Copyright Act (R.S.C., 1985, c. C-42)

No Liability

Marginal note:No liability

44.08 Neither Her Majesty nor a customs officer is liable for any loss or damage suffered in relation to the enforcement or application of sections 44.01 to 44.04 and 44.06 because of

• (a) the detention of copies of a work or other subject-matter, except if the detention contravenes subsection 44.04(2);

• (b) the failure to detain copies; or

• (c) the release or cessation of detention of any copies, except if the release or cessation contravenes subsection 44.04(3).

Powers of Court Relating to Detained Copies

Marginal note:Application to court

• 44.09 (1) In the course of proceedings referred to in subsection 44.04(3), the court may, on the application of the Minister or a party to the proceedings,

  • (a) impose conditions on the storage or detention of the copies that are the subject of the proceedings; or

  • (b) direct that the copies are no longer to be detained for the purpose of the proceedings, on any conditions that the court may impose, if their owner, importer, exporter or consignee furnishes security in an amount fixed by the court.

• Marginal note:Minister’s consent

  (2) If a party applies to have the detained copies stored in a place other than a bonded warehouse or a sufferance warehouse, as those terms are defined in subsection 2(1) of the Customs Act, the Minister must consent to the storage of the copies in that place before a condition to that effect is imposed under subsection (1).

• Marginal note:Customs Act

  (3) The court may impose a condition described in subsection (2) despite section 31 of the Customs Act.

• Marginal note:Continued detention

  (4) A direction under paragraph (1)(b) that the copies are no longer to be detained for the purpose of the proceedings does not preclude a customs officer from continuing to detain the copies under the Customs Act for another purpose.

• Marginal note:Security

  (5) In the course of proceedings referred to in subsection 44.04(3), the court may, on the application of the Minister or a party to the proceedings, require the owner of copyright to furnish security, in an amount fixed by the court,

  • (a) to cover duties, storage and handling charges, and any other amount that may become chargeable against the copies; and

  • (b) to answer any damages that may, because of the detention of the copies, be sustained by the owner, importer, exporter or consignee of the copies.

Marginal note:Damages against copyright owner

• 44.1 (1) The court may award damages against the owner of copyright who commenced proceedings referred to in subsection 44.04(3) to the owner, importer, exporter or consignee of the copies who is a party to the proceedings for losses, costs or prejudice suffered as a result of the detention of the copies if the proceedings are dismissed or discontinued.

• Marginal note:Damages awarded to copyright owner

  (2) Any damages under subsection 34(1) awarded to the owner of copyright in proceedings referred to in subsection 44.04(3) are to include the charges incurred by the copyright owner as a result of storing, handling or, if applicable, destroying the detained copies.

Prohibition Resulting from Notice

Marginal note:Importation of certain copyright works prohibited

44.11 Copies made outside Canada of any work in which copyright subsists that if made in Canada would infringe copyright and as to which the owner of the copyright gives notice in writing to the Canada Border Services Agency that the owner desires that the copies not be imported into Canada, shall not be so imported and are deemed to be included in tariff item No. 9897.00.00 in the List of Tariff Provisions set out in the schedule to the Customs Tariff, with section 136 of that Act applying accordingly.

Court-ordered Detention

Marginal note:Power of court

• 44.12 (1) A court may make an order described in subsection (3) if the court is satisfied that

  • (a) copies of the work are about to be imported into Canada, or have been imported into Canada but have not been released;

  • (b) the copies were either

    • (i) made without the consent of the person who is owner of the copyright in the country where they were made, or

    • (ii) made elsewhere than in a country to which this Act extends; and

  • (c) the copies would infringe copyright if they were made in Canada by the importer and the importer knows or should have known this.

• Marginal note:Who may apply

  (2) A court may make an order described in subsection (3) on application by the owner of the copyright in a work in Canada.

• Marginal note:Order of court

  (3) In an order made under subsection (1), the court may

  • (a) direct the Minister

    • (i) to take reasonable measures, on the basis of information reasonably required by the Minister and provided by the applicant, to detain the copies of the work, and

    • (ii) to notify the applicant and the importer, immediately after detaining the copies of the work, of the detention and the reasons for the detention; and

  • (b) provide for any other matters that the court considers appropriate.

• Marginal note:How application made

  (4) An application for an order under subsection (1) may be made in an action or otherwise, and either on notice or ex parte, except that it must always be made on notice to the Minister.

• Marginal note:Security

  (5) Before making an order under subsection (1), the court may require the applicant to furnish security, in an amount fixed by the court,

  • (a) to cover duties, storage and handling charges and any other amount that may become chargeable against the copies of the work; and

  • (b) to answer any damages that may by reason of the order be incurred by the owner, importer or consignee of the work.

• Marginal note:Application for directions

  (6) The Minister may apply to the court for directions in implementing an order made under subsection (1).

• Marginal note:Minister may allow inspection

  (7) The Minister may give the applicant or the importer an opportunity to inspect the detained copies of the work for the purpose of substantiating or refuting, as the case may be, the applicant’s claim.

• Marginal note:If applicant fails to commence action

  (8) Unless an order made under subsection (1) provides otherwise, the Minister shall, subject to the Customs Act and to any other Act of Parliament that prohibits, controls or regulates the importation or exportation of goods, release the copies of the work without further notice to the applicant if, within 10 working days after the applicant has been notified under subparagraph (3)(a)(ii), the applicant has not notified the Minister that they have commenced a proceeding for a final determination by the court of the issues referred to in paragraphs (1)(b) and (c).

• Marginal note:If court finds in plaintiff’s favour

  (9) If, in a proceeding commenced under this section, the court is satisfied that the circumstances referred to in paragraphs (1)(b) and (c) existed, the court may make any order that it considers appropriate in the circumstances, including an order that the copies of the work be destroyed, or that they be delivered up to the plaintiff as the plaintiff’s property absolutely.

• Marginal note:Other remedies not affected

  (10) For greater certainty, nothing in this section affects any remedy available under any other provision of this Act or any other Act of Parliament.

Marginal note:Importation of books

• 44.2 (1) A court may, subject to this section, make an order described in subsection 44.12(3) in relation to a book where the court is satisfied that

  • (a) copies of the book are about to be imported into Canada, or have been imported into Canada but have not yet been released;

  • (b) 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 in Canada of the copyright in the book; and

  • (c) the copies would infringe copyright if they were made in Canada by the importer and the importer knows or should have known this.

• Marginal note:Who may apply

  (2) A court may make an order described in subsection 44.12(3) in relation to a book on application by

  • (a) the owner of the copyright in the book in Canada;

  • (b) the exclusive licensee of the copyright in the book in Canada; or

  • (c) the exclusive distributor of the book.

• 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:Application of certain provisions

  (4) Subsections 44.12(3) to (10) apply, with such modifications as the circumstances require, in respect of an order made under subsection (1).

Marginal note:Limitation

44.3 No exclusive licensee of the copyright in a book in Canada, and no exclusive distributor of a book, may obtain an order under section 44.2 against another exclusive licensee of the copyright in that book in Canada or against another exclusive distributor of that book.

Marginal note:Importation of other subject-matter

44.4 Section 44.12 applies, with such modifications as the circumstances require, in respect of a sound recording, performer’s performance or communication signal, where a fixation or a reproduction of a fixation of it

• (a) is about to be imported into Canada, or has been imported into Canada but has not yet been released;

• (b) either

  • (i) was made without the consent of the person who then owned the copyright in the sound recording, performer’s performance or communication signal, as the case may be, in the country where the fixation or reproduction was made, or

  • (ii) was made elsewhere than in a country to which Part II extends; and

• (c) would infringe the right of the owner of copyright in the sound recording, performer’s performance or communication signal if it was made in Canada by the importer and the importer knows or should have known this.

Marginal note:Exceptions

• 45 (1) Notwithstanding anything in this Act, it is lawful for a person

  • (a) to import for their own use not more than two copies of a work or other subject-matter made with the consent of the owner of the copyright in the country where it was made;

  • (b) to import for use by a department of the Government of Canada or a province copies of a work or other subject-matter made with the consent of the owner of the copyright in the country where it was made;

  • (c) at any time before copies of a work or other subject-matter are made in Canada, to import any copies, except copies of a book, made with the consent of the owner of the copyright in the country where the copies were made, that are required for the use of a library, archive, museum or educational institution;

  • (d) to import, for the use of a library, archive, museum or educational institution, not more than one copy of a book that is made with the consent of the owner of the copyright in the country where the book was made; and

  • (e) to import copies, made with the consent of the owner of the copyright in the country where they were made, of any used books, except textbooks of a scientific, technical or scholarly nature for use within an educational institution in a course of instruction.

• Marginal note:Satisfactory evidence

  (2) An officer of customs may, in the officer’s discretion, require a person seeking to import a copy of a work or other subject-matter under this section to produce satisfactory evidence of the facts necessary to establish the person’s right to import the copy.