Copyright Act (R.S.C., 1985, c. C-42)

Rights of Broadcasters

Marginal note:Copyright in communication signals

• 21 (1) Subject to subsection (2), a broadcaster has a copyright in the communication signals that it broadcasts, consisting of the sole right to do the following in relation to the communication signal or any substantial part thereof:

  • (a) to fix it,

  • (b) to reproduce any fixation of it that was made without the broadcaster’s consent,

  • (c) to authorize another broadcaster to retransmit it to the public simultaneously with its broadcast, and

  • (d) in the case of a television communication signal, to perform it in a place open to the public on payment of an entrance fee,

  and to authorize any act described in paragraph (a), (b) or (d).

• Marginal note:Conditions for copyright

  (2) Subsection (1) applies only if the broadcaster

  • (a) at the time of the broadcast, had its headquarters in Canada, in a country that is a WTO Member or in a Rome Convention country; and

  • (b) broadcasts the communication signal from that country.

• Marginal note:Exception

  (3) Notwithstanding subsection (2), if the Minister is of the opinion that a Rome Convention country or a country that is a WTO Member does not grant the right mentioned in paragraph (1)(d), the Minister may, by a statement published in the Canada Gazette, declare that broadcasters that have their headquarters in that country are not entitled to that right.

Reciprocity

Marginal note:Reciprocity

• 22 (1) If the Minister is of the opinion that a country other than a Rome Convention country or a WPPT country grants or has undertaken to grant

  • (a) to performers and to makers of sound recordings, or

  • (b) to broadcasters

  that are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if corporations, have their headquarters in Canada, as the case may be, whether by treaty, convention, agreement or law, benefits substantially equivalent to those conferred by this Part, the Minister may, by a statement published in the Canada Gazette,

  • (c) grant the benefits conferred by this Part

    • (i) to performers and to makers of sound recordings, or

    • (ii) to broadcasters

    as the case may be, that are citizens, subjects or permanent residents of or, if corporations, have their headquarters in that country, and

  • (d) declare that that country shall, as regards those benefits, be treated as if it were a country to which this Part extends.

• Marginal note:Reciprocity

  (2) If the Minister is of the opinion that a country other than a Rome Convention country or a WPPT country neither grants nor has undertaken to grant

  • (a) to performers, and to makers of sound recordings, or

  • (b) to broadcasters

  that are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if corporations, have their headquarters in Canada, as the case may be, whether by treaty, convention, agreement or law, benefits substantially equivalent to those conferred by this Part, the Minister may, by a statement published in the Canada Gazette,

  • (c) grant the benefits conferred by this Part to performers, makers of sound recordings or broadcasters that are citizens, subjects or permanent residents of or, if corporations, have their headquarters in that country, as the case may be, to the extent that that country grants that those benefits to performers, makers of sound recordings or broadcasters that are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if corporations, have their headquarters in Canada, and

  • (d) declare that that country shall, as regards those benefits, be treated as if it were a country to which this Part extends.

• Marginal note:Application of Act

  (3) Any provision of this Act that the Minister specifies in a statement referred to in subsection (1) or (2)

  • (a) applies in respect of performers, makers of sound recordings or broadcasters covered by that statement, as if they were citizens of or, if corporations, had their headquarters in Canada; and

  • (b) applies in respect of a country covered by that statement, as if that country were Canada.

• Marginal note:Application of Act

  (4) Subject to any exceptions that the Minister may specify in a statement referred to in subsection (1) or (2), the other provisions of this Act also apply in the way described in subsection (3).

Term of Rights

Marginal note:Term of copyright — performer’s performance

• 23 (1) Subject to this Act, copyright in a performer’s performance subsists until the end of 50 years after the end of the calendar year in which the performance occurs. However,

  • (a) if the performance is fixed in a sound recording before the copyright expires, the copyright continues until the end of 70 years after the end of the calendar year in which the first fixation of the performance in a sound recording occurs; and

  • (b) if a sound recording in which the performance is fixed is published before the copyright expires, the copyright continues until the earlier of the end of 75 years after the end of the calendar year in which the first such publication occurs and the end of 100 years after the end of the calendar year in which the first fixation of the performance in a sound recording occurs.

