European Union

Canada

IP Enforcement

9. Given that Canada's Copyright Board may order a civil remedy (i.e. the payment of a tariff as compensation for the infringement of copyright), does the Copyright Board's constitutive Act, regulations or rules of procedure comply with Canada's obligation to ensure administrative authorities are empowered to: (a) identify and protect confidential information (Article 49 in conjunction with Article 42 of the TRIPS Agreement)? (b) order a party to produce relevant evidence (Article 49 in conjunction with Article 43.1 of the TRIPS Agreement)? (c) order the infringer to pay damages "adequate to compensate for the injury the right holder has suffered" (Article 49 in conjunction with Article 45.1 of the TRIPS Agreement)? (d) order the infringer to pay the right holder's expenses (Article 49 in conjunction with Article 45.2 of the TRIPS Agreement)? (e) to grant injunctions (Article 49 in conjunction with Article 44 of the TRIPS Agreement)?

The Copyright Board may not order a civil remedy. Rather, it establishes tariffs. Once a tariff is established, a right holder may have recourse to the courts, through judicial proceedings, to enforce its rights. Thus Article 49 of the TRIPS Agreement would not apply. By way of information, the Board: (a) is empowered to protect confidential information, in the exercise of the general powers of an administrative tribunal; (b) is empowered to order a party to produce relevant evidence, in the exercise of the general powers of an administrative tribunal; (c) may not order damages; (d) may not order costs; and (e) may not grant injunctions. The courts would have power to grant the remedies under (c), (d) and (e).