Copyright Act ( R.S.C. , 1985, c. C-42)

PART III Infringement of Copyright and Moral Rights and Exceptions to Infringement (continued)

Compensation for Acts Done Before Recognition of Copyright of Performers and Broadcasters (continued)

Marginal note: Certain rights and interests protected

32.6 Despite sections 27, 28.1 and 28.2, if a person has, before the day on which subsection 15(1.1), 17.1(1) or 18(1.1) applies in respect of a particular performers’ performance or sound recording, incurred an expenditure or a liability in connection with, or in preparation for, the doing of an act that would, if done after that day, have infringed rights under that subsection, any right or interest of that person that arises from, or in connection with, the doing of that act and that is subsisting and valuable on that day is not, for two years after the day on which this section comes into force, prejudiced or diminished by reason only of the subsequent application of that subsection in respect of the performers’ performance or sound recording.

• 2012, c. 20, s. 39

Compensation for Acts Done Before Recognition of Copyright or Moral Rights

Marginal note: Certain rights and interests protected

• 33 (1) Despite subsections 27(1), (2) and (4) and sections 27.1, 28.1 and 28.2, if a person has, before the later of January 1, 1996 and the day on which a country becomes a treaty country other than a WCT country, incurred an expenditure or liability in connection with, or in preparation for, the doing of an act that, if that country had been such a treaty country, would have infringed copyright in a work or moral rights in respect of a work, any right or interest of that person that arises from, or in connection with, the doing of that act and that is subsisting and valuable on the later of those days is not, except as provided by an order of the Board made under subsection 78(3), prejudiced or diminished by reason only of that country having become such a treaty country.
• Marginal note: Compensation (2) Notwithstanding subsection (1), a person’s right or interest that is protected by that subsection terminates, as against the copyright owner or author, if and when that 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 78.

• R.S., 1985, c. C-42, s. 33
• R.S., 1985, c. 10 (4th Supp.), s. 7
• 1997, c. 24, s. 19
• 2012, c. 20, s. 40

Marginal note: Certain rights and interests protected

• 33.1 (1) Despite subsections 27(1), (2) and (4) and sections 27.1, 28.1 and 28.2, if a person has, before the later of the day on which this section comes into force and the day on which a country that is a treaty country but not a WCT country becomes a WCT country, incurred an expenditure or liability in connection with, or in preparation for, the doing of an act that, if that country had been a WCT country, would have infringed a right under paragraph 3(1)(j), any right or interest of that person that arises from, or in connection with, the doing of that act and that is subsisting and valuable on the later of those days is not, except as provided by an order of the Board made under subsection 78(3), prejudiced or diminished by reason only of that country having become a WCT country.
• Marginal note: Compensation (2) Despite subsection (1), a person’s right or interest that is protected by that subsection terminates as against the copyright owner if and when the owner pays the person any compensation that is agreed to between the parties or, failing agreement, that is determined by the Board in accordance with section 78.

• 2012, c. 20, s. 41

Marginal note: Certain rights and interests protected

• 33.2 (1) Despite subsections 27(1), (2) and (4) and sections 27.1, 28.1 and 28.2, if a person has, before the later of the day on which this section comes into force and the day on which a country that is not a treaty country becomes a WCT country, incurred an expenditure or a liability in connection with, or in preparation for, the doing of an act that, if that country had been a WCT country, would have infringed copyright in a work or moral rights in respect of a work, any right or interest of that person that arises from, or in connection with, the doing of that act and that is subsisting and valuable on the later of those days is not, except as provided by an order of the Board made under subsection 78(3), prejudiced or diminished by reason only of that country having become a WCT country.
• Marginal note: Compensation (2) Despite subsection (1), a person’s right or interest that is protected by that subsection terminates as against the copyright owner if and when that owner pays the person any compensation that is agreed to between the parties or, failing agreement, that is determined by the Board in accordance with section 78.

• 2012, c. 20, s. 41

PART IV Remedies

Civil Remedies

Infringement of Copyright and Moral Rights

Marginal note: Copyright

• 34 (1) Where copyright has been infringed, the owner of the copyright is, subject to this Act, entitled to all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right.
• Marginal note: Moral rights (2) In any proceedings for an infringement of moral rights, the court may grant to the holder of those rights all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right.
• Marginal note: Costs (3) The costs of all parties in any proceedings in respect of the infringement of a right conferred by this Act shall be in the discretion of the court.
• Marginal note: Summary proceedings (4) The following proceedings may be commenced or proceeded with by way of application or action and shall, in the case of an application, be heard and determined without delay and in a summary way:
  • (a) proceedings for infringement of copyright or moral rights;
  • (b) proceedings taken under section 44.12, 44.2 or 44.4; and
  • (c) proceedings taken in respect of
    • (i) a tariff approved by the Board under Part VII.1 or VIII, or
    • (ii) agreements referred to in subsection 67(3).
    • R.S., 1985, c. C-42, s. 34
    • R.S., 1985, c. 10 (4th Supp.), s. 8
    • 1993, c. 15, s. 3(E), c. 44, s. 65
    • 1994, c. 47, s. 62
    • 1997, c. 24, s. 20
    • 2012, c. 20, s. 43
    • 2014, c. 32, s. 6
    • 2018, c. 27, s. 286

