Copyright: Its History and Its Law

"Musical work"

The expression "musical work" means a musical work in which there is a subsisting copyright:

"Plates"

The expression "plates" includes any stereotype or other plates, stones, matrices, transfers, or negatives used or intended to be used for printing or reproducing copies of any musical work: Provided that the expressions "pirated copies" and "plates" shall not, for the purposes of this Act, be deemed to include perforated music rolls used for playing mechanical instruments, or records used for the reproduction of sound waves, or the matrices or other appliances by which such rolls or records respectively are made:

"Chief officer of police"

The expression "chief officer of police" —

(a) with respect to the City of London, means the Commissioner of City Police;

53 & 54 Vict. c. 45

(b) elsewhere in England has the same meaning as in the Police Act, 1890;

53 & 54 Vict. c. 67

(c) in Scotland has the same meaning as in the Police (Scotland) Act, 1890;

(d) in the police district of Dublin metropolis means either of the Commissioners of Police for the said district;

(e) elsewhere in Ireland means the District Inspector of the Royal Irish Constabulary:

"Court of summary jurisdiction"

The expression "court of summary jurisdiction" in Scotland means the sheriff or any magistrate of any royal, parliamentary, or police burgh officiating under the provisions of any local or general police Act.

Short title

4. This Act may be cited as the Musical Copyright Act, 1906.

7. CANADIAN COPYRIGHT MEASURE, 1911

An Act Respecting Copyright

Short title

1. This Act may be cited as The Copyright Act, 1911.

INTERPRETATION

Definitions:

2. In this Act, unless the context otherwise requires, —

"Minister"

"Minister" means the Minister of Agriculture;

"Department"

"Department" means the Department of Agriculture;

"Legal representatives"

"legal representatives" includes heirs, executors, administrators and assigns, or other legal representatives;

"Literary" and other works

"literary work" includes maps, charts, plans, and tables;

"dramatic work" includes any piece for recitation, choregraphic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise, and any cinematograph production where the arrangement or acting form or the combination of incidents represented give the work an original character;

"literary work," "dramatic work" and "musical work" includes records, perforated rolls or other contrivances by means of which a work may be mechanically performed or delivered;

"artistic work" includes works of painting, drawing, sculpture and artistic craftsmanship, and architectural works of art, and engravings and photographs;

"work of sculpture" includes casts and models;

"architectural work of art" means any building or structure having an artistic character or design, in respect of such character or design, but not in respect of the processes or methods of its construction;

"Engravings"

"engravings" include etchings, lithographs, woodcuts, prints and other similar works, not being photographs;

"Photograph"

"photograph" includes photo-lithograph and any work produced by any process analogous to photography;

"Cinematograph"

"cinematograph" includes any work produced by any process analogous to cinematography;

"Pirated"

"pirated," when applied to a copy of a work in which copyright subsists, means any copy made without the consent or acquiescence of the owner of the copyright, or imported contrary to this Act;

"Publication"

"publication" means the issue of copies to the public and does not include the performance in public of a dramatic or musical work, the delivery in public of a lecture, the exhibition in public of an artistic work, or the construction of an architectural work of art;

"Performance"

"performance" means any acoustic representation of a work and any visual representation of any dramatic action in a work, including such a representation made by means of any mechanical instrument;

"Delivery"

"delivery," in relation to a lecture, includes delivery by means of any mechanical instrument;

"Plate"

"plate" includes any stereotype or other plate, stone, matrix, transfer, or negative used or intended to be used for printing or reproducing copies of any work, and any matrix or other appliance by which records, perforated rolls or other contrivance for the acoustic representation of the work are made or intended to be made;

"Lecture"

"lecture" includes address, speech and sermon;

"Copyright"

"copyright" means the sole right to produce or reproduce any original literary, dramatic, musical or artistic work or any substantial part thereof in any material form whatsoever and in any language; to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public; if the work is unpublished, to publish the work; and shall include the sole right, —

(a) in the case of a dramatic work, to convert it into a novel or other non-dramatic work;

(b) in the case of a novel or other non-dramatic work, to convert it into a dramatic work, either by way of multiplication of copies of by way of performance in public;

(c) in the case of a literary, dramatic or musical work, to make any record, perforated roll or other contrivance by means of which the work may be mechanically performed, and to authorize any such acts as aforesaid.

Publication, performance or delivery in public

(2.) For the purposes of this Act (other than those relating to infringements of copyright), a work shall not be deemed to be published or performed in public, and a lecture shall not be deemed to be delivered in public, if published, performed in public or delivered in public without the consent or acquiescence of the person entitled to authorize its publication, performance in public or delivery in public.

