44.1 (1) In this section and sections 44.2 and 44.3,
court means the Federal Court or the superior court of a province; (tribunal)
duties has the same meaning as in the Customs Act; (droits)
Minister means the Minister of National Revenue; (ministre)
release has the same meaning as in the Customs Act. (dédouanement)
Marginal note:Power of court
(2) A court may make an order described in subsection (3) where 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 yet been released;
(i) copies of the work were made without the consent of the person who then owned the copyright in the country where the copies were made, or
(ii) the copies were 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
(2.1) A court may make an order described in subsection (3) on application by the owner or exclusive licensee of copyright in a work in Canada.
Marginal note:Order of court
(3) The order referred to in subsection (2) is an order
(a) directing 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 work, and
(ii) to notify the applicant and the importer, forthwith after detaining the work, of the detention and the reasons therefor; and
(b) providing for such other matters as the court considers appropriate.
Marginal note:How application made
(4) An application for an order made under subsection (2) 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:Court may require security
(5) Before making an order under subsection (2), 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 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 (2).
Marginal note:Minister may allow inspection
(7) The Minister may give the applicant or the importer an opportunity to inspect the detained work for the purpose of substantiating or refuting, as the case may be, the applicant’s claim.
Marginal note:Where applicant fails to commence an action
(8) Unless an order made under subsection (2) 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, two weeks after the applicant has been notified under subparagraph (3)(a)(ii), the applicant has not notified the Minister that the applicant has commenced a proceeding for a final determination by the court of the issues referred to in paragraphs (2)(b) and (c).
Marginal note:Where court finds in plaintiff’s favour
(9) Where, in a proceeding commenced under this section, the court finds that the circumstances referred to in paragraphs (2)(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.
- 1993, c. 44, s. 66
- 1997, c. 24, s. 27
- Date modified: