Copyright: Its History and Its Law

Suspension or revocation of prohibition

18. The Minister may at any time in like manner, by order under his hand, suspend or revoke such prohibition upon importation if it is proved to his satisfaction that —

(a) the license to reproduce in Canada has terminated or expired; or,

(b) the reasonable demand for the book in Canada is not sufficiently met without importation; or,

(c) the book is not, having regard to the demand therefor in Canada, being suitably printed or published; or,

(d) any other state of things exists on account of which it is not in the public interest to further prohibit importation.

Licensee to furnish copy of any edition if required

19. At any time after the importation of a book has been so prohibited, any person resident or being in Canada may apply either directly or through a bookseller or other agent, to the person so licensed to reproduce such book, for a copy of any edition of such book then on sale and reasonably obtainable in the United Kingdom or any other part of His Majesty's dominions and it shall thereupon be the duty of the person so licensed, as soon as reasonably may be, to import and sell such copy to the person so applying therefor, at the ordinary selling price of such copy in the United Kingdom, or such other part of His Majesty's dominions, with the duty and reasonable forwarding charges added.

Otherwise prohibition may be revoked

(2.) The failure or neglect, without lawful excuse, of the person so licensed to supply such copy within a reasonable time shall be a reason for which the Minister may, if he sees fit, suspend or revoke the prohibition upon importation.

Customs notified of prohibition

20. The Minister shall forthwith inform the Department of Customs of any order made by him under this Act.

Unlawful importation of books

Forfeiture

Penalty

21. All books imported in contravention of any order, prohibiting such importation, made under the hand of the Minister, by the authority of this Act, may be seized by an officer of Customs, and shall be forfeited to the Crown and destroyed; and any person importing, or causing or permitting the importation of any book in contravention of an order of the Minister shall, for each offence, be liable, upon summary conviction, to a penalty not exceeding one hundred dollars.

REGISTRATION

Registers of copyrights

22. The Minister shall cause to be kept, at the Department, books to be called the Registers of Copyrights, in which shall be entered the names or titles of works and the names of authors, and such other particulars as may be prescribed.

Registration of particulars of work

(2.) The author or publisher of, or the owner of or other person interested in the copyright in, any work shall cause the particulars respecting the work to be entered in the register, before publication thereof or the performance or delivery thereof in public.

Registration of serial publications

(3.) In the case of an encyclopædia, newspaper, review, magazine or other periodical work, or work published in a series of books or parts, it shall not be necessary to make a separate entry for each number or part, but a single entry for the whole work shall suffice.

Indexes of registers

(4.) There shall also be kept at the Department such indexes of the registers established under this section as may be prescribed.

Registers and indexes in prescribed forms

Certified copies of entries

(5.) The registers and indexes established under this section shall be in the prescribed form, and shall at all reasonable times be open to inspection, and any person shall be entitled to take copies of or make extracts from any such register, and the Minister shall, if so required, give a copy of an entry in any such register certified by him to be a true copy, and any such certificate shall be prima facie evidence of the matters thereby certified.

Fees

(6.) There shall be charged in respect of entries in registers the inspection of registers, taking copies of or making extracts from registers, and certificates under this section, the fees hereinafter prescribed.

Prior registrations

(7.) Any registration made under The Copyright Act shall have the same force and effect as if made under this Act.

Registration of temporary copyright in periodical works

23. Any literary work intended to be published in pamphlet or book form, but which is first published in separate articles in a newspaper or periodical in Canada, may be registered under this Act while it is so preliminarily published as a temporary copyright, if the title of the manuscript and a short analysis of the work are deposited at the Department with an application for registration in accordance with the prescribed form, and if every separate article so published is preceded by the words, "Registered in accordance with the Copyright Act, 1911:" Provided that the work, when published in book or pamphlet form, shall be subject, also, to the other requirements of this Act.

Anonymous publications

24. If a book is published anonymously, it shall be sufficient to enter it in the name of the first publisher thereof, either on behalf of the unnamed author or on behalf of such first publisher, as the case may be.

Application for registration

25. The application for the registration of a copyright or of a temporary copyright may be made in the name of the author or of his legal representatives, by any person purporting to be agent of such author or legal representatives.

Unauthorized assumption of agency

(2.) Any damage caused by a fraudulent or an erroneous assumption of such authority shall be recoverable in any court of competent jurisdiction.

