As we may not have correctly understood what is precisely meant by the rule of the shorter term in respect of phonograms and performances, the following explanation endeavours to exhaustively cover the duration of protection under German law for phonogram producers and performing artists from WTO Members. As has been stated above (answer to question 1, I. b) and c)), section 125, paragraph 5 and section 122, paragraph 3 grant to foreign performing artists and phonogram producers protection to the extent provided in international agreements. In this manner, the provision of TRIPS Article 14, paragraph 5, first sentence, is materially implemented in German law. The 50 year term of protection defined therein is applicable to rightholders from WTO Members. By the joint operation of the afore-mentioned provisions, section 125, paragraph 7 and section 126, paragraph 2, second sentence, are overruled. Otherwise the latter provisions would indeed provide for shorter terms on the basis of a comparison of terms of protection.

The question refers to the exclusive reproduction right of phonogram producers under TRIPS Article 14, paragraph 2. This right is enshrined in section 85, paragraph 1 of the Copyright Act. The wording of this section does not specify whether the reproduction may be direct or indirect. Consequently, both ways of reproduction are covered by the exclusive right. In particular, reproduction on the basis of the broadcast of phonograms is covered by this right. This long standing German interpretive practice has been further secured by the necessity to interpret the German copyright law in line with Directive 92/100/EEC, whose Article 7, paragraph 1 obliges Member States to provide for phonogram producers the exclusive right to authorize or prohibit the direct or indirect reproduction of their phonograms. The provisions of the Copyright Act on the reproduction right do not specifically address digital transmission in the context of subscription or interactive services. Significant case law has not yet developed in this area. The extent to which acts of digital transmission or preparatory acts are covered by the reproduction right depends on a judgment on the technical circumstances of these acts. The Federal Government is currently engaged in the examination of the need for legislative clarifications of the notion of reproduction in the digital environment as well as for a new or widened exclusive right of phonogram producers covering acts of digital dissemination.

Assuming that the person operating the digital delivery engages in having the phonogram reproduced in a permanent manner at the receiving end of the digital transmission, that act of reproduction is considered to be covered by the reproduction right of the phonogram producer under section 85.1.

I.Principle of retroactive protection (a)Works The way that authors from WTO Members are protected has been explained in answer to question 1, part I, a). The obligation to provide full retroactive protection of their works (TRIPS Article 9, paragraph 1) in conjunction with Berne Convention Article 18, paragraph 1, is directly applicable in German law. It may be of interest here that Article 18, paragraph 1 of the Berne Convention has been operated in the sense of full retroactive protection in Germany for a long time in favour of new Berne Union members, including the United States of America. On the basis of the "life plus 70 years" rule in the German Copyright Act, Article 7, paragraph 8 of the Berne Convention and on the basis that the substantive obligations of the TRIPS Agreement became effective on 1 January 1996, retroactive protection extends to works of authors who did not die before 1926, unless the country of origin provides for a shorter term in which case that term is not exceeded. As a minimum, the life plus 50 years rule of Article 7, paragraph 1 of the Berne Convention applies. (However, the comparison of the terms of protection allowed under Article 7, paragraph 8 of the Berne Convention is excluded in relation to the United States of America by virtue of a bilateral Agreement of 1892.) (b)Phonograms and performances The extension of the protection of the Copyright Act to phonogram producers and performing artists from WTO Members has been explained in the answer to question 1, part I. b) and c). The obligation to provide full retroactive protection for theses rightholders (TRIPS Article 14, paragraph 6, second sentence, in conjunction with Berne Convention Article 18, paragraph 1) is directly applicable in German law as well. On the basis of TRIPS Article 14, paragraph 5, first sentence, and on the basis that the substantive obligations of TRIPS became effective on 1 January 1996, the retroactive protection extends to fixations that were made or performances that took place not earlier than in 1945. II.Transitional rules No specific transitional rules have been adopted as to the copyright provisions of TRIPS. However, the transitional rules recently adopted in the course of the implementation of various EEC directives apply mutatis mutandis, in the following way: (a)Where protection is established retroactively acts of exploitation that were commenced prior to 1 January 1996, may be continued within the initially intended scope. However, rightholders shall be entitled to equitable remuneration for this continued exploitation (see section 137f, subsection 3). (b)The exclusive rental right of authors of computer programmes shall not extend to those copies of programmes that were acquired by the rental operator for the purpose of rental before 1 January 1996 (see section 137d). (c)The exclusive rental right of authors, phonogram producers and performing artists shall not extend to those copies of phonograms which were acquired or made available to the rental operator for the purpose of rental before 1 January 1996 (see section 137e, sub-section 3).

