Copyright Act (R.S.C., 1985, c. C-42)

Marginal note:Broadcasting undertakings

41.17 Paragraph 41.1(1)(a) does not apply to a broadcasting undertaking that circumvents a technological protection measure for the sole purpose of making an ephemeral reproduction of a work, a performer’s performance fixed in a sound recording or a sound recording in accordance with section 30.9, unless the owner of the copyright in the work, the performer’s performance fixed in a sound recording or the sound recording that is protected by the technological protection measure makes available the necessary means to enable the making of such a reproduction in a timely manner in light of the broadcasting undertaking’s business requirements.

Marginal note:Radio apparatus

• 41.18 (1) Paragraph 41.1(1)(a) does not apply to a person who circumvents a technological protection measure on a radio apparatus for the sole purpose of gaining access to a telecommunications service by means of the radio apparatus.

• Marginal note:Services or technology, device or component

  (2) Paragraphs 41.1(1)(b) and (c) do not apply to a person who offers the services to the public or provides the services, or manufactures, imports or provides the technology, device or component, for the sole purpose of facilitating access to a telecommunications service by means of a radio apparatus.

• Marginal note:Definitions

  (3) The following definitions apply in this section.

  radio apparatus

  appareil radio

  radio apparatus has the same meaning as in section 2 of the Radiocommunication Act. (appareil radio)

  telecommunications service

  service de télécommunication

  telecommunications service has the same meaning as in subsection 2(1) of the Telecommunications Act. (service de télécommunication)

Marginal note:Reduction of damages

41.19 A court may reduce or remit the amount of damages it awards in the circumstances described in subsection 41.1(1) if the defendant satisfies the court that the defendant was not aware, and had no reasonable grounds to believe, that the defendant’s acts constituted a contravention of that subsection.

Marginal note:Injunction only remedy

41.2 If a court finds that a defendant that is a library, archive or museum or an educational institution has contravened subsection 41.1(1) and the defendant satisfies the court that it was not aware, and had no reasonable grounds to believe, that its actions constituted a contravention of that subsection, the plaintiff is not entitled to any remedy other than an injunction.

Marginal note:Regulations

• 41.21 (1) The Governor in Council may make regulations excluding from the application of section 41.1 any technological protection measure that protects a work, a performer’s performance fixed in a sound recording or a sound recording, or classes of them, or any class of such technological protection measures, if the Governor in Council considers that the application of that section to the technological protection measure or class of technological protection measures would unduly restrict competition in the aftermarket sector in which the technological protection measure is used.

• Marginal note:Regulations

  (2) The Governor in Council may make regulations

  • (a) prescribing additional circumstances in which paragraph 41.1(1)(a) does not apply, having regard to the following factors:

    • (i) whether not being permitted to circumvent a technological protection measure that is subject to that paragraph could adversely affect the use a person may make of a work, a performer’s performance fixed in a sound recording or a sound recording when that use is authorized,

    • (ii) whether the work, the performer’s performance fixed in a sound recording or the sound recording is commercially available,

    • (iii) whether not being permitted to circumvent a technological protection measure that is subject to that paragraph could adversely affect criticism, review, news reporting, commentary, parody, satire, teaching, scholarship or research that could be made or done in respect of the work, the performer’s performance fixed in a sound recording or the sound recording,

    • (iv) whether being permitted to circumvent a technological protection measure that is subject to that paragraph could adversely affect the market for the work, the performer’s performance fixed in a sound recording or the sound recording or its market value,

    • (v) whether the work, the performer’s performance fixed in a sound recording or the sound recording is commercially available in a medium and in a quality that is appropriate for non-profit archival, preservation or educational uses, and

    • (vi) any other relevant factor; and

  • (b) requiring the owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording that is protected by a technological protection measure to provide access to the work, performer’s performance fixed in a sound recording or sound recording to persons who are entitled to the benefit of any of the limitations on the application of paragraph 41.1(1)(a) prescribed under paragraph (a). The regulations may prescribe the manner in which, and the time within which, access is to be provided, as well as any conditions that the owner of the copyright is to comply with.

Marginal note:Prohibition — rights management information

• 41.22 (1) No person shall knowingly remove or alter any rights management information in electronic form without the consent of the owner of the copyright in the work, the performer’s performance or the sound recording, if the person knows or should have known that the removal or alteration will facilitate or conceal any infringement of the owner’s copyright or adversely affect the owner’s right to remuneration under section 19.

• Marginal note:Removal or alteration of rights management information

  (2) The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording 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 copyright against a person who contravenes subsection (1).

• Marginal note:Subsequent acts

  (3) The copyright owner referred to in subsection (2) has the same remedies against a person who, without the owner’s consent, knowingly does any of the following acts with respect to any material form of the work, the performer’s performance fixed in a sound recording or the sound recording and knows or should have known that the rights management information has been removed or altered in a way that would give rise to a remedy under that subsection:

  • (a) sells it or rents it out;

  • (b) distributes it to an extent that the copyright owner is prejudicially affected;

  • (c) by way of trade, distributes it, exposes or offers it for sale or rental or exhibits it in public;

  • (d) imports it into Canada for the purpose of doing anything referred to in any of paragraphs (a) to (c); or

  • (e) communicates it to the public by telecommunication.

• Definition of rights management information

  (4) In this section, rights management information means information that

  • (a) is attached to or embodied in a copy of a work, a performer’s performance fixed in a sound recording or a sound recording, or appears in connection with its communication to the public by telecommunication; and

  • (b) identifies or permits the identification of the work or its author, the performance or its performer, the sound recording or its maker or the holder of any rights in the work, the performance or the sound recording, or concerns the terms or conditions of the work’s, performance’s or sound recording’s use.

General Provisions

Marginal note:Protection of separate rights

• 41.23 (1) Subject to this section, the owner of any copyright, or any person or persons deriving any right, title or interest by assignment or grant in writing from the owner, may individually for himself or herself, as a party to the proceedings in his or her own name, protect and enforce any right that he or she holds, and, to the extent of that right, title and interest, is entitled to the remedies provided by this Act.

• Marginal note:Copyright owner to be made party

  (2) If proceedings under subsection (1) are taken by a person other than the copyright owner, the copyright owner shall be made a party to those proceedings, except

  • (a) in the case of proceedings taken under section 44.12, 44.2 or 44.4;

  • (b) in the case of interlocutory proceedings, unless the court is of the opinion that the interests of justice require the copyright owner to be a party; and

  • (c) in any other case in which the court is of the opinion that the interests of justice do not require the copyright owner to be a party.

• Marginal note:Owner’s liability for costs

  (3) A copyright owner who is made a party to proceedings under subsection (2) is not liable for any costs unless the copyright owner takes part in the proceedings.

• Marginal note:Apportionment of damages, profits

  (4) If a copyright owner is made a party to proceedings under subsection (2), the court, in awarding damages or profits, shall, subject to any agreement between the person who took the proceedings and the copyright owner, apportion the damages or profits referred to in subsection 35(1) between them as the court considers appropriate.