IP/Q/CAN/1 |
Canadá |
Estados Unidos de América |
4. Please explain whether and how Canada provides full retroactive protection to works, phonograms and performances from other WTO Members, as required by TRIPS Articles 9.1, 14.6 and 70.2, each of which incorporate by reference or rely upon Berne Article 18. Please give the date back to which such protection extends with respect to each category of subject matter. Also, please indicate whether there any categories of works that would be protected by copyright in Canada which are not protected due to the operation of Section 77, and if so, please identify such categories.
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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.
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24/10/1996 |
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IP/Q/CAN/1 |
Canadá |
Estados Unidos de América |
5. In Section 2 of the Copyright Act, “cinematograph” is defined to exclude, for purposes of Section 11.1 of that Act, “works where the arrangement or acting form or the combination of incidents represented give the work an original character”. Please explain the meaning of this definition and the relationship of these works to Section 11.1, which appears to relate to duration.
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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.
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24/10/1996 |
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IP/Q/CAN/1 |
Canadá |
Estados Unidos de América |
6. Please explain whether the listing of copyright rights in Section 3(1) of the Copyright Act, which explicitly includes certain types of adaptations, also encompasses the general right “of authorizing adaptations, arrangements and other alterations” required by Berne Article 12 (as incorporated through TRIPS Article 9.1)
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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.
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24/10/1996 |
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IP/Q/CAN/1 |
Canadá |
Estados Unidos de América |
[Follow-up question]
Please explain how Canadian law handles by way of the reproduction right much of the adaptation right required by Berne Article 12, and to what extent.
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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.
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24/10/1996 |
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IP/Q/CAN/1 |
Canadá |
Estados Unidos de América |
7. Please explain how Canada reconciles the authority provided with regard to licenses for publication by other than the copyright owner through Sections 16 to 21 and 22 to 26 of the Copyright Act with Berne Article 9(2) and TRIPS Article 13, which require limitations and exceptions to exclusive rights to be limited to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rightholder.
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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.
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24/10/1996 |
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IP/Q/CAN/1 |
Canadá |
Estados Unidos de América |
8. Please explain how the operation of Sections 27(2)(e), 27(2)(f), 27(2)(h), and 27(3) of the Copyright Act complies with Berne Article 9(2) and TRIPS Article 13, which require limitations and exceptions to exclusive rights to be limited to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rightholder.
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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.
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24/10/1996 |
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IP/Q/CAN/1 |
Canadá |
Estados Unidos de América |
[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?
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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.
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24/10/1996 |
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IP/Q/CAN/1 |
Canadá |
Estados Unidos de América |
9. Please explain the criminal and civil remedies available for copyright infringement and the extent to which they fully implement the obligations in TRIPS Articles 41, 45, 50 and 61. In the response, please specify, inter alia, whether these remedies may include the seizure, forfeiture and destruction of infringing articles and equipment used to make the infringing articles, as required by Article 46 and 61, and the manner in which the grant of civil provisional relief is provided in accordance with TRIPS Article 50.
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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.
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24/10/1996 |
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IP/Q/CAN/1 |
Canadá |
Estados Unidos de América |
[Follow-up question]
Do remedies for infringement include forfeiture and destruction of equipment used to make infringing articles, in both the civil and criminal contexts?
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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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24/10/1996 |
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IP/Q/SVK/1 |
República Eslovaca |
Estados Unidos de América |
1. Please explain whether and how the law of the Slovak Republic provides protection for works, phonograms and performances from other WTO Members, and whether and how it does so on the basis of national treatment, as required by TRIPS Article 3 (generally, with respect to all copyrights and neighbouring rights) and Article 9.1 (incorporating Berne Article 5(1)). In particular, please explain how national treatment is afforded with respect to the distribution of levies for private copying under the relevant provisions of the law of the Slovak Republic.
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24/10/1996 |
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IP/Q/SVK/1 |
República Eslovaca |
Estados Unidos de América |
2. Does the Slovak Republic apply the "rule of the shorter term" to phonograms and performances from other WTO Members? If so, please explain how you justify such action under TRIPS Article 4.
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24/10/1996 |
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IP/Q/SVK/1 |
República Eslovaca |
Estados Unidos de América |
3. Please explain whether and how the Slovak Republic protects against both the direct and indirect reproduction of phonograms as required by TRIPS Article 14.2, including by digital transmission in the context of interactive services.
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24/10/1996 |
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IP/Q/SVK/1 |
República Eslovaca |
Estados Unidos de América |
4. Please explain whether and how the Slovak Republic provides full retroactive protection to works, phonograms and performances from other WTO Members, as required by TRIPS Articles 9.1, 14.6 and 70.2, each of which incorporate by reference or rely upon Berne Article 18. Please give the date back to which such protection extends with respect to each category of subject matter.
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24/10/1996 |
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IP/Q/JPN/1 |
Japón |
Suiza |
1. Please explain whether and how levies for private copying are distributed to foreign right holders.
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The system of Private Recording Compensation was introduced by the amendment to the Japanese Copyright Law in 1992, and was started in 1993 (so far only for "sound recording", excluding "visual recording").
The compensation is collected by a collective society called the SARAH (Society for the Administration of Remuneration for Audio Home Recording), which began the distribution of compensation money in 1994. The compensation is distributed to three collective societies in Japan, namely those of (1) music copyright owners, (2) performers and (3) producers of phonograms.
These Japanese collective societies then distribute part of the compensation to their overseas counterparts in accordance with the negotiated contracts based on the statistical outcomes and data of sampling surveys.
We have been informed that the three collective societies have already reached contracts with their overseas counterparts, except for one. Negotiation between the Japanese performers' organization and its counterpart in the United States is still in process.
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24/10/1996 |
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IP/Q/JPN/1 |
Japón |
Suiza |
2. Please indicate where one can find the provisions on border measures and provisional measures.
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The legal basis of "boarder measures" can be found in the Japanese Copyright Law and the Customs Tariff Law. Article 113 of the Japanese Copyright Law, stipulates that it is deemed an infringement on a copyright to import into Japan, for distribution, objects made by an act which would constitute an infringement on copyright at the time of such importation if they were made in Japan.
The importation of objects made by copyright infringement is prohibited by Article 21 of the Japanese Customs Tariff Law and shall be punished by Article 109 of the Japanese Customs Law.
As for the due procedures, special requirements related to border measures are provided by Articles 21bis and 21ter of the Customs Tariff Law.
Provisions on "provisional measures" can be found in the Code of Civil Preservative Procedure which is one of general laws related to civil remedies. The Code is included in WTO document IP/N/1/JPN/1 titled "Notification of Laws and Regulations under Article 63.2 of the Agreement", which was issued on 1 March 1996.
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24/10/1996 |
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IP/Q/CAN/1 |
Canadá |
Suiza |
1. How do the Canadian collecting societies organize the distribution of monies owed to foreign authors?
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There is nothing in the Canadian Copyright Act that imposes business practice on "les sociétés de gestion canadiennes" with respect to how they organize the distribution of monies owed to foreign authors. Some of the Canadian societies do, however, indicate the process in general terms. Generally, they make payments to foreign collectives which then distribute the revenues to the authors in that country.
For example, SOCAN, the Society of Composers, Authors and Music Publishers of Canada, indicates that "under the terms of the [Canadian] Copyright Act, [it] collects tariff fees from the users on behalf of its members and foreign copyright owners it represents in Canada. These fees are then systematically distributed as performance royalties to creators and publishers whose works have been performed and which SOCAN has identified and credited through its own procedures. When [the Canadian creator's] work is performed and identified overseas, SOCAN forwards the monies received from foreign societies directly to ... the [Canadian] copyright owner. And when a foreign work is performed here, SOCAN sends royalties to the copyright owner's own domestic society".
CANCOPY acts on behalf of artists, writers and publishers with respect to the reproduction right. A licensing fee or royalty is collected and given back to the artist, writer or publisher. CANCOPY represents published works from around the world through agreements with international reproduction rights organizations. (As recently as July 1996, CANCOPY signed a reciprocal agreement with a collective in another European country in which the two organizations agreed to represent each other in their own country as well as collect and exchange royalties). Generally, royalties collected in Canada are distributed directly to Canadian affiliates regardless of the country of publication. Royalties collected abroad are distributed to Canadian rightholders through CANCOPY.
For further information, SOCAN material can be accessed at its WEB page: httb://www.socan.ca/ and CANCOPY at http://cancopy.com/.
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24/10/1996 |
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IP/Q/NZL/1 |
Países Bajos |
Unión Europea |
1. Does New Zealand apply its copyright law to broadcasting organizations having their headquarters in the territory of a contracting state of the Rome Convention (1961) where the broadcasting organization concerned is not incorporated in a contracting state (Article 2.2 of the TRIPS Agreement in conjunction with Article 6 Rome Convention)? If the answer is negative, please explain the reasons for this.
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Yes, New Zealand does so. A broadcast qualifies for copyright if:
-it is made from a prescribed foreign country (Section 20 of the Copyright Act 1994); and
-the author is either: a citizen or subject, a domiciled or resident individual, or a body incorporated under the law, of a prescribed foreign country. A work of joint authorship qualifies under this section if any of the authors meet these requirements (Section 18).
It should be noted that:
-an author is defined as the person who makes or relays a broadcast and can be a natural person or a body corporate (Section 5);
-where a broadcast is made by more than one person then it is to be treated as a work of joint authorship (Section 6); and
-a prescribed foreign country is one that is included in one of the schedules of the Copyright (Application to Other Countries) Order 1995 which came into force on 1 January 1996.
In accordance with TRIPS Article 1.3, New Zealand has made a notification in terms of Article 6(2) of the Rome Convention.
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24/10/1996 |
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IP/Q/NZL/1 |
Países Bajos |
Unión Europea |
[Follow-up question]
What happens if a company is not incorporated in New Zealand or another WTO Member but has its headquarters or principal place of business in New Zealand or another WTO Member?
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Under New Zealand law we would not regard a company as having its headquarters or principal place of business in a country unless it was also incorporated in that country.
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24/10/1996 |
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IP/Q/NZL/1 |
Países Bajos |
Unión Europea |
2. Does New Zealand intend to repeal § 76 of the Copyright Act 1994 (Article 8 of the TRIPS Agreement)?
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The Government does not currently have any intention to repeal Section 76 of the Copyright Act 1994.
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24/10/1996 |
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IP/Q/NZL/1 |
Países Bajos |
Unión Europea |
[Follow-up question]
On which provision of the Berne Convention does New Zealand base its exception from the protection of literary and artistic works relating to medicines (Article 76)?
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The Berne Convention does not cover distribution rights. Accordingly, the Berne Convention is not applicable to Section 76.
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24/10/1996 |
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