A review of the enforcement provisions of TRIPS will be subject to a review procedure by the Council on TRIPS at a later stage, after the review of the substantive provisions on copyright, trademarks, patents, etc., see WTO documents IP/C/W/7/Rev.1 of 16 November 1995 and IP/C/5 of 30 November 1995. Therefore, the answer to question 5 will be given at that later council meeting.

With respect to copyright works, phonograms and performers' performances, the Canadian Copyright Act provides national treatment to the rightholders of all WTO Members. Section 2 is now equipped with a new definition of "treaty country" which includes "WTO Member" which is also specifically defined. Section 5.(1)(a)(ii) extends copyright protection to any work (including a sound recording), the author of which was, at the date of the making of the work, a citizen or subject of, or a person ordinarily resident in a treaty country. Section 14 on performers' rights specifically rests on a WTO basis. With respect to performances occurring after a Party has joined the WTO, see Section 14.01(1), and with respect to performances before a Party has joined the WTO, see Section 14.01(4).

No.

Copyright Act, Section 5(3), specifically provides copyright protection for sound recordings. Section 5(4) provides the owner of the copyright in the sound recording with the exclusive right to reproduce the sound recording in any material form. In the WIPO Experts Committees working on the possible Protocol to the Berne Convention and the possible New Instrument for the Protection of the Rights of Performers and Producers of Phonograms, there has yet to be any thorough discussion of the extent to which the reproduction right would apply to specific ephemeral "reproductions" effected as a necessary incident of a digital transmission. Whether such temporary reproductions are covered by the reproduction right is a question on which international consensus is lacking. Similarly, the point was not contemplated during the negotiations for TRIPS, where there is nothing to show that the reproduction right in Article 14(2) applies to a temporary reproduction in random access memory. Nothing in the Canadian Copyright Act precludes such a temporary reproduction from falling under the exclusive reproduction right. However, this point has yet to be clarified with respect to the reproduction right in the Canadian Copyright Act. With reference to the information highway and the new demands of the digital environment, this question has recently been the subject of some domestic discussion in terms of copyright works in general.

Yes.

Canada does provide retroactive protection to pre-existing works, phonograms and performances from WTO Member countries. The term is generally life plus fifty for most works with fifty years for sound recordings and performers' performances. With respect to sound recordings and all original literary, dramatic, artistic and musical works, Copyright Act, Section 5.(1.01) provides that "a country which becomes a [...] WTO Member after the date of the making or publication of a work shall, as of becoming a [...] WTO Member [...] be deemed to have been a [...] WTO Member at the date of the making or publication of the work [...]." However, the foregoing does not apply if copyright protection expired in the country of origin before that country became a WTO Member. A corresponding provision with respect to a performer's performance is contained in Copyright Act, Section 14.01(4). TRIPS, Article 70(7), does not have any effect with respect to Canada because our Copyright Act does not make protection conditional on registration.

The rationale for the definition of "cinematograph" in Section 2 is to permit one copyright term (i.e. life plus fifty) for "scripted" cinematographic works and another copyright term (i.e. fifty years from the end of the calendar year of publication) for "unscripted" cinematographic works, e.g., most news footage and home videos.