Simultaneous publication

(3.) For the purposes of this Act a work shall be deemed to be first published in Canada, notwithstanding that it has been published simultaneously in some other country, unless the publication in Canada is colourable only and is not intended to satisfy the reasonable requirements of the public, and a work shall be deemed to be published simultaneously in two countries if the time between the publication in one such country and the publication in the other country does not exceed fourteen days.

Copyright to bona fide resident

(4.) Where the making of a work has extended over a considerable period the conditions of this Act conferring copyright shall be deemed to have been complied with if the author was, during any substantial part of that period, a bona fide resident of Canada.

CONDITIONS OF COPYRIGHT

Conditions of copyright in Canada

3. Subject to the provisions of this Act, copyright shall subsist in Canada for the term hereinafter mentioned in every original literary, dramatic, musical and artistic work the author whereof was, at the date of the making of the work, a bona fide resident of Canada, but in no other works except so far as the protection conferred by this act is extended by order in council thereunder.

Notice of copyright —

(2.) Every copy of a work published in Canada shall be printed or made in Canada, and shall bear notice of copyright —

Of books, engravings, photographs, maps, etc.

(a) if the work is a book or other printed publication, on the title-page or on the page immediately following; or,

(b) if the work is a literary work (other than a book, or other printed publication), or a musical work, engraving, photograph or cinematograph, on the face thereof; or,

(c) if the work is a volume of maps, charts, plans, tables, music, engravings or photographs, on the title-page or first page thereof:

in the words "Copyright, Canada, 19__, by A. B."

Of paintings, sculpture, etc.

(3.) Every painting, drawing or work of sculpture published in Canada shall be made in Canada, and the signature of the author shall be notice of copyright.

INFRINGEMENT

Infringement of copyright

4. Copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything the sole right to do which is by this Act conferred on the owner of the copyright: Provided that the following acts shall not constitute an infringement of copyright; —

Exceptions

(i) any fair dealing with any work for the purposes of private study, research, criticism or review;

(ii) where the author of an artistic work is not the owner of the copyright therein, the use by the author of any mould, cast, sketch, plan, model or study made by him for the purpose of the work, provided that he does not thereby repeat or imitate the main design of the work;

(iii) the making of paintings, drawings, engravings or photographs of a work of sculpture or artistic craftsmanship, if situate in a public place or building, or the making of paintings, drawings, engravings or photographs (which are not in the nature of architectural drawings or plans) of any architectural work of art;

(iv) the publication in a newspaper of a report of a lecture delivered in public, unless the report is prohibited by notice given either —

(a) orally, at the beginning of the lecture, or, if the lecture is one of a series of lectures given by the same lecturer on the same subject at the same place, at the beginning of the first lecture of the series; or

(b) by a conspicuous written or printed notice affixed, before the lecture, or the first lecture of the series, is given, on the entrance doors of the building in which the lecture or series of lectures is given, or in a place near the lecturer.

(v) the representing of any scene or object, notwithstanding that there may be copyright in some other representation of such scene or object.

Infringement by sale, etc.

(2.) Copyright in a work shall also be deemed to be infringed by any person who sells or lets for hire, or exposes, offers or has in his possession for sale or hire, or distributes or exhibits in public, or imports for sale or hire into Canada, any work which to his knowledge infringes copyright or would infringe copyright if it had been made in Canada.

Infringement by public performance

(3.) Copyright in a work shall also be deemed to be infringed by any person who for private profit permits a theatre or other place of entertainment to be used for the performance in public of the work without the consent of the owner of the copyright, unless he proves that he acted innocently.

TERM OF COPYRIGHT

Term of copyright

5. The term for which copyright shall subsist, shall, except as otherwise provided by this Act, be the life of the author and a period of fifty years after his death unless previously determined by first publication elsewhere than in Canada, except as otherwise provided by this Act, or by failure to comply with any other requirement of this Act.

LICENSES TO REPUBLISH

License to republish or perform work in public granted by Minister upon petition

6. If, at any time after a work has been published or performed in public, a petition is presented to the Minister by any person interested, alleging that, by reason of the withholding of the work from the public or of the price charged for copies of the work or for the right to perform the work in public, the reasonable requirements of the public with respect to the work are not satisfied, and praying for the grant of a license to reproduce the work or perform the work in public, the Minister shall consider the petition, and of, after inquiry, he is satisfied that the allegations contained therein are correct, and if within a reasonable time no remedy is provided by the owner of the copyright, he may grant to the petitioner a license to reproduce or perform the work in public in Canada on such terms as respects price and payment of royalties to the owner of the copyright in the work, and otherwise, as the Minister thinks fit.

