The customs authority, which is the General Directorate of Customs, may order the measure pursuant to Article 46 of the draft Law on Copyright and Neighbouring Rights and Article 35 of the draft Law on Trademarks with respect to goods that constitute any of the infringements defined in those Laws. The measure may be ordered by the customs authority on its own initiative or upon an application by the right holder or the Public Prosecutor. Both Articles provide that the measure may be ordered if the customs authority is convinced on the basis of prima facie evidence that such goods (whether imports or exports) constitute infringements of any of the intellectual property rights of the right holder. However, the procedure does not apply to goods in transit or to de minimis imports or goods put on the market in another country by or with the consent of the right holder. This administrative procedure does not preclude the right to resort to the court in the first place to obtain a court order for the measure . The application if made by the right holder or the Public Prosecutor must include a sufficiently detailed description of the goods to make them readily recognisable by the customs authority. The right holder, if he is the applicant, is required to submit adequate evidence to satisfy the customs authority that there is prima facie an infringement of his intellectual property right. The customs authority has the authority to require the applicant to provide security. The objective is to protect both the defendant and the customs authority and to prevent abuse. The customs authority is required to decide within a period not exceeding 3 days on whether to accept the application. The customs authority is required to promptly notify the applicant and the importer of its decision to suspend the release of the goods. A petition to challenge the decision may be submitted to the court within 10 days. The goods shall be released if within 10 working days after the right holder has been served with a notice of the suspension; the customs authority is not informed that the right holder has initiated proceedings leading to a decision on the merits of the case. However, the release of the goods will only be authorised if all the conditions for importation or exportation as the case may be have been complied with. The 10 days time limit may be extended in appropriate cases for a further period not exceeding 10 days at the discretion of the General Director of Customs. The customs authority is prohibited from refusing to provide the right holder and the importer or exporter, if the goods are destined for export, to be notified promptly. The decision to suspend the release of the goods remains in force unless subsequently annulled by the court or after the lapse of 10 days without the customs authority being informed that proceedings leading to a decision on the merits of the case have been initiated. The customs authority is required to provide both the right holder and the importer or exporter, as the case may be, sufficient opportunity to inspect the goods detained. Further regulatory matters with respect to the form, payable fees, manner in which applications are to be submitted and how they are to be processed together with the amount of security to be provided will be the subject of an Implementing Ministerial Regulation. The fee to be determined in the Implementing Regulation is not expected to be more than BD 30 (US$80). The importer or exporter – as the case may be – and the owner of the goods may, through the court, seek equitable compensation based on Article 158 of the Civil Code for any injury caused to them through the wrongful detention of the goods.

Border enforcement required under the TRIPS Agreement is available only to trademarks and copyright and neighbouring rights infringement.

Article 46 of the draft Law on Copyright and Neighbouring Rights and Article 35 of the draft Law on Trademarks both provide that the customs authority may act upon its own initiative or upon request by the public prosecutor to suspend the release of goods in respect of which the customs authority has acquired prima facie evidence that the goods constitute an infringement of any of the intellectual property rights provided for under those draft Laws.

Article 38 of the draft Law on Trademarks provides for criminal sanctions to infringement of Trademarks Law. The penalty is imprisonment for a term not less than 3 months and not more than one year or a fine of not less than BD 500 and not more than BD 2000 or to both fine and imprisonment. If the offender repeats an offence, the upper limit of both the fine and imprisonment are doubled and in addition the court has the authority to order the closure of the premises, at which the offence was facilitated, for a period between 15 days to six months and to order the verdict to be published in at least one daily newspaper at the expense of the offender. Articles 49, 50 and 51 of the draft Law on Copyright and Neighbouring Rights provide for criminal sanctions to infringements of copyright and neighbouring rights. The penalties are identical to those for trademarks outlined above.

Article 52 of the draft Law on Copyright and Neighbouring Rights and Article 38 of the draft Law on Trademarks provide that the court has the authority to order the seizure, forfeiture and destruction of infringing goods and any materials and implements which has been used for the commission of the offence. The draft Laws do not enumerate the circumstances in which those remedies would be imposed. Hence, such remedies would be imposed subject to the discretion of the court and it is to be expected that the court would impose them where it considers them appropriate and proportionate taking into account the gravity of the offence and the overall circumstances of the offence, type of goods constituting the infringement, damage and losses to the right holder. As to the material and implements used for the infringement, it is to be expected that the court will take into account their intended use and the extent they have been used for committing the infringement. Draft Laws of other forms of intellectual property rights contain identical provisions to those for trademarks and copyright and neighboring rights. These provisions are: a) Patents & Utility Models: Article 41 b) Geographical indications: Article 13 c) Protection of Trade Secrets: Article 7 d) Industrial Designs: Article 19 e) Layout-Designs of Integrated Circuits: Article 18 f) Protection of Breeders of New Varieties of Plants: Article 25

The draft Laws for all forms of intellectual property rights provide for identical criminal sanctions to those for trademarks and copyright and neighbouring rights outlined in the response to questions 30 and 31 above. The legal basis is the following provisions of the respective draft law: a) Patents and Utility Models Article 41 b) Geographical Indications Article 2 and 13 c) Protection of Trade Secrets Article 7 d) Industrial Designs Article 19 e) Layout-Designs of Integrated Circuits Article 18 f) Protection of Breeders of New Varieties of Plants Article 25 All the above provisions also provide that the court has authority to order the seizure, forfeiture and destruction of infringing goods and any materials and implements, which have been used for the commission of the offence.

Statistics are not available.

Statistics are not available.

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.