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31 January 2000
Significant amendments to the Copyright Act were given royal assent in April 1997 and have been implemented in phases. On October 1 1999 the last of the amendments came into force covering, in general terms, the following topics:
The amendments regarding ephemeral recordings permit Canadian Radio-Television & Telecommunications Commission-licensed television and radio stations to reproduce and broadcast live performances or works (other than cinematographic works) so long as the recordings are not synchronized with any other recording, performance or work or used for advertising or promotional purposes. For example, segments of concerts could be taped and broadcast on entertainment news shows. However, such recordings must be destroyed within 30 days of their creation, except where archived or authorized by the copyright owner.
Furthermore, authorized sound recordings may be copied in order to format them for broadcasting. For example, a radio station may copy authorized sound recordings from its CD (compact disc) library in order to create a daily play list. These copies also must be destroyed within 30 days of their creation unless authorized by the copyright owner.
Disputes involving infringement of copyright or moral rights, importation, tariffs or agreements with collective societies may now be litigated by way of application. An 'application' is a summary procedure that avoids many of the costly and time-consuming aspects of actions such as pleadings, discovery and witnesses' testimonies at trial. Applications proceed on affidavit evidence and, pursuant the Copyright Act, must be conducted summarily and without delay. The increased speed and reduced cost of an application will make this a desirable alternative where the amount in issue is relatively small and/or the facts and issues are fairly straightforward.
Often, one of the most difficult tasks in a copyright action is proving the plaintiff's damages or the defendant's profits that are attributable to an infringement. Now a plaintiff can elect, before judgment, to take statutory damages, which in most cases will range from C$500 to C$20,000 for infringement of a single work.
If the defendant can convince the court that he/she did not realize and had no reasonable grounds to believe that copyright was being infringed, the court can lower the damages award to C$200 to C$500 per work. The court can lower the damages award even further if there is more than one work per medium or if the minimum per work would give an award out of proportion to the infringement.
Where the plaintiff is a collective and the defendant has failed to pay applicable royalties, the statutory damages may be triple to 10 times the royalty owed. The purpose of this provision is to discourage parties from trying to save money by not remitting small amounts of royalties that might otherwise be uneconomic to collect.
Claims for punitive damages are not affected by an election to take statutory damages. Punitive damages may only be awarded in respect of conduct that is of such a nature as to be deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature. Statutory damages are only recoverable for acts of infringement taking place after October 1 1999.
Actions or applications are usually started when a plaintiff becomes aware of an infringement of the copyright in a specific work. However, with the implementation of amendments to the Copyright Act, a plaintiff may seek an injunction to cover not only those infringements that have been proven, but also infringement of any copyright owned or licensed by the plaintiff if the plaintiff can show that the defendant is likely to infringe such other copyright unless enjoined. An injunction can even cover copyright not owned by the plaintiff at the start of the proceedings (but acquired before termination of the proceedings) or for works not even in existence at the time proceedings commenced.
Wide injunctions can be obtained in proceedings commenced but not concluded before October 1 1999 and those commenced after October 1 1999.
For further information on this topic please contact Mark S Mitchell at Lang Michener by telephone (+1 416 360 8600) or by fax (+1 416 365 1719) or by e-mail (email@example.com).
The materials contained on this web site are for general information purposes only and are subject to the disclaimer.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
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