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Bill C-57

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First publication

(1.1) The first publication described in subparagraph (1)(c)(i) or (ii) shall be deemed to have occurred within Her Majesty's Realms and Territories or in a treaty country notwithstanding that it in fact occurred previously elsewhere, if the interval between those two publications did not exceed thirty days or such longer period as may be fixed by order in council.

1993, c. 15, s. 2, c. 44, s. 57(1)

(2) Subsections 5(2) and (2.1) of the Act are replaced by the following:

Minister may extend copyright to other countries

(2) Where the Minister certifies by notice, published in the Canada Gazette, that any country that is not a treaty country grants or has undertaken to grant, either by treaty, convention, agreement or law, to citizens of Canada, the benefit of copyright on substantially the same basis as to its own citizens or copyright protection substantially equal to that conferred by this Act, the country shall, for the purpose of the rights conferred by this Act, be treated as if it were a country to which this Act extends, and the Minister may give a certificate, notwithstanding that the remedies for enforcing the rights, or the restrictions on the importation of copies of works, under the law of such country, differ from those in this Act.

1993, c. 44, s. 57(2)

(3) Subsection 5(7) of the Act is replaced by the following:

Reciprocity protection preserved

(7) For greater certainty, the protection to which a work is entitled by virtue of a notice published under subsection (2), or under that subsection as it read at any time before the coming into force of this subsection, is not affected by reason only of the country in question becoming a treaty country.

58. The Act is amended by adding the following after section 14:

PERFORMERS' RIGHTS

Performer's rights (post-WTO performances)

14.01 (1) Where a performer's performance takes place in a country that is a WTO Member, on or after the later of the day on which this section comes into force and the day on which that country becomes a WTO Member, the performer has the sole right

    (a) to fix the performer's performance, or any substantial part thereof, by means of a record, perforated roll or other contrivance by means of which sounds may be mechanically reproduced,

    (b) to reproduce

      (i) the fixation described in paragraph (a), or any substantial part thereof, and

      (ii) any reproduction of that fixation, or any substantial part of such reproduction,

    where that fixation was made without the performer's consent, and

    (c) to communicate the performer's performance, or any substantial part thereof, to the public by telecommunication at the time of the performer's performance,

and to authorize any such acts.

Interpretation

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

Restriction

(3) For the purpose of paragraph (1)(c), a person whose only act in respect of the communication of a performer's performance to the public consists of providing the means of telecommunication necessary for another person to so communicate the performer's performance does not communicate that performer's performance to the public.

Performer's rights (pre-WTO performances)

(4) Where a performer's performance took place in a country before the later of the day on which this section comes into force and the day on which that country becomes a WTO Member, the performer has, commencing on the later of those two days, the sole right described in paragraph (1)(b) and the sole right to authorize any such act.

Term of performer's rights

(5) The rights conferred by this section subsist for the remainder of the calendar year in which the performer's performance takes place and a period of fifty years following the end of that calendar year.

Assignment of right by performer

(6) Subsections 13(4) and 14(3) apply in respect of a performer's right conferred by this Act, in the same way that they apply in respect of assignment of copyright and grants of interests in copyright by licence.

Limitation

(7) No assignment of a performer's right conferred by this Act, and no grant of an interest in such a right by licence, affects the right of the performer

    (a) to prevent the reproduction of

      (i) any fixation of the performer's performance, or any reproduction of such a fixation, and

      (ii) any substantial part of such a fixation or reproduction,

    where the fixation was made without the performer's consent; and

    (b) to prevent the importation into Canada, for sale or hire, of any fixation of the performer's performance, or any reproduction of such a fixation, that to the knowledge of the importer was made without the performer's consent.

R.S., c. 10 (4th Supp.), s. 17(F); 1993, c. 44, ss. 62, 63

59. The heading before section 16 and sections 16 to 26 of the Act are repealed.

60. The Act is amended by adding the following after section 28.01:

INFRINGEMENT OF PERFORMERS' RIGHTS

Infringement of performer's right

28.02 (1) A performer's right in a performer's performance shall be deemed to be infringed by any person who, without the consent of the owner of the performer's right, does anything that, by virtue of section 14.01, only the performer has the right to do.

Acts not constituting infringement

(2) The following acts do not constitute an infringement of a performer's right in a performer's performance:

    (a) any fair dealing with the performer's performance, a fixation thereof or a reproduction of the fixation, for the purposes of private study, research, criticism, review or newspaper summary;

    (b) the making of a temporary fixation of the performer's performance for the purpose of doing an act permitted by paragraph 27(2)(e);

    (c) reproducing a fixation of the performer's performance for the purpose of doing an act permitted by paragraph 27(2)(h), (i), (j) or (k); and

    (d) the retransmission of the performer's performance where, by virtue of subsection 28.01(2), the retransmission is not an infringement of copyright.

