August 24, 2012 @ 09:00:00
Changes to Section 20 of the Copyright Act - Good or Bad?
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Changes to Section 20 of the Copyright Act cement the incomprehensible intention to create separate regimes of protection for performers and makers of sound recordings having connection to Canada, WPPT countries and the Rome Convention countries. More on that in my posts Changes to Section 19(1) of the Copyright Act - