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Paragraphs (a) to (i) of s. 3(1) are listed.
Communication to the Public by Telecommunication -
Bunch of random stuff.
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Does caching by the ISP amount to reproduction, or is it merely a necessary part of the means of telecommunication.
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Necessary part of the means of telecommunication (so long as that is what is happening)
Presentation at a Public Exhibition -
s. 3(1)(g) provides for the presentation at a public exhibition, for a purpose other than sale or hire, of an artistic work created after June 7, 1988 as stipulated in Copyright Amendment Act.
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Arose due to the provision of the right to perform a work or any substantial part thereof in public was not applicable to static artistic works.
From Gutenberg to Telidon: A White Paper on Copyright, Proposals for the Revision of the Canadian Copyright Act -
Droit de suite. There is none in the present Act.
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This right would enable the creator of an original artistic work to share in the proceeds of its resale.
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In this manner an artist and even possibly his heirs, could claim a share of increases in the value of a work of art as it was resold.
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In the relatively few jurisdictions that do grant the right, it applies oily to works sold by public sales or auctions.
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Many practical and legal difficulties, and the ease of evading the right there remains the difficulty of ensuring that the right would dapple only to Canadian creators.
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If Canada were to have one, it would benefit foreign artists’ work in Canada, but not to Canadians whose work was sold overseas.
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Exhibition right for artistic works
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Such a right would enable artist to control the public exhibition of their work.
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This would control the public presentation of their art even after it was sold.
A Charter of Rights for Creators: Report of the Sub-Committee on the Revision of Copyright -
Creators of artistic works have long maintained that compared to creators of other types of works, they are short-changed by the present Act.
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Would have to be restored only by recognizing the unique uses made of an artistic work and by providing exclusive rights to these under the Copyright Act.
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Recommendation is that the revised law should recognize a right to exhibit the original of an artistic work in public.
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This right should also extend to artistic works which are part of a limited edition.
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Droit de suite
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The biggest set back would deb that it would have to be extended to non-Canadian artists, and could displace the art to neighbouring jurisdictions where the right doesn’t exist.
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Recommendation is that droit de suite not be introduced in the new act.
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Provided in s. 22 and 27.1 of the Copyright Act, as inserted by s. 15 of the Copyright Amendment Act 1997.
Parallel Importation of Books -
s. 27.1 deals specifically with the parallel importation of books.
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The copy of the book is obtained lawfully in the extraterritorial jurisdiction.
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Policy objective of this section is to protect the Canadian copyright owner of any book by preventing the importation of the book from an extraterritorial source.
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It reflects trade protection of the publishing industry in Canada.
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Primary infringement is the act of importation.
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Secondary is by dealing with a book that is imported contrary to this section.
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s. 44.2 enables the owner of the copyright/licensee/distributor to invoke the remedial provisions of s. 44.1(3).
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s. 45 has the exceptions, including the importation of 2 copies for the use of the importer only.
Infringement Generally -
s. 27(1) stipulates primary infringement:
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An infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do.
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Two aspects to take note of:
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One of the most conceptually difficult elements in establishing infringement by reproduction is that of “access”.
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Must be established to provide the causative link in the copying of the plaintiff’s work, as opposed to the position that the defendant’s work constitutes an independent creation.
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If access can be established by direct evidence, no difficulty.
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If only circumstantial, or ‘implied’, inquiry must necessarily involve how far account should be taken of, or what weight ought to be given to, a comparison of the respective works and the factors of striking or substantial similarity in itself.
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An emphasis on identifying and protecting only copyrightable material, especially in cases of non-literal copying.
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Isolating the protectable form of expression, figuring out what the author actually created, and evaluating whether or not infringement has occurred by applying the tests for infringement to a comparison.
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Stipulated in s. 27(2) concerns “dealing” in various ways with an infringing copy of a subject matter protected by copyright.
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Infringement of copyright for any person to
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a - sell or rent out,
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b - distribute to such an extent as to affect prejudicially the owner of the copyright,
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c - by way of trade distribute, expose or offer for sale or rental, or exhibit in public,
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d - possess for the purpose of doing anything referred to in paras a to c, or
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e - import into Canada for the purpose of doing anything referred to in paras a to c.
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