• Marginal note:Term of copyright — sound recording

  (1.1) Subject to this Act, copyright in a sound recording subsists until the end of 70 years after the end of the calendar year in which the first fixation of the sound recording occurs. However, if the sound recording is published before the copyright expires, the copyright continues until the earlier of the end of 75 years after the end of the calendar year in which the first publication of the sound recording occurs and the end of 100 years after the end of the calendar year in which that first fixation occurs.

• Marginal note:Term of copyright — communication signal

  (1.2) Subject to this Act, copyright in a communication signal subsists until the end of 50 years after the end of the calendar year in which the communication signal is broadcast.

• Marginal note:Term of right to remuneration

  (2) The rights to remuneration conferred on performers and makers by section 19 have the same terms, respectively, as those provided by subsections (1) and (1.1).

• Marginal note:Application of subsections (1) to (2)

  (3) Subsections (1) to (2) apply whether the fixation, performance or broadcast occurred before or after the coming into force of this section.

• Marginal note:Berne Convention countries, Rome Convention countries, WTO Members

  (4) Where the performer’s performance, sound recording or communication signal meets the requirements set out in section 15, 18 or 21, as the case may be, a country that becomes a Berne Convention country, a Rome Convention country or a WTO Member after the date of the fixation, performance or broadcast is, as of becoming a Berne Convention country, Rome Convention country or WTO Member, as the case may be, deemed to have been such at the date of the fixation, performance or broadcast.

• Marginal note:Where term of protection expired

  (5) Subsection (4) does not confer any protection in Canada where the term of protection in the country referred to in that subsection had expired before that country became a Berne Convention country, Rome Convention country or WTO Member, as the case may be.

Ownership of Copyright

Marginal note:Ownership of copyright

24 The first owner of the copyright

• (a) in a performer’s performance, is the performer;

• (b) in a sound recording, is the maker; or

• (c) in a communication signal, is the broadcaster that broadcasts it.

Marginal note:Assignment of rights

25 Subsections 13(4) to (7) apply, with such modifications as the circumstances require, in respect of the rights conferred by this Part on performers, makers of sound recordings and broadcasters.

Performers’ Rights — WTO Countries

Marginal note:Performer’s performance in WTO country

• 26 (1) Where a performer’s performance takes place on or after January 1, 1996 in a country that is a WTO Member, the performer has, as of the date of the performer’s performance, a copyright in the performer’s performance, consisting of the sole right to do the following in relation to the performer’s performance or any substantial part thereof:

  • (a) if it is not fixed, to communicate it to the public by telecommunication and to fix it in a sound recording, and

  • (b) if it has been fixed in a sound recording without the performer’s authorization, to reproduce the fixation or any substantial part thereof,

  and to authorize any such acts.

• Marginal note:Where country joins WTO after Jan. 1, 1996

  (2) Where a performer’s performance takes place on or after January 1, 1996 in a country that becomes a WTO Member after the date of the performer’s performance, the performer has the copyright described in subsection (1) as of the date the country becomes a WTO Member.

• Marginal note:Performer’s performances before Jan. 1, 1996

  (3) Where a performer’s performance takes place before January 1, 1996 in a country that is a WTO Member, the performer has, as of January 1, 1996, the sole right to do and to authorize the act described in paragraph (1)(b).

• Marginal note:Where country joins WTO after Jan. 1, 1996

  (4) Where a performer’s performance takes place before January 1, 1996 in a country that becomes a WTO Member on or after January 1, 1996, the performer has the right described in subsection (3) as of the date the country becomes a WTO Member.

• Marginal note: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.

• Marginal note:Assignment of rights

  (6) Subsections 13(4) to (7) apply, with such modifications as the circumstances require, in respect of a performer’s rights conferred by this section.

• Marginal note:Limitation

  (7) Notwithstanding an assignment of a performer’s right conferred by this section, the performer, as well as the assignee, may

  • (a) prevent the reproduction of

    • (i) any fixation of the performer’s performance, or

    • (ii) any substantial part of such a fixation,

    where the fixation was made without the performer’s consent or the assignee’s consent; and

  • (b) prevent the importation of any fixation of the performer’s performance, or any reproduction of such a fixation, that the importer knows or ought to have known was made without the performer’s consent or the assignee’s consent.

