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 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.

Under Section 3 of the Canadian Copyright Act, the right to publish a work together with the right to publicly present a work by cinematography together fulfil the obligations of TRIPS, Article 9(1), and Berne Convention, Article 14.

In this respect, any relevant right of the author would have been licensed or assigned to the maker of the cinematographic work. Canada does not interpret the Berne Convention in a fashion that requires authors to be given a distribution right on the same footing as, e.g., the rights of public performance and communication to the public. Our reading is that any relevant distribution right is limited to a right of first distribution which implicitly passes to the maker of the cinematographic work by reason of the author's consent to adaptation.

The Canadian Copyright Act does not confer the ownership of copyright on all of the individuals (e.g., screen writers, cinematographers, etc.) who bring contributions to the making of the cinematographic work. With respect to the cinematographic work, moral and economic rights belong to the film's author. With respect to any underlying copyright work included in the cinematographic work, moral and economic rights remain with the author of the underlying work, subject to the normal rules with respect to licensing and assignment. Although the Copyright Act is fully equipped in this regard, it should be recalled that the moral rights in the Berne Convention have not been carried over into TRIPS.

Although the point is clear from case law, the Copyright Act nowhere explicitly provides that the protection accorded to compilations of data or other material does not extend to the data or material itself. With respect to compilations of data or other material, Canada's laws are fully consistent with TRIPS requirements.

TRIPS, Article 11, applies to the "commercial rental" of computer programs and TRIPS, Article 14(4) to the "commercial rental" of phonograms. With respect to both computer programs and phonograms, the Canadian Copyright Act provides an exclusive rental right which applies subject to certain criteria implementing the TRIPS reference to the qualification "commercial". This word is in part translated by the Canadian reliance on the yardstick of "motive of gain". In practical terms, it is difficult to conceive of a commercial rental where there is no motive of gain. Accordingly, the Canadian formula meets the requirements of TRIPS, Articles 11 and 14(4).

There is yet no case law because the legislation came into force only on 1 January 1994. Practically speaking, the law's effect has been to put an end to the business of renting our sound recordings and software in Canada. As might be expected, libraries continue to make sound recordings available in terms of public lending. "Motive of gain" is possibly more favourable to the rightholder because it is arguably broader than the TRIPS reference to "commercial". For example, "motive of gain" might catch a charity deciding to rent out sound recordings as a fund-raising exercise.

In Canada, the rental of cinematographic works is governed by the business arrangements effected between the owners of copyright in cinematographic works and an extensive system of rental outlets. Whether domestic or foreign, the copyright owners in cinematographic works are largely pleased with the present system and have not, to any significant extent, asked for the introduction of an exclusive rental right with respect to their films. Similarly, the owners of the copyright in cinematographic works have not complained to the Canadian government about widespread copying of their works nor have they alleged that renting is materially impairing their exclusive reproduction right. In this regard, Canada's Copyright Act is fully consistent with the requirements of TRIPS, Article 11: Rental Rights.

With respect to the situation described, copyright under the Canadian Copyright Act would expire 75 years after the making of the work.

Yes, the term of 75 years from making would apply. In examining whether Canada's legislation on this point is consistent with TRIPS, Article 12, it was taken in account that TRIPS, Article 12, applies with respect to categories of works. However, Berne Article 7(3) and Section 6 of the Canadian Copyright Act apply with respect to the much more limited case of circumstances of authorship. In any event, the economic impact here is not likely to be very significant because we are discussing the very narrow case of anonymous or pseudonymous works left unpublished for more than a quarter of a century.

The TRIPS border enforcement measures apply with respect to pirated copyright and counterfeit trademark goods. The relevant section of the Copyright Act only applies in narrowly defined circumstances and with respect to the importation of copies which were legitimately made in the country of manufacture, notwithstanding any rights under the Canadian Copyright Act.