    Marginal note: Presumptions respecting copyright and ownership

    • 34.1 (1) In any civil proceedings taken under this Act in which the defendant puts in issue either the existence of the copyright or the title of the plaintiff to it,
      • (a) copyright shall be presumed, unless the contrary is proved, to subsist in the work, performer’s performance, sound recording or communication signal, as the case may be; and
      • (b) the author, performer, maker or broadcaster, as the case may be, shall, unless the contrary is proved, be presumed to be the owner of the copyright.
      • (a) if a name purporting to be that of
        • (i) the author of the work,
        • (ii) the performer of the performer’s performance,
        • (iii) the maker of the sound recording, or
        • (iv) the broadcaster of the communication signal

        is printed or otherwise indicated thereon in the usual manner, the person whose name is so printed or indicated shall, unless the contrary is proved, be presumed to be the author, performer, maker or broadcaster;

        • (i) no name is so printed or indicated, or if the name so printed or indicated is not the true name of the author, performer, maker or broadcaster or the name by which that person is commonly known, and
        • (ii) a name purporting to be that of the publisher or owner of the work, performer’s performance, sound recording or communication signal is printed or otherwise indicated thereon in the usual manner,

        the person whose name is printed or indicated as described in subparagraph (ii) shall, unless the contrary is proved, be presumed to be the owner of the copyright in question; and

        • 1997, c. 24, s. 20
        • 2012, c. 20, s. 44

        Marginal note: Liability for infringement

        • 35 (1) Where a person infringes copyright, the person is liable to pay such damages to the owner of the copyright as the owner has suffered due to the infringement and, in addition to those damages, such part of the profits that the infringer has made from the infringement and that were not taken into account in calculating the damages as the court considers just.
        • Marginal note: Proof of profits (2) In proving profits,
          • (a) the plaintiff shall be required to prove only receipts or revenues derived from the infringement; and
          • (b) the defendant shall be required to prove every element of cost that the defendant claims.
          • R.S., 1985, c. C-42, s. 35
          • 1997, c. 24, s. 20

          36 [Repealed, 2012, c. 20, s. 45]

          37 [Repealed, 2012, c. 20, s. 45]

          Marginal note: Recovery of possession of copies, plates

          • 38 (1) Subject to subsection (2), the owner of the copyright in a work or other subject-matter may
            • (a) recover possession of all infringing copies of that work or other subject-matter, and of all plates used or intended to be used for the production of infringing copies, and
            • (b) take proceedings for seizure of those copies or plates before judgment if, under the law of Canada or of the province in which those proceedings are taken, a person is entitled to take such proceedings,

            as if those copies or plates were the property of the copyright owner.

            • (a) a person from whom the copyright owner has recovered possession of copies or plates referred to in subsection (1),
            • (b) a person against whom proceedings for seizure before judgment of copies or plates referred to in subsection (1) have been taken, or
            • (c) any other person who has an interest in those copies or plates,

            a court may order that those copies or plates be destroyed, or may make any other order that it considers appropriate in the circumstances.

            • (a) the proportion, importance and value of the infringing copy or plate, as compared to the substrate or carrier embodying it; and
            • (b) the extent to which the infringing copy or plate is severable from, or a distinct part of, the substrate or carrier embodying it.
            • R.S., 1985, c. C-42, s. 38
            • 1997, c. 24, s. 20

            Marginal note: Statutory damages

            • 38.1 (1) Subject to this section, a copyright owner may elect, at any time before final judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally,
              • (a) in a sum of not less than $500 and not more than $20,000 that the court considers just, with respect to all infringements involved in the proceedings for each work or other subject-matter, if the infringements are for commercial purposes; and
              • (b) in a sum of not less than $100 and not more than $5,000 that the court considers just, with respect to all infringements involved in the proceedings for all works or other subject-matter, if the infringements are for non-commercial purposes.
              • (a) either
                • (i) there is more than one work or other subject-matter in a single medium, or
                • (ii) the award relates only to one or more infringements under subsection 27(2.3); and
                • (a) the performance in public of musical works or dramatico-musical works, of performer’s performances of such works, or of sound recordings embodying such works or performances; and
                • (b) the communication to the public by telecommunication of musical works or dramatico-musical works, other than as described in subsection 31(2), of performer’s performances of such works, or of sound recordings embodying such works or performances.
                • (a) the good faith or bad faith of the defendant;
                • (b) the conduct of the parties before and during the proceedings;
                • (c) the need to deter other infringements of the copyright in question; and
                • (d) in the case of infringements for non-commercial purposes, the need for an award to be proportionate to the infringements, in consideration of the hardship the award may cause to the defendant, whether the infringement was for private purposes or not, and the impact of the infringements on the plaintiff.
                • (a) an educational institution or a person acting under its authority that has committed an act referred to in section 29.6 or 29.7 and has not paid any royalties or complied with any terms and conditions fixed under this Act in relation to the commission of the act;
                • (b) an educational institution, library, archive or museum that is sued in the circumstances referred to in section 38.2;
                • (c) a person who infringes copyright under paragraph 27(2)(e) or section 27.1, where the copy in question was made with the consent of the copyright owner in the country where the copy was made; or
                • (d) an educational institution that is sued in the circumstances referred to in subsection 30.02(7) or a person acting under its authority who is sued in the circumstances referred to in subsection 30.02(8).
                • 1997, c. 24, s. 20
                • 2012, c. 20, s. 46
                • 2018, c. 27, s. 287