PART IIIInfringement of Copyright and Moral Rights and Exceptions to Infringement

Infringement of Copyright

General

Marginal note:Infringement generally

• 27 (1) It is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do.

• Marginal note:Secondary infringement

  (2) It is an infringement of copyright for any person to

  • (a) sell or rent out,

  • (b) distribute to such an extent as to affect prejudicially the owner of the copyright,

  • (c) by way of trade distribute, expose or offer for sale or rental, or exhibit in public,

  • (d) possess for the purpose of doing anything referred to in paragraphs (a) to (c), or

  • (e) import into Canada for the purpose of doing anything referred to in paragraphs (a) to (c),

  a copy of a work, sound recording or fixation of a performer’s performance or of a communication signal that the person knows or should have known infringes copyright or would infringe copyright if it had been made in Canada by the person who made it.

• Marginal note:Clarification

  (2.1) For greater certainty, a copy made outside Canada does not infringe copyright under subsection (2) if, had it been made in Canada, it would have been made under a limitation or exception under this Act.

• Marginal note:Secondary infringement  — exportation

  (2.11) It is an infringement of copyright for any person, for the purpose of doing anything referred to in paragraphs (2)(a) to (c), to export or attempt to export a copy  —  of a work, sound recording or fixation of a performer’s performance or of a communication signal  —  that the person knows or should have known was made without the consent of the owner of the copyright in the country where the copy was made.

• Marginal note:Exception

  (2.12) Subsection (2.11) does not apply with respect to a copy that was made under a limitation or exception under this Act or, if it was made outside Canada, that would have been made under such a limitation or exception had it been made in Canada.

• Marginal note:Secondary infringement related to lesson

  (2.2) It is an infringement of copyright for any person to do any of the following acts with respect to anything that the person knows or should have known is a lesson, as defined in subsection 30.01(1), or a fixation of one:

  • (a) to sell it or to rent it out;

  • (b) to distribute it to an extent that the owner of the copyright in the work or other subject-matter that is included in the lesson is prejudicially affected;

  • (c) by way of trade, to distribute it, expose or offer it for sale or rental or exhibit it in public;

  • (d) to possess it for the purpose of doing anything referred to in any of paragraphs (a) to (c);

  • (e) to communicate it by telecommunication to any person other than a person referred to in paragraph 30.01(3)(a); or

  • (f) to circumvent or contravene any measure taken in conformity with paragraph 30.01(6)(b), (c) or (d).

• Marginal note:Infringement — provision of services

  (2.3) It is an infringement of copyright for a person, by means of the Internet or another digital network, to provide a service primarily for the purpose of enabling acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.

• Marginal note:Factors

  (2.4) In determining whether a person has infringed copyright under subsection (2.3), the court may consider

  • (a) whether the person expressly or implicitly marketed or promoted the service as one that could be used to enable acts of copyright infringement;

  • (b) whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement;

  • (c) whether the service has significant uses other than to enable acts of copyright infringement;

  • (d) the person’s ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so;

  • (e) any benefits the person received as a result of enabling the acts of copyright infringement; and

  • (f) the economic viability of the provision of the service if it were not used to enable acts of copyright infringement.

• Marginal note:Knowledge of importer

  (3) In determining whether there is an infringement under subsection (2) in the case of an activity referred to in any of paragraphs (2)(a) to (d) in relation to a copy that was imported in the circumstances referred to in paragraph (2)(e), it is irrelevant whether the importer knew or should have known that the importation of the copy infringed copyright.

• Marginal note:Plates

  (4) It is an infringement of copyright for any person to make or possess a plate that has been specifically designed or adapted for the purpose of making infringing copies of a work or other subject-matter.

• Marginal note:Public performance for profit

  (5) It is an infringement of copyright for any person, for profit, to permit a theatre or other place of entertainment to be used for the performance in public of a work or other subject-matter without the consent of the owner of the copyright unless that person was not aware, and had no reasonable ground for suspecting, that the performance would be an infringement of copyright.