Copyright Act (R.S.C., 1985, c. C-42)

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.

Parallel Importation of Books

Marginal note:Importation of books

• 27.1 (1) Subject to any regulations made under subsection (6), it is an infringement of copyright in a book for any person to import the book where

  • (a) copies of the book were made with the consent of the owner of the copyright in the book in the country where the copies were made, but were imported without the consent of the owner of the copyright in the book in Canada; and

  • (b) the person knows or should have known that the book would infringe copyright if it was made in Canada by the importer.

• Marginal note:Secondary infringement

  (2) Subject to any regulations made under subsection (6), where the circumstances described in paragraph (1)(a) exist, it is an infringement of copyright in an imported book for any person who knew or should have known that the book would infringe copyright if it was made in Canada by the importer to

  • (a) sell or rent out the book;

  • (b) by way of trade, distribute, expose or offer for sale or rental, or exhibit in public, the book; or

  • (c) possess the book for the purpose of any of the activities referred to in paragraph (a) or (b).

• Marginal note:Limitation

  (3) Subsections (1) and (2) only apply where there is an exclusive distributor of the book and the acts described in those subsections take place in the part of Canada or in respect of the particular sector of the market for which the person is the exclusive distributor.

• Marginal note:Exclusive distributor

  (4) An exclusive distributor is deemed, for the purposes of entitlement to any of the remedies under Part IV in relation to an infringement under this section, to derive an interest in the copyright in question by licence.

• Marginal note:Notice

  (5) No exclusive distributor, copyright owner or exclusive licensee is entitled to a remedy under Part IV in relation to an infringement under this section unless, before the infringement occurred, notice has been given within the prescribed time and in the prescribed manner to the person referred to in subsection (1) or (2), as the case may be, that there is an exclusive distributor of the book.

• Marginal note:Regulations

  (6) The Governor in Council may, by regulation, establish terms and conditions for the importation of certain categories of books, including remaindered books, books intended solely for re-export and books imported by special order.

28 [Repealed, 1997, c. 24, s. 15]

28.01 [Repealed, 1997, c. 24, s. 16]

28.02 and 28.03 [Repealed, 1997, c. 24, s. 17]

Moral Rights Infringement

Marginal note:Infringement generally

28.1 Any act or omission that is contrary to any of the moral rights of the author of a work or of the performer of a performer’s performance is, in the absence of the author’s or performer’s consent, an infringement of those rights.