Infringement by personal action

(3) A performer's right in a performer's performance shall be deemed to be infringed by any person who

    (a) sells or lets for hire, or by way of trade exposes or offers for sale or hire,

    (b) distributes, either for the purposes of trade or to such an extent as to affect prejudicially the owner of the performer's right,

    (c) by way of trade exhibits in public, or

    (d) imports for sale or hire into Canada,

any fixation of the performer's performance, or any reproduction of such a fixation, that to the knowledge of that person infringes the performer's right.

Certain rights and interests protected

28.03 (1) Notwithstanding subsections 28.02(1) and (3), where a person has, before the later of the day on which this section comes into force 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 a performer's right under this Act commencing on the later of those two 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 two 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 70.8(3).

Compensation

(2) Notwithstanding subsection (1), a person's right or interest that is protected by that subsection terminates if and when the owner of the performer's right 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 70.8.

Limitation

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

61. The Act is amended by adding the following after section 28.2:

COMPENSATION FOR RESTORATION OF COPYRIGHT OR MORAL RIGHTS

Certain rights and interests protected

29. (1) Notwithstanding subsections 27(1), (4) and (5) and sections 28.1 and 28.2, where a person has, before a country becomes a treaty country, incurred an expenditure or liability in connection with, or in preparation for, the doing of an act that would have infringed the copyright owner's copyright or the 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 at the time when that country becomes a treaty country

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 70.8(3).

Compensation

(2) Notwithstanding subsection (1), a person's right or interest that is protected by that subsection terminates, as against the copyright owner or the author, if and when the 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 70.8.

62. Section 34 of the Act is amended by adding the following after subsection (1):

Performers' rights

(1.01) In any proceedings for an infringement of a performer's right, the court may, subject to subsection (1.02), grant to the owner of the performer's right all remedies by way of injunction, damages, accounts or delivery up and otherwise that are or may be conferred by law for the infringement of a right.

Limitation

(1.02) Where a performer has assigned to any extent a performer's right, or has granted an interest in a performer's right by licence, and subsequently institutes proceedings described in paragraph 14.01(7)(a) or (b), the court may not grant to the performer, in relation to the right assigned or interest granted, any remedy otherwise than by way of injunction or delivery up.

Other parties may be joined

(1.03) In any proceedings for an infringement of a performer's right, the court may, on application by the performer, an assignee of the performer's right, a person to whom an interest in the performer's right has been granted by licence, or the defendant, order such other parties to be joined in the proceedings as the court considers necessary.

63. Section 36 of the Act is renumbered as subsection 36(1) and is amended by adding the following:

Protection of separate rights

(2) Subsection (1) applies in respect of a performer and in respect of the owner of a performer's right conferred by this Act, in the same way that that subsection applies in respect of the persons described therein.

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

Offences and punishment

43.1 (1) Every person who knowingly

    (a) makes for sale or hire any infringing fixation, or infringing reproduction thereof, of a performer's performance in respect of which a performer's right subsists,

    (b) sells or lets for hire or by way of trade exposes or offers for sale or hire any infringing fixation, or infringing reproduction thereof, of a performer's performance in respect of which a performer's right subsists,

    (c) distributes infringing fixations, or infringing reproductions thereof, of a performer's performance in respect of which a performer's right subsists, either for the purpose of trade or to such an extent as to affect prejudicially the owner of the performer's right,

    (d) by way of trade exhibits in public any infringing fixation, or infringing reproduction thereof, of a performer's performance in respect of which a performer's right subsists, or

    (e) imports for sale or hire into Canada any infringing fixation, or infringing reproduction thereof, of a performer's performance in respect of which a performer's right subsists

is guilty of an offence and liable

    (f) on summary conviction, to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding six months or to both, or

    (g) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.

Making or possessing plate - offence and punishment

(2) Every person who knowingly makes or possesses any plate for the purpose of making infringing reproductions of a fixation of a performer's performance in respect of which a performer's right subsists is guilty of an offence and liable

    (a) on summary conviction, to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding six months or to both; or

    (b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.

Power of court to deal with fixations, reproductions or plates

(3) The court before which any proceedings under this section are taken may, whether the alleged offender is convicted or not, order that

    (a) all fixations in the possession of the alleged offender that appear to it to be infringing fixations,

    (b) all reproductions of the fixation in the possession of the alleged offender that appear to it to be infringing reproductions, and

    (c) all plates in the possession of the alleged offender that appear to it to be plates for the purpose of making infringing reproductions

be destroyed or delivered up to the owner of the performer's right or otherwise dealt with as the court may think fit.

65. The heading before section 44 of the Act is replaced by the following:

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