Deposit of application and copies of work in Department

26. Application for registration of a copyright shall be made in accordance with the prescribed form, and shall be deposited at the Department together with three copies of the work if it is a book, map, chart, musical composition, photograph, print, cut or engraving, and with a written description thereof if the work is a painting, drawing or a work of sculpture, and with one complete typewritten copy thereof if the work is a dramatic work copies of which are not published.

Weekly list of registered works

Copies transmitted and retained

27. The Minister shall cause to be transmitted to the Library of the Parliament of Canada and to the British Museum a weekly list of all works registered under this Act together with one copy of each work deposited at the Department: Provided that the Minister may retain at the Department such copies of deposited works as appear in his opinion proper, but a copy of any work so retained shall be transmitted to the Library of Parliament of Canada or to the British Museum upon receipt of a demand in writing from the proper authority, such demand to be received by the Minister within six months after the date of registration of the work. Any copy of a work retained by the Minister as to which no demand is received within the time limited shall be returned to the owner of the copyright, or otherwise disposed of as to the Minister seems proper.

SPECIAL PROVISIONS AS TO CERTAIN WORKS

Copyright in posthumous works

28. In the case of a literary, dramatic or musical work or engraving which has not been published, nor, in the case of a dramatic or musical work been performed in public, nor, in the case of a lecture, been delivered in public, in the lifetime of the author, copyright shall, subject to the provisions of this Act as to first publication elsewhere than in Canada, subsist till publication, or performance or delivery in public, whichever may first happen, and for a term of fifty years thereafter.

Works of joint authors

29. In the case of a work of joint authorship copyright shall subsist during the life of the author who first dies and for a term of fifty years after his death, or during the life of the author who dies last, whichever period is the longer.

Collective works

30. Where the work of an author is first published as an article or other contribution in a collective work (that is to say): —

(a) an encyclopædia, dictionary, year book, or similar work;

(b) a newspaper, review, magazine, or other similar periodical;

(c) a work written in distinct parts by different authors;

Respective rights of contributors and proprietors

and the proprietor of the collective work is not by virtue of this Act or any assignment thereunder the owner of the copyright in the article or contribution, then, subject to any agreement to the contrary, the owner of the copyright in each article or contribution shall retain his copyright therein, but the proprietor of the collective work shall at all times have the right of reproducing and authorising the reproduction of the work as a whole, and for a period of fifty years from the date of first publication of the collective work shall have the sole right of reproducing and authorising the reproduction of the work as a whole, and shall be entitled to the same remedies in respect of the infringement of the copyright in any part of the work as if he were the owner of the copyright.

Copyright in photographs, records and perforated rolls

31. The term for which copyright shall subsist in photographs, and in records, perforated rolls and other contrivances by means of which a work may be mechanically performed or delivered, shall be fifty years from the making of the negative or plate, and the person who was owner of the original negative or plate from which the photograph or other contrivance was directly or indirectly derived at the time when such negative or plate was made shall be deemed to be the author of the work, and where such owner is a body corporate the body corporate shall be deemed for the purposes of this Act to reside within the parts of His Majesty's dominions to which this Act extends if it has established a place of business within such parts.

Application of Act to registered designs

32. This Act shall not apply to designs capable of being registered under The Trade Mark and Design Act, except designs which, though capable of being so registered, are not used or intended to be used as models or patterns to be multiplied by any industrial process.

Rules

(2.) General rules under section 39 of The Trade Mark and Design Act, may be made for determining the conditions under which a design shall be deemed to be used for such purposes as aforesaid.

EXISTING WORKS

Copyright in existing works, and substituted rights

Proviso

33. Where any person is, immediately before the commencement of this Act, entitled to any such right in any work specified in the first column of the First Schedule to this Act, or to any interest in such a right, he shall as from that date be entitled to the substituted right set forth in the second column of that Schedule, or to the same interest in such a substituted right, and to no other right or interest, and such substituted right or interest therein shall subsist for the term for which it would have subsisted if this Act had been in force at the date when the work was made, and the work had been one entitled to copyright thereunder: Provided that —

Rights of author

Rights of assignee

(a) if the author of any work in which copyright subsists at the commencement of this Act has before that date assigned the copyright or granted any interest therein for the whole term of the copyright, then at the date when but for the passing of this Act the right would have expired the corresponding right conferred by this Act shall, in the absence of express agreement, pass to the author of the work, and any interest therein created before the commencement of this Act and then subsisting shall determine; but the person who immediately before the date at which the right would so have expired was the owner of the right or interest shall be entitled at his option (to be signified in writing not more than one year nor less than six months before the last-mentioned date) either —

Assignment for remainder of term

(i) to an assignment of the right or the grant of a similar interest therein for the remainder of the term of the right for such consideration as, failing agreement, may be determined by arbitration; or,

Reproduction on payment of royalties

(ii) without any such assignment or grant, to continue to reproduce or perform the work in like manner as theretofore on the payment of such royalties to the author as, failing agreement, may be determined by arbitration:

Prior proceedings not affected

(b) nothing in this section shall affect anything done before the commencement of this Act;

Existing rights saved

(c) where any person has, before the twenty-sixth day of April, nineteen hundred and eleven, taken any action or incurred any expenditure for the purpose of or with a view to the reproduction or performance of a work at a time when such reproduction or performance would, but for the passing of this Act, have been lawful, nothing in this section shall diminish or prejudice any right or interest arising from or in connection with such action or expenditure which are subsisting and valuable at the said date, unless the person who by virtue of this section becomes entitled to restrain such reproduction or performance agrees to pay such compensation as, failing agreement, may be determined by arbitration;

Rights in records, perforated rolls and contrivances

(d) the sole right of making and authorising the making of records, perforated rolls or other contrivances by means of which literary, dramatic or musical works may be mechanically performed shall not be enjoyed by the owner of the copyright in any literary, dramatic, or musical work for the mechanical performance of which any such contrivances have been lawfully made within His Majesty's dominions by any person before the twenty-sixth day of April, nineteen hundred and eleven;

Substituted rights acquired only under this Act

(e) where any person is, immediately before the commencement of this Act, entitled to any right in any work specified in the first column of the First Schedule to this Act or to any interest in such right, and such person does not satisfy the conditions conferring copyright laid down by this Act, he shall be entitled to no other right or interest, and such right shall subsist for the term for which it would have subsisted but for the passing of this Act.

Limitation of existing rights

(2.) Subject to the provisions of this Act, copyright shall not subsist in any work made before the commencement of this Act, otherwise than under and in accordance with the provisions of this section.

IMPERIAL RECIPROCITY

Application of Act to works of authors resident in British dominions other than Canada

34. The Governor in Council may by order in council direct that this Act (except such part, if any, thereof as may be specified in the order and subject to such conditions and limitations as may be specified) shall apply to literary, dramatic, musical and artistic works the authors whereof were at the time of the making of the work bona fide residents in a part of His Majesty's dominions, other than Canada, to which the order relates, or British subjects resident elsewhere than in Canada:

Proviso

Provided that, before making an order in council under this section with respect to any part of His Majesty's dominions, the Governor in Council shall be satisfied that that part has made or has undertaken to make such provisions as it appears to the Governor in Council expedient to require for the protection of persons entitled to copyright under this Act.

INTERNATIONAL

Application of Act to works of residents in foreign countries

35. The Governor in Council may, by order in council, direct that this Act (except such parts thereof, if any, as may be specified in the order) shall apply to literary, dramatic, musical and artistic works the authors whereof were at the time of the making thereof subjects or citizens of or bona fide residents in a foreign country to which the order relates, and thereupon, subject to the provisions of this Act and of the order, this Act shall apply accordingly:

Proviso

Provided that —

(i) before making an order in council under this section the Governor in Council shall be satisfied that that foreign country has made or has undertaken to make such provisions as it appears to the Governor in Council expedient to require for the protection of works entitled to copyright under this Act;

(ii) the order in council may provide that the term of copyright within Canada shall not exceed that conferred by the law of the country to which the order relates;

(iii) the order in council may provide that the enjoyment of the rights conferred by this Act shall be subject to the accomplishment of such conditions and formalities as may be prescribed by the order;

(iv) in applying the provisions of this Act as to existing works the order in council may make such modifications as appear necessary, and may provide that nothing in those provisions as so applied shall be construed as reviving any right of preventing the production or importation of any translation in any case where the right has ceased.

Extent of order

(2.) An order in council under this section may extend to all the several countries named or described therein.

Evidence of foreign copyright

36. Where it is necessary to prove the existence in a foreign country to which an order in council under this Act applies of the copyright in any work, or the ownership of such right, an extract from a register, or a certificate, or other document stating the existence of such right, or the person who is the owner of such right, if authenticated by the official seal of a Minister of State of such foreign country, or by the official seal or the signature of a British diplomatic or consular officer acting in such country, shall be admissible as evidence of the facts named therein, and all courts shall take judicial notice of every such official seal and signature as is in this section mentioned, and shall admit in evidence, without proof, the documents authenticated by it.

EVIDENCE

Certified copies as evidence

37. All copies or extracts certified by the Department shall be received in evidence without further proof and without production of the originals.

Validity of documents

38. All documents executed and accepted by the Minister shall be held valid, so far as relates to official proceedings under this Act.

FEES

39. The following fees shall be paid to the Minister before an application for any of the following purposes is received, that is to say: —

Registration fees

Fees for Office copies

Fees in full of all services

(2.) The said fees shall be in full of all services performed under this Act by the Minister or by any person employed by him.

Application

(3.) All fees received under this Act shall be paid over to the Minister of Finance and shall form part of the Consolidated Revenue Fund of Canada.

No exemption from fees

(4.) No person shall be exempt from the payment of any fee or charge payable in respect of any services performed under this Act for such person.

CLERICAL ERRORS NOT TO INVALIDATE

Clerical errors may be corrected

40. Clerical errors which occur in the framing or copying of an instrument drawn by any officer or employee in or of the Department shall not be construed as invalidating such instrument, but when discovered they may be corrected under the authority of the Minister.

RULES AND REGULATIONS

Rules, regulations and forms

41. The Minister may, from time to time, subject to the approval of the Governor in Council, make such rules and regulations, and prescribe such forms as appear to him necessary and expedient for the purposes of this Act; and such regulations and forms, circulated in print for the use of the public, shall be deemed to be correct for the purposes of this Act.

Abrogation of common law rights

42. No person shall be entitled to copyright or any similar right in any literary, dramatic, musical or artistic work otherwise than under and in accordance with the provisions of this Act, or of any other statutory enactment for the time being in force.

Orders in Council

43. The Governor in Council may make orders for altering, revoking, or varying any order in council made under this Act, but any order made under this section shall not affect prejudicially any rights or interests acquired or accrued at the date when the order comes into operation, and shall provide for the protection of such rights and interests.

Publication

Laid before Parliament

(2.) Every order in council made under this Act shall be published in The Canada Gazette, and shall be laid before Parliament as soon as may be after it is made, and shall have effect as if enacted in this Act.

Repeal of certain enactments

44. Subject to the provisions of this Act, the enactments mentioned in the Second Schedule to this Act are, so far as they are operative in Canada, hereby repealed to the extent specified in the third column of that Schedule.

Repeal

45. Chapter 70 of the Revised Statutes, 1906, and chapter 17 of the statutes of 1908, are repealed.

Commencement of Act

46. This Act shall come into force on a day to be named by proclamation of the Governor General.

FIRST SCHEDULE

EXISTING RIGHTS

For the purposes of this Schedule the following expressions, where used in the first column thereof, have the following meanings: —

"copyright," in the case of a work which according to the law in force immediately before the commencement of this Act has not been published before that date and statutory copyright wherein depends on publication, includes the right at common law (if any) to restrain publication or other dealing with the work;

"performing right," in the case of a work which has not been performed in public before the commencement of this Act, includes the right at common law (if any) to restrain the performance thereof in public.

SECOND SCHEDULE

ENACTMENTS REPEALED

8. AUSTRALIAN COPYRIGHT ACT, 1905

(Assented to 21st December, 1905)

Be it enacted by the King's Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia as follows: —

PART I. – PRELIMINARY

Short title

1. Short Title.– This Act may be cited as the Copyright Act, 1905.

Commencement

2. Commencement.– This Act shall commence on a day to be fixed by Proclamation.

Parts

3. Parts.– This Act is divided as follows: —

Part I. – Preliminary.

Part II. – Administration.

Part III. – Literary, Musical, and Dramatic Copyright.

Part IV. – Artistic Copyright.

Part V. – Infringement of Copyright.

Part VI. – International and State copyright.

Part VII. – Registration of Copyrights.

Part VIII. – Miscellaneous.

Interpretation

4. Interpretation.– In this Act, unless the contrary intention appears —

"Artistic work" includes —

(a) Any painting, drawing, or sculpture; and

(b) Any engraving, etching, print, lithograph, woodcut, photograph, or other work of art produced by any process, mechanical or otherwise, by which impressions or representations of works of art can be taken or multiplied:

"Author" includes the personal representatives of an author: