Copyright Act (R.S.C., 1985, c. C-42)

Marginal note:Radio performances in places other than theatres

• 72.1 (1) In respect of public performances by means of any radio receiving set in any place other than a theatre that is ordinarily and regularly used for entertainments to which an admission charge is made, no royalties shall be collectable from the owner or user of the radio receiving set, but the Board shall, in so far as possible, provide for the collection in advance from radio broadcasting stations of royalties appropiate to the conditions produced by the provisions of this subsection and shall fix the amount of the same.

• Marginal note:Expenses to be taken into account

  (2) In fixing royalties under subsection (1), the Board shall take into account all expenses of collection and other outlays, if any, saved or savable by, for or on behalf of the owner of the copyright or performing right concerned or their agents, in consequence of that subsection.

Effects Related to Tariffs and Fixing of Royalty Rates

Permitted Acts and Enforcement

Marginal note:Effect of fixing royalties

73 Without prejudice to any other remedies available to it, the collective society concerned may collect the royalties specified in an approved tariff or fixed by the Board under subsection 71(2) for the applicable period and, in default of their payment, recover them in a court of competent jurisdiction.

Marginal note:Order — compliance with terms and conditions

73.1 Without prejudice to any other remedies available to it, the collective society concerned may apply to a court of competent jurisdiction for an order directing a person to comply with any terms and conditions that are set out in an approved tariff or that are fixed by the Board under subsection 71(2).

Marginal note:Continuation of rights

73.2 If a proposed tariff’s effective period begins before the proposed tariff is approved, and 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,

• (a) any person authorized under the previous tariff to do an act that is referred to in section 3, 15, 18 or 21 and that is covered by the proposed tariff may do so; and

• (b) the collective society may collect the royalties in accordance with the previous tariff.

Marginal note:Proceedings barred — tariff

73.3 No proceedings may be brought against a person for the infringement of a right with respect to an act referred to in section 3, 15, 18 or 21 if

• (a) the person has paid or offered to pay the royalties set out in an approved tariff that apply with respect to that act;

• (b) in the case where section 73.2 applies with respect to that act, the person has paid or offered to pay the royalties referred to in paragraph 73.2(b); or

• (c) in the case where no tariff has been approved with respect to that act and section 73.2 does not apply with respect to it, the person has offered to pay the royalties that are included in a proposed tariff and that will apply to that act once the tariff is approved.

Marginal note:Approval of request made under section 69

73.4 If the Board approves an application made under section 69, no proceedings may be brought against a person for the infringement of a right with respect to an act referred to in section 3, 15, 18 or 21 if

• (a) the proposed tariff, if approved, will not apply to the act as a result of the Board’s approval of the application; and

• (b) the act occurs during the effective period set out in the proposed tariff and before the first anniversary of the day on which the collective society made its application under section 69 or, if a day has been established by regulations made under subsection 66.91(2), before that day.

Marginal note:Effect of fixing of royalties

• 73.5 (1) If any royalties or related terms and conditions are fixed under subsection 71(2) in respect of a person, the person may, during the applicable period and on paying or offering to pay the applicable royalties, do the act referred to in section 3, 15, 18 or 21 with respect to which the royalties or related terms and conditions are fixed, subject to those related terms and conditions and to the terms and conditions established by the collective society and the person.

• Marginal note:Authority during application

  (2) If an application is made under subsection 71(1), a person in respect of whom royalties or terms and conditions may be fixed may, until the Board’s final decision on the application, do an act referred to in section 3, 15, 18 or 21 to which the application applies if the person has offered to pay the applicable royalties in accordance with any applicable related terms and conditions.

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)