Although the Canadian Copyright Act lacks a general adaptation right, the statute gives the author the exclusive right to convert a dramatic work into a novel or another non-dramatic work and to adapt a literary, dramatic, musical or artistic work by cinematograph. Canada complies with Article 12 of the Berne Convention via these rights and by the domestic reproduction right which has been given a very extensive scope by Canadian courts. Accordingly, the Canadian legal system handles by way of the reproduction right much of what some other countries handle by way of a general adaptation right. With respect to adaptation, it is also pertinent that the Canadian Copyright Act specifically gives the author moral rights to the integrity of his work.

Copyright Act, Section 3(1)(b), gives the copyright owner the sole right in the case of a dramatic work, to convert it into a novel. In the case of a novel or other non-dramatic work, or of an artistic work, Section 3(1)(c) gives the copyright owner the sole right to convert it into a dramatic work, by way of public performance or otherwise. With respect to any literary, dramatic, musical or artistic work, Section 3(1)(e) gives the copyright owner the sole right to reproduce, adapt and publicly present the work by cinematograph. In Canada there has never been a case in which a defendant successfully argued that his secondary work is beyond the scope of the rights provided by Copyright Act, Section 3(1), where the reference to the sole right to produce or reproduce the work is very broad. To violate the author's reproduction right, the infringing copy does not have to look the same. Similarity and substantial copying are directly at issue in this context. Furthermore, an adaptation almost invariably begins with an act of reproduction. Letting the exception prove the rule, reference can be made to Section 27(2)(l) which establishes that copyright owners in computer programs have an exclusive adaptation right.

Copyright Act, Sections 16-26, were repealed by Section 59 of the World Trade Organization Agreement Implementation Act, the intellectual property provisions of which entered into force on 1 January 1996.

These are de minimis exceptions of a nature common to the copyright laws of many countries. For example, Copyright Act, Section 27(2)(e), deals with newspaper reports of public lectures which in other countries, e.g., the USA would fall within the broad category of "fair use". It is well known that "fair dealing" under the Canadian Copyright Act is given a narrower interpretation than "fair use" under the corresponding USA statute. Also within the USA category of "fair use" would be the situation provided for by Canadian Copyright Act, Section 27(2)(f), which deals with the public recitation of a reasonable extract of a published work. With reference to the Cultural Property Export and Import Act as cited in Copyright Act, Section 27(2)(h), the relevant exception to the reproduction right is unlikely to affect foreign rightholders and is so limited as to easily meet the economic tests imposed by TRIPS, Article 13. With respect to the public performance of a musical work, Copyright Act, Section 27(3), is much narrower in scope than the classroom exception found in the USA Copyright Law and would accordingly have an easier time meeting the TRIPS, Article 13 tests than would the USA classroom exception.

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.

In an appropriate case, the plaintiff may obtain an ex parte "Anton Piller" order permitting the plaintiff's solicitor to enter the defendant's premises without warning to search for infringing goods and relevant documents. Governed by the same factors as in other actions, interlocutory injunctions are available where just and equitable in the circumstances. A successful plaintiff is generally entitled to a final injunction in addition to the other civil remedies available for infringement of copyright, such as damages and an account of profits. Exemplary damages may be awarded in copyright actions where the defendant has wilfully and flagrantly ignored the plaintiff's legal rights and the process of the court. Copyright Act, Section 38, specifically provides for delivery up and conversion of infringing copies. There are criminal offences and punishment with respect to direct and indirect infringement and prohibitions of making or possessing a plate for the purpose of making infringing reproductions. Furthermore, the court is given power to deal with infringing reproductions, fixations or plates which may be ordered destroyed or delivered up to the copyright owner. Finally, the Criminal Code includes offenses of fraud, conspiracy, and unauthorized use of computers and mischief in relation to computers. These Criminal Code provisions have had some incidental effect with respect to protecting the rights of copyright owners.

Copyright Act, Section 42(3), provides the required authority in the criminal context. In the civil context, the applicable TRIPS obligations are satisfied by Section 38, which allows the copyright owner to take proceedings for recovery of possession of both plates and infringing copies.

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