The provisions of the Japanese Copyright Law (Articles 6 to 9bis) fully comply with the principle of national treatment required by the Berne Convention, although it does not use the term "country of origin" used in Article 5 of the Berne Convention.

Article 33 of the Japanese Copyright Law allows the reproduction of works in school textbooks, and Article 34 allows broadcasting or wire diffusion of works for school education and reproduction of works in textbooks for such programmes. However, these acts can be done under the strict condition: "only to the extent deemed necessary for the purpose of school education". Also, the user shall announce the use to the author in order to provide the author with a chance to exercise his/her moral rights, and shall pay compensation to the copyright owner. Article 35 allows the person who is in charge of teaching in educational institutions to reproduce a work to the extent deemed objectively necessary for the purpose of use in the course of teaching, provided that such reproduction does not unreasonably prejudice the interests of the copyright owner in the light of the nature of the work as well as the number of copies, etc. These Articles (Articles 33 to 35) have been carefully established and applied under strict interpretation so as to comply with Articles 9(2) and 10(2) of the Berne Convention and Article 13 of the TRIPS Agreement.

According to Articles 33 and 34, it is the user himself who shall inform the author of the use based on these articles, and the user shall pay the compensation directly to the copyright owner. This system covers the works of WTO origin. Even in the ordinary use of existing works under the authorization of the copyright owner, it is the user himself who should find and contact the author and copyright owner and pay the fee if necessary. In addition, the number of companies making use of Articles 33 and 34 is limited, and these companies are in close contact with the Ministry of Education, which ensures the proper functioning of the system.

When a teacher uses a work for teaching without the authorization of the copyright owner based on Article 35, he or she shall, according to Article 48(1)(3), clearly indicate the source "provided that standard practice so requires". The objective of Article 48(1)(3) is to clarify that the teacher is not required to indicate the source when it is practically impossible and this provision is clearly consistent with the provision of Article 10(3) of the Berne Convention.

Article 41 of the Japanese Copyright Law is to limit the copyright of a work in the use for the purpose of reporting current events done by such organizations as newspaper companies and broadcasting organizations. In such cases, the work can be used by means of photography, cinematography and broadcasting as well as such "other means" as newspaper articles and wire diffusion. However, they are allowed only "to the extent justified by the informatory purpose", and, therefore, this provision is not to allow such uses unlimitedly.

Article 41 of the Japanese Copyright Law does not allow unlimitedly the reproduction of a literary work in a newspaper, magazine and others for the purpose of "reporting current events". The use allowed under Article 41 is only "to the extent justified by the informatory purpose". This article was stipulated anticipating such cases as the broadcasting of a sporting event with the music used in that sporting event, and the reproduction of a stolen picture on a newspaper. Although Article 41 does not stipulate any differentiated range of use in terms of the category of works, in the case of literary works, it is extremely hard to imagine a case, in which it is allowed by this article to reproduce a whole literary work in a newspaper, magazine, etc "to the extent justified by the informatory purpose".

Article 41 of the Japanese Copyright Law allows reproduction and exploitation of a work seen or heard in the course of an event and of "a work implicated in the event" for the purpose of reporting current events done by such organizations as newspaper companies and broadcasting organizations. "A work implicated in the event" means a work which constitutes the event as the subject matter. For example, when a theft of a picture happens, that picture is the work "implicated in the event". Therefore, Article 41 does not allow the reproduction of works which merely relate to the event.

As to Article 14 of the Supplementary Provisions of Law No. 48 of 6 May 1970 (the Japanese Copyright Law), the Copyright Council of the Agency for Cultural Affairs of the Japanese Government already supported the abolition of the said Article. Taking this into consideration, the government of Japan is now examining the result of this Council.

Although Article 14 of the Japanese Copyright Law refers only on the presumption of authors, a person or body corporate whose name appears on a cinematographic work is presumed to be the maker of that work in practice, and there has been no practical or judicial problem on this point.