Appeal

(2.) Any decision of the Minister under this section shall be subject to appeal to the Exchequer Court of Canada, and the decision of that court shall be final.

Ownership of copyright

OWNERSHIP AND ASSIGNMENT OF COPYRIGHT

7. Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein:

Provided that —

(a) where in the case of an engraving, photograph or portrait the work was ordered by some other person and was made for valuable consideration in pursuance of that order, then, in the absence of any agreement in writing to the contrary the person by whom the work was ordered shall be the first owner of the copyright;

(b) where the author was in the employment of some other person and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright.

Assignment of copyright

(2.) The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations to any particular place, and either for the whole term of the copyright or any part thereof, and may grant any interest in the right by license, but no such assignment or grant shall be valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by his duly authorized agent.

Registration of assignment or license

(3.) Any grant of an interest in a copyright, either by assignment or license, shall be adjudged void against any subsequent assignee or licensee for valuable consideration without actual notice unless such assignment or license is registered in the manner directed by this Act before the registering of the instrument under which the subsequent assignee or licensee claims.

Duplicate copies

(4.) For the purposes of this Act as to registration, any grant of an interest in a copyright, either by way of assignment or license, shall be made in duplicate.

Application for registration

(5.) Application for registration of a grant of any interest in a copyright, either by way of assignment or license, shall be made by production of both duplicates to the Department and payment of the prescribed fee. One duplicate shall be retained at the Department and the other shall be returned to the person depositing it, with a certificate of registration.

Assignee or licensee must comply with Act

(6.) Subject to the provisions of this Act the grant of an interest in a copyright, either by assignment or license, shall be void unless the assignee or licensee, at the time such grant is executed, satisfies the conditions conferring copyright prescribed by this Act.

CIVIL REMEDIES

Civil remedies for infringement of copyright

8. Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are conferred by law.

Costs

(2.) The costs in any proceedings in respect of the infringement of copyright shall be in the absolute discretion of the court.

Rights of owner respecting pirated copies

9. All pirated copies of any work in which copyright subsists, and all plates used or intended to be used for the production of pirated copies of such work, shall be deemed to be the property of the owner of the copyright, who may take proceedings for the recovery of possession of such copies or in respect of the conversion thereof.

Remedies in the case of architecture

10. Where a building or other structure which infringes or which, if completed, would infringe the copyright in some other work has commenced to be constructed, the owner of the copyright shall not be entitled to obtain an injunction to restrain the construction of such building or structure or to order its demolition.

Limitation

(2.) Such of the other provisions of this Act as provide that a pirated copy shall be deemed the property of the owner of the copyright, or as impose summary penalties, shall not apply in any case to which this section applies.

OFFENCES AND PENALTIES

Penalty for false entries

11. Every person who wilfully makes or causes to be made any false entry in any of the registry books hereinbefore mentioned, or who wilfully produces, or causes to be tendered in evidence, any paper which falsely purports to be a copy of an entry in any of the said books, is guilty of an indictable offence.

Limitation of action

12. No action or prosecution for the recovery of any penalty under this Act shall be commenced more than three years after the cause of action arises.

SUMMARY REMEDIES

Penalties for dealing with pirated copies

13. If any person —

(a) makes for sale or hire any pirated copy of a work in which copyright subsists; or,

(b) sells or lets for hire, or exposes, offers, or has in his possession for sale or hire any pirated copy of any such work; or,

(c) distributes or exhibits in public any pirated copy of any such work; or,

(d) imports for sale or hire into Canada any pirated copy of any such work:

he shall, unless he proves that he acted innocently, be guilty of an offence under this Act and be liable on summary conviction to a fine not exceeding twenty-five dollars for every copy dealt with in contravention of this section, but not exceeding two hundred dollars in respect of the same transaction; or in the case of a second or subsequent offence, either to such fine or to imprisonment with or without hard labour for a term not exceeding two months:

Proviso as to certain cases

Provided that a person convicted of an offence under paragraph (b) of this subsection, who has not been previously convicted of any such offence and who proves that the copies of the work in respect of which the offence was committed had printed or marked thereon in some conspicuous place a name and address purporting to be that of the printer or publisher, shall not be liable to any penalty under this section unless it is proved that the copies were to his knowledge pirated copies.

Penalty for making or possessing plate of pirated copies

(2.) If any person makes or has in his possession any plate for the purpose of making pirated copies of any work in which copyright subsists, or for private profit causes any such work to be performed in public without the consent of the owner of the copyright, he shall, unless he proves that he acted innocently, be guilty of an offence under this Act, and be liable on summary conviction to a fine not exceeding two hundred dollars, or, in the case of a second or subsequent offence, either to such fine or to imprisonment with or without hard labour for a term not exceeding two months.

Destruction of plate upon order of court

(3.) The court before which any such proceedings are taken may in addition order that all copies of the work or all plates in the possession of the offender, which appear to it to be pirated copies or plates for the purpose of making pirated copies, be destroyed or delivered up to the owner of the copyright or otherwise dealt with as the court may think fit.

Seizure of pirated copies being hawked about or sold and arrest of offender

14. Where a court of summary jurisdiction is satisfied by information on oath that there is reasonable ground for believing that pirated copies of any work are being or about to be hawked or carried about, sold or offered for sale, it may issue an order authorising any constable or peace officer —

(a) to seize without further warrant any copies of the work which may be found being hawked or carried about, sold or offered for sale;

(b) to arrest without further warrant any person who in any street or public place sells or exposes or has in his possession for sale any pirated copies of the work, or who offers for sale any pirated copies of the work by personal canvass or by personally delivering advertisements or circulars.

Execution of order for seizure and arrest

(2.) Where such an order has been made the person on whose application it was made may send a copy thereof (certified to be a true copy by the clerk of the court which made the order) to the chief constable or deputy chief constable for any district within which the court has jurisdiction, and thereupon any constable or peace officer may seize any such copies and arrest any such person in accordance with the terms of the order.

Disposition of works seized

(3.) Where the constable or peace officer seizes any copies of a work in pursuance of such an order, he shall bring them before a court of summary jurisdiction, and that court, on proof that the copies are pirated, may order that they be destroyed or delivered up to the owner of the copyright or otherwise dealt with as the court may think fit.

Orders open to inspection

(4.) All copies of orders sent to a chief constable or deputy chief constable under this section shall be open to inspection at all reasonable hours by any person without payment of any fee, and any person may take copies of or make extracts from any such order.

(5.) A single order under this section may be made extending to several works.

Scope of order

(6.) An order under this section shall not authorize —

(a) the arrest of any person selling or offering for sale; or,

(b) the seizure of copies of

Newspaper or periodical excepted

any newspaper or other periodical publication merely because it contains a pirated copy of a work, if such pirated copy is only an incidental feature and does not form a substantial part of the newspaper or periodical.

Search warrants

15. A court of summary jurisdiction may, if satisfied by information on oath that there is reasonable ground for believing that an offence punishable summarily under this Act is being committed on any premises, grant a search warrant authorising the constable or peace officer named therein to enter the premises between the hours of six of the clock in the morning and nine of the clock in the evening (and, if necessary, to use force in making such entry, whether by breaking open doors or otherwise) and to seize any copies of any work or any plates in respect of which he has reasonable ground for suspecting that an offence under this Act is being committed, and may, on proof that the copies or plates brought before the court in pursuance of the warrant are pirated copies or plates intended to be used for the purpose of making pirated copies, order that they be destroyed or delivered up to the owner of the copyright or otherwise dealt with as the court may think fit.

IMPORTATION OF COPIES

Importation of copies of copyright works

16. Except as otherwise provided by this Act copies made out of Canada of any work in which copyright subsists shall not be imported into Canada and shall be deemed to be included in Schedule C to The Customs Tariff, and that Schedule shall apply accordingly.

If copyright owner licenses reproduction in Canada, the Minister may prohibit importation of books printed elsewhere

Proviso

17. If a book in which there is subsisting copyright has been published in any part of His Majesty's dominions, other than Canada, and if it is proved to the satisfaction of the Minister that the owner of the copyright has granted a license to reproduce in Canada, from movable or other types, or from stereotype plates, or from electroplates, or from lithograph stones, or by any process for facsimile reproduction, an edition or editions of such book designed for sale only in Canada, the Minister may, notwithstanding anything in this Act, by order under his hand prohibit the importation into Canada, except with the written consent of the licensee, of any copies of such book printed elsewhere: Provided that two such copies may be specially imported for the bona fide use of any public free library or any university or college library, or for the library of any duly incorporated institution or society for the use of the members of such institution or society.