United States of America

Canada

Copyright and Related Rights

[Follow-up question] We understand that every country's system has exceptions to rights. The question is, as to each: does it go too far? Our questions are not directed to "fair dealing" generally, but to specific exceptions in Canada's law. Please explain why these exceptions comply with the permissible limitations on rights in Berne and TRIPS. In particular: -Section 27(2)(e) (dealing with publication in newspaper of report of public lecture). Has the text of this section been limited in operation or application in any way, such as with regard to the topic of the lecture, the amount copied from the lecture, the commerciality of the use, or the effect on the market for the lecture? We note that this exception appears to go beyond "fair dealing" in a newspaper summary, as permitted under section 27(2)(a.1). -Section 27(2)(f) (dealing with public reading or recitation by one person of extract from public work). Has the text of this section been limited in operation or application in any way, such as with regard to purpose of the reading or recitation, or its commercial nature? -Section 17(2)(h) (dealing with reproduction for deposit in institutions). How are permissible reproductions limited by the Culture Property Export and Import Act? -Section 27(3) (complete exemption for public performance of musical works by churches, colleges or schools, and religious, charitable or fraternal organizations, whenever done for religious, educational or charitable objects). This is a big market for a category of commercially valuable works. Has the text of this section been limited in operation or application in any way, such as with regard to the type of the musical work, the place or context of the particular use, or any direct charge to the audience?

With respect to Section 27(2)(e), the relevant Berne/TRIPS test would be the impact on the rightholder not whether the use is commercial or non-commercial. A report in a newspaper is likely to enhance, not diminish, the economic returns from lecturing. In any event, the lecturer can close the exceptions by posting the stipulated notice. Furthermore, the exception is limited to a "report" (i.e., not a verbatim reproduction) in only one medium. To date, there has been no complaint from lecturers with respect to this feature in our Copyright Act. For Section 27(2)(f), the relevant test is again not commercial or non-commercial use, but rather whether the limitation hurts the rightholder. In this regard, the public recitation of an extract from a novel is likely to enhance the author's returns from sales of copies of the book. This practice does not unreasonably interfere with the normal commercial exploitation of the work. The stipulation of a "reasonable extract" is an appropriate limitation in this context where the lost economic value to the rightholder is not significant. It would appear that there is no Canadian case law with respect to this provision. The exception in Section 27(2)(h) is necessary inter alia because our Copyright Act gives perpetual protection to unpublished manuscripts. It is difficult to conceive of a case where the use of this exception would fail to meet the tests set out in Berne, Article 9(2), and TRIPS, Article 13. However, it is possible to conceive of instances where the rightholder would benefit, e.g., via the official preservation of a cinematographic work otherwise totally lost. With respect to Section 27(3), it should be observed that churches tend to use public domain works and, if otherwise, there is a reluctance to interfere with religious worship. Use for an educational object by colleges or schools is comparable to educational exceptions in other countries, e.g., the USA. When a school holds a dance it must apply to the relevant Canadian copyright collective which provides a performance licence on a reduced tariff. There may be some problem with respect to unauthorized use by charitable and fraternal organizations which is an aspect that will be looked at afresh.