64. (1) In this section and section 64.1,
« objet »
“article” means any thing that is made by hand, tool or machine;
« dessin »
“design” means features of shape, configuration, pattern or ornament and any combination of those features that, in a finished article, appeal to and are judged solely by the eye;
« objet utilitaire »
“useful article” means an article that has a utilitarian function and includes a model of any such article;
« fonction utilitaire »
“utilitarian function”, in respect of an article, means a function other than merely serving as a substrate or carrier for artistic or literary matter.
Marginal note:Non-infringement re certain designs
(2) Where copyright subsists in a design applied to a useful article or in an artistic work from which the design is derived and, by or under the authority of any person who owns the copyright in Canada or who owns the copyright elsewhere,
(a) the article is reproduced in a quantity of more than fifty, or
(b) where the article is a plate, engraving or cast, the article is used for producing more than fifty useful articles,
it shall not thereafter be an infringement of the copyright or the moral rights for anyone
(c) to reproduce the design of the article or a design not differing substantially from the design of the article by
(i) making the article, or
(ii) making a drawing or other reproduction in any material form of the article, or
(d) to do with an article, drawing or reproduction that is made as described in paragraph (c) anything that the owner of the copyright has the sole right to do with the design or artistic work in which the copyright subsists.
(3) Subsection (2) does not apply in respect of the copyright or the moral rights in an artistic work in so far as the work is used as or for
(a) a graphic or photographic representation that is applied to the face of an article;
(b) a trade-mark or a representation thereof or a label;
(c) material that has a woven or knitted pattern or that is suitable for piece goods or surface coverings or for making wearing apparel;
(d) an architectural work that is a building or a model of a building;
(e) a representation of a real or fictitious being, event or place that is applied to an article as a feature of shape, configuration, pattern or ornament;
(f) articles that are sold as a set, unless more than fifty sets are made; or
(g) such other work or article as may be prescribed by regulation.
(4) Subsections (2) and (3) apply only in respect of designs created after the coming into force of this subsection, and section 64 of this Act and the Industrial Design Act, as they read immediately before the coming into force of this subsection, as well as the rules made under them, continue to apply in respect of designs created before that coming into force.
- R.S., 1985, c. C-42, s. 64;
- R.S., 1985, c. 10 (4th Supp.), s. 11;
- 1993, c. 44, s. 68;
- 1997, c. 24, s. 39.
- Date modified: