Copyright Act (R.S.C., 1985, c. C-42)

Marginal note:Restriction on information use  — section 44.03

• 44.05 (1) A person who receives a sample or information that is provided under section 44.03 shall not use the information, or information that is derived from the sample, for any purpose other than to give information to the customs officer about whether the importation or exportation of the copies is prohibited under section 44.01.

• Marginal note:Restriction on information use  — subsection 44.04(1)

  (2) A person who receives a sample or information that is provided under subsection 44.04(1) shall not use the information, or information that is derived from the sample, for any purpose other than to pursue remedies under this Act.

• Marginal note:For greater certainty

  (3) For greater certainty, subsection (2) does not prevent the confidential communication of information about the copies for the purpose of reaching an out-of-court settlement.

Marginal note:Inspection

44.06 After a sample or information has been provided under subsection 44.04(1), a customs officer may, in the officer’s discretion, give the owner, importer, exporter and consignee of the detained copies and the owner of copyright an opportunity to inspect the copies.

Marginal note:Liability for charges

• 44.07 (1) The owner of copyright who has received a sample or information under subsection 44.04(1) is liable to Her Majesty in right of Canada for the storage and handling charges for the detained copies  —  and, if applicable, for the charges for destroying them  —  for the period beginning on the day after the day on which a customs officer first sends or makes available a sample or information to that owner under that subsection and ending on the first day on which one of the following occurs:

  • (a) the copies are no longer detained for the purpose of enforcing section 44.01 or, if subsection 44.04(3) applies, for the purpose of the proceedings referred to in that subsection;

  • (b) the Minister receives written notification in which the owner states that the importation or exportation of the copies does not, with respect to the owner’s copyright, contravene section 44.01;

  • (c) the Minister receives written notification in which the owner states that they will not, while the copies are detained for the purpose of enforcing section 44.01, commence proceedings to obtain a remedy under this Act with respect to them.

• Marginal note:Exception   — paragraph (1)(a)

  (2) Despite paragraph (1)(a), if the copies are forfeited under subsection 39(1) of the Customs Act and the Minister did not, before the end of the detention of the copies for the purpose of enforcing section 44.01, receive a copy of a document filed with a court commencing proceedings to obtain a remedy under this Act with respect to the detained copies or the written notification referred to in paragraph (1)(b) or (c), the period ends on the day on which the copies are forfeited.

• Marginal note:Exception  — paragraph (1)(c)

  (3) Despite paragraph (1)(c), if the copies are forfeited under subsection 39(1) of the Customs Act after the Minister has received the written notification referred to in that paragraph, the period ends on the day on which the copies are forfeited.

• Marginal note:Joint and several or solidary liability

  (4) The owner and the importer or exporter of copies that are forfeited in the circumstances set out in subsection (2) or (3) are jointly and severally, or solidarily, liable to the owner of copyright for all the charges under subsection (1) paid by the copyright owner with respect to the period

  • (a) in the circumstances referred to in subsection (2), beginning on the day on which the copies are no longer detained for the purpose of enforcing section 44.01 and ending on the day on which the copies are forfeited; and

  • (b) in the circumstances referred to in subsection (3), beginning on the day on which the Minister receives the written notification referred to in paragraph (1)(c) and ending on the day on which the copies are forfeited.

• Marginal note:Exception

  (5) Subsections (1) to (3) do not apply if

  • (a) the detention of the copies for the purpose of enforcing section 44.01 ends before the expiry of 10 working days  —  or, if the copies are perishable, before the expiry of five days  —  after the day on which the customs officer first sends or makes available a sample or information to the copyright owner under subsection 44.04(1); and

  • (b) the Minister has not, by the end of the detention, received a copy of a document filed with a court commencing proceedings to obtain a remedy under this Act with respect to the detained copies or the written notification referred to in paragraph (1)(b) or (c).

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.