Copyright: Its History and Its Law

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:

Interpretation

"Book" includes any book or volume, and any part or division of a book or volume, and any article in a book or volume, and any pamphlet, periodical, sheet of letterpress, sheet of music, map, chart, diagram, or plan separately published, and any illustration therein:

"Dramatic work," in addition to being included in the definition of book, means any tragedy, comedy, play, drama, farce, burlesque, libretto, of an opera, entertainment, or other work of a like nature, whether set to music or otherwise, lyrical work set to music, or other scenic or dramatic composition:

"Lecture" includes a sermon:

"Musical work" in addition to being included in the definition of book, includes any combination of melody and harmony, or either of them, printed, reduced to writing, or otherwise graphically produced or reproduced:

"Periodical" means a review, magazine, newspaper, or other periodical work of a like nature:

"Pirated artistic work" means a reproduction of an artistic work made in any manner without the authority of the owner of the copyright in the artistic work:

"Pirated book" means a reproduction of a book made in any manner without the authority of the owner of the copyright in the book:

"Portrait" includes any work the principal object of which is the representation of a person by painting, drawing, engraving, photography, sculpture, or any form of art:

"Publish" and "Publication" in relation to a book refer to offer for sale or distribution, in each case with the privity of the author, so as to make the book accessible to the public:

"The Registrar" means the Registrar of Copyrights or a Deputy Registrar of Copyrights:

"State Copyright Act" means any State Act relating to the registration of the copyright or performing right, or lecturing right in books, or dramatic or musical works, or in artistic works, or fine art works, or in lectures.

Simultaneous publication or performance

5. What is simultaneous publication or performance.– For the purposes of this Act publication, performance, or delivery in the Commonwealth shall be deemed to be simultaneous with publication, performance, or delivery elsewhere if the period between the publications, performances, or deliveries does not exceed fourteen days.

Blasphemous, etc., matter

6. Blasphemous, &c., matter not protected.– No copyright, performing right, or lecturing right shall subsist under this Act in any blasphemous, indecent, seditious, or libelous work or matter.

Application of common law

7. Application of the Common Law.– Subject to this and any other Acts of the Parliament, the Common Law of England relating to proprietary rights in unpublished literary compositions, shall after the commencement of this Act, apply throughout the Commonwealth.

State copyright acts

8. State Copyright Acts not to apply to copyright under this Act.– (1.) The State Copyright Acts so far as they relate to the copyright in any book, the performing right in any musical or dramatic work, the lecturing right in any lecture, or the copyright in any artistic or fine art work shall not apply to any book, dramatic or musical work, lecture, or artistic work in which copyright, performing right, or lecturing right, subsists under this Act.

Rights under state laws

Saving of rights under State laws.– (2.) Subject to Part II. of this Act, nothing in this Act shall affect the application of the laws in force in any State at the commencement of this Act to any copyright or other right in relation to books or dramatic or musical works or lectures or artistic or fine art works acquired under or protected by those laws before the commencement of this Act.

PART II. – ADMINISTRATIONDivision 1. – The Registrar and the Copyright Office

Registrar

9. Registrar.– (1.) There shall be a Registrar of Copyrights.

(2.) The Governor-General may appoint one or more Deputy Registrars of Copyrights who shall, subject to the control of the Registrar of Copyrights, have all the powers conferred by this Act on the Registrar.

Copyright Office

10. Copyright Office.– For the purposes of this Act an office shall be established which shall be called the Copyright Office.

Seal

11. Seal of Copyright Office. – There shall be a seal of the Copyright Office, and impressions thereof shall be judicially noticed.

Division 2. – The Transfer of the Administration of the State Copyright Acts

Transfer of administration

12. Transfer of administration.– The Governor-General may, by proclamation, declare that, from and after a date specified in the proclamation, the administration of the State Copyright Acts of any State so far as they relate to the registration of the copyright in any book, the performing right in any musical or dramatic work, the lecturing right in any lecture, and the copyright in any artistic or fine art work, or to the registration of any assignment or grant of, or licence in relation to, any such right, shall be transferred to the Commonwealth and thereupon, so far as is necessary for the purposes of this section —

Effect of transfer

(a) Effect of transfer of administration. Cf. Patents Act, 1903, ss. 18 and 19.– The State Copyright Acts of the State shall cease to be administered by the State, and shall thereafter be administered by the Commonwealth so far as is necessary for the purpose of completing then pending proceedings and of giving effect to then existing rights, and the Registrar shall collect for the State all fees which become payable thereunder; and

(b) all powers and functions under any State Copyright Act vested in the Governor of the State or in the Governor with the advice of the Executive Council of the State or in any Minister officer or authority of the State shall vest in the Governor-General or in the Governor-General in Council or in the Minister officer or authority exercising similar powers under the Commonwealth as the case requires or as is prescribed; and

(c) all records registers deeds and documents of the Copyright office of the State vested in or subject to the control of the State shall, by force of this Act, be vested in and made subject to the control of the Commonwealth.

PART III. – LITERARY, MUSICAL, AND DRAMATIC COPYRIGHT

Copyright in books

13. Copyright in books.– (1.) The copyright in a book means the exclusive right to do, or authorize another person to do, all or any of the following things in respect of it: —

(a) To make copies of it:

(b) To abridge it:

(c) To translate it:

(d) In the case of a dramatic work, to convert it into a novel or other non-dramatic work:

(e) In the case of a novel or other non-dramatic work, to convert into a dramatic work: and

(f) In the case of a musical work, to make any new adaptation, transposition, arrangement, or setting of it, or of any part of it, in any notation.

(2.) Copyright shall subsist in every book, whether the author is a British subject or not, which has been printed from type set up in Australia, or plates made therefrom, or from plates or negatives made in Australia in cases where type is not necessarily used, and has, after the commencement of this Act, been published in Australia, before or simultaneously with its first publication elsewhere.