Copyright Act (R.S.C., 1985, c. C-42)

Effects of Agreement

Marginal note:No application

74 An approved tariff and any royalty rates and related terms and conditions fixed by the Board under subsection 71(2), as well as sections 73.2 to 73.5, do not apply to a person in respect of the matters covered by an agreement referred to in subsection 67(3) that applies to the person.

Claim by Copyright Owner — Particular Royalties

Marginal note:Claims by non-members

• 75 (1) An owner of copyright who does not authorize a collective society to collect, for that person’s benefit, royalties referred to in paragraph 31(2)(d) is, if the work is communicated to the public by telecommunication during a period when an approved tariff that is applicable to that kind of work is effective, entitled to be paid those royalties by the collective society that is designated by the Board, of its own motion or on application, subject to the same conditions as those to which a person who has so authorized that collective society is subject.

• Marginal note:Payment to non-members

  (2) An owner of copyright who does not authorize a collective society to collect, for that person’s benefit, royalties referred to in subsection 29.7(2) or (3) is, if such royalties are payable during a period when an approved tariff that is applicable to that kind of work or other subject matter is effective, entitled to be paid those royalties by the collective society that is designated by the Board, of its own motion or on application, subject to the same conditions as those to which a person who has so authorized that collective society is subject.

• Marginal note:Exclusion of other remedies

  (3) The entitlement referred to in subsections (1) and (2) is the only remedy of the owner of the copyright for the payment of royalties for the communication, making of the copy or sound recording or performance in public, as the case may be.

• Marginal note:Measures

  (4) The Board may, for the purposes of this section,

  • (a) require a collective society to file with the Board information relating to payments of royalties collected by it to the persons who have authorized it to collect those royalties; and

  • (b) by regulation, establish periods of not less than 12 months within which the entitlements referred to in subsections (1) and (2) must be exercised, beginning on

    • (i) the making of the copy, in the case of royalties referred to in subsection 29.7(2),

    • (ii) the performance in public, in the case of royalties referred to in subsection 29.7(3), or

    • (iii) the communication to the public by telecommunication, in the case of royalties referred to in paragraph 31(2)(d).

Examination of Agreements

Marginal note:Definition of Commissioner

• 76 (1) For the purposes of this section and section 76.1, Commissioner means the Commissioner of Competition appointed under the Competition Act.

• Marginal note:Filing agreement with the Board

  (2) If a collective society enters into an agreement under subsection 67(3) with a user, either party may file a copy of the agreement with the Board within 15 days after it is entered into.

• Marginal note:Non-application of section 45 of Competition Act

  (3) Section 45 of the Competition Act does not apply in respect of any royalties or related terms and conditions arising under an agreement filed in accordance with subsection (2).

• Marginal note:Access by Commissioner

  (4) The Commissioner may have access to the copy of an agreement filed in accordance with subsection (2).

• Marginal note:Request for examination

  (5) If the Commissioner considers that an agreement filed in accordance with subsection (2) is contrary to the public interest, he or she may, after advising the parties, request that the Board examine it.

Marginal note:Examination and fixing of royalty

• 76.1 (1) The Board shall consider a request by the Commissioner to examine an agreement and may, after giving the Commissioner and the parties to the agreement an opportunity to present their arguments, alter the royalties and any related terms and conditions arising under the agreement or fix new related terms and conditions.

• Marginal note:Copy of decision and reasons

  (2) The Board shall send a copy of the decision and the reasons for it to the parties and to the Commissioner.

PART VII.2Certain Applications to Board

Owners Who Cannot be Located

Marginal note:Circumstances 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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note:Board may determine compensation

• 78 (1) 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).

• Marginal note: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.

• Marginal note: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 VIIIPrivate Copying

Interpretation

Marginal note:Definitions

79 In this Part,

audio recording medium

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; (support audio)

blank audio recording medium

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; (support audio vierge)

collecting body

collecting body means the collective society, or other society, association or corporation, that is designated as the collecting body under subsection 83(8); (organisme de perception)

eligible author

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; (auteur admissible)

eligible maker

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 within the meaning of subsection 2(1) of the Immigration and Refugee Protection 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; (producteur admissible)

eligible performer

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 within the meaning of subsection 2(1) of the Immigration and Refugee Protection 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; (artiste-interprète admissible)

prescribed

prescribed means prescribed by regulations made under this Part. (Version anglaise seulement)

Copying for Private Use

Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note:Filing of proposed tariff

  (2) A proposed tariff must be filed no later than October 15 of the second calendar year before the calendar year in which the proposed tariff is to take effect or, if a day is established under regulations made under subsection 66.91(2), no later than that day.

• Marginal note:Form and content

  (3) A proposed tariff must be filed in both official languages and include

  • (a) the proposed levy rates and any related terms and conditions; and

  • (b) the effective period of the proposed tariff.

  It may also include a suggestion as to whom the Board should designate under paragraph (8)(b).

• Marginal note:Minimum effective period

  (4) A proposed tariff’s effective period must be at least three calendar years or, if a minimum period is established under regulations made under subsection 66.91(2), at least that minimum period.

• Marginal note:Publication

  (5) The Board, in the manner that it sees fit, shall publish the proposed tariff and a notice that any person or entity who files an objection must do so no later than the 30th day after the day on which the Board made the proposed tariff public or, if a day is established under regulations made under subsection 66.91(2), no later than that day.

• Marginal note:Copy of objection

  (6) The Board shall provide a copy of the filed objection to each collective society concerned.

• Marginal note:Reply

  (7) Each collective society concerned may file a reply to an objection with the Board.

• Marginal note:Copy to objector

  (7.1) The Board shall provide a copy of the filed reply to the person or entity that filed the objection.

• Marginal note:Approval

  (8) The Board shall, within the period that is established under regulations made under subsection 66.91(2),

  • (a) approve a proposed tariff, after making any alterations to the levy rates and the related terms and conditions, or fixing any new related terms and conditions, that the Board considers appropriate; and

  • (b) subject to subsection (8.2), 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.

• Marginal note:Terms and conditions

  (8.1) The related terms and conditions may include terms and conditions such as the form, content and frequency of the statements of account referred to in subsection 82(1), measures for the protection of confidential information contained in those statements, and the times at which the levies are payable.

• Marginal note:Designation

  (8.2) The Board is not obligated to designate a collecting body under paragraph (8)(b) if it has previously done so, and a designation under that paragraph remains in effect until the Board, under a proposed tariff or on a separate application, makes another designation.

• Marginal note:Publication of approved tariffs

  (9) The Board shall publish the approved tariff in the Canada Gazette and provide a copy of it, together with the reasons for the Board’s decision, to

  • (a) the collecting body;

  • (b) each collective society that filed a proposed tariff;

  • (c) every person or entity that filed an objection under subsection (5); and

  • (d) any other person or entity that, in the Board’s opinion, ought to receive the copy and reasons.

• Marginal note:Continuation of rights

  (10) If a proposed tariff’s effective period begins before the proposed tariff is approved and that effective period begins immediately after the expiry of the previous tariff, then — from the start of the effective period of the proposed tariff until the earlier of its approval and the end of its effective period — the collecting body may collect the levies in accordance with the previous tariff.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.