sound recording, or

      (iv) the broadcaster of the communica tion signal

    is printed or otherwise indicated thereon in the usual manner, the person whose name is so printed or indicated shall, unless the contrary is proved, be presumed to be the author, performer, maker or broadcaster;

    (b) if

      (i) no name is so printed or indicated, or if the name so printed or indicated is not the true name of the author, performer, maker or broadcaster or the name by which that person is commonly known, and

      (ii) a name purporting to be that of the publisher or owner of the work, perform er's performance, sound recording or communication signal is printed or other wise indicated thereon in the usual man ner,

    the person whose name is printed or indi cated as described in subparagraph (ii) shall, unless the contrary is proved, be presumed to be the owner of the copyright in question; and

    (c) if, on a cinematographic work, a name purporting to be that of the maker of the cinematographic work appears in the usual manner, the person so named shall, unless the contrary is proved, be presumed to be the maker of the cinematographic work.

Liability for infringement

35. (1) Where a person infringes copyright, the person is liable to pay such damages to the owner of the copyright as the owner has suffered due to the infringement and, in addition to those damages, such part of the profits that the infringer has made from the infringement and that were not taken into account in calculating the damages as the court considers just.

Proof of profits

(2) In proving profits,

    (a) the plaintiff shall be required to prove only receipts or revenues derived from the infringement; and

    (b) the defendant shall be required to prove every element of cost that the defendant claims.

Protection of separate rights

36. (1) Subject to this section, the owner of any copyright, or any person or persons deriving any right, title or interest by assign ment 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.

Where copyright owner to be made party

(2) Where proceedings referred to in sub section (1) are taken by a person other than the copyright owner, the copyright owner must be made a party to those proceedings, except

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

    (b) in respect 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, if the court is of the opinion that the interests of justice do not require the copyright owner to be a party.

Owner's liability for costs

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

Apportion-
ment of damages, profits

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

Concurrent jurisdiction of Federal Court

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

Recovery of possession of copies, plates

38. (1) Subject to subsection (2), the owner of the copyright in a work or other subject- matter may

    (a) recover possession of all infringing copies of that work or other subject-matter, and of all plates used or intended to be used for the production of infringing copies, and

    (b) take proceedings for seizure of those copies or plates before judgment if, under the law of Canada or of the province in which those proceedings are taken, a person is entitled to take such proceedings,

as if those copies or plates were the property of the copyright owner.

Powers of court

(2) On application by

    (a) a person from whom the copyright owner has recovered possession of copies or plates referred to in subsection (1),

    (b) a person against whom proceedings for seizure before judgment of copies or plates referred to in subsection (1) have been taken, or

    (c) any other person who has an interest in those copies or plates,

a court may order that those copies or plates be destroyed, or may make any other order that it considers appropriate in the circumstances.

Notice to interested persons

(3) Before making an order under subsec tion (2), the court shall direct that notice be given to any person who has an interest in the copies or plates in question, unless the court is of the opinion that the interests of justice do not require such notice to be given.

Circumstances court to consider

(4) In making an order under subsection (2), the court shall have regard to all the circum stances, including

    (a) the proportion, importance and value of the infringing copy or plate, as compared to the substrate or carrier embodying it; and

    (b) the extent to which the infringing copy or plate is severable from, or a distinct part of, the substrate or carrier embodying it.

Limitation

(5) Nothing in this Act entitles the copyright owner to damages in respect of the possession or conversion of the infringing copies or plates.

Statutory damages

38.1 (1) Subject to this section, a copyright owner may elect, at any time before final judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages for all infringements involved in the proceedings , with respect to any one work or other subject- matter, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $500 or more than $20,000 as the court considers just.

Where defendant unaware of infringement

(2) Where a copyright owner has made an election under subsection (1) and the defen dant 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 to less than $500, but not less than $200.

Special case

(3) Where

    (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 subsection (1) or (2) would result in a total award that, in the court's opinion, is grossly out of proportion to the infringement,

the court may award, with respect to each work or other subject-matter, such lower amount than $500 or $200, as the case may be, as the court considers just.

Collective societies

(4) Where the defendant has not paid applicable royalties, a collective society re ferred to in subsection 67(1) may only make an election under this section to recover, in lieu of any other remedy of a monetary nature provided by this Act, an award of statutory damages in a sum of not less than three and not more than ten times the amount of the applicable royalties, as the court considers just.

Factors to consider

(5) In exercising its discretion under sub sections (1) to (4), the court shall consider all relevant factors, including

    (a) the good faith or bad faith of the defendant;

    (b) the conduct of the parties before and during the proceedings; and

    (c) the need to deter other infringements of the copyright in question.

No award

(6) No statutory damages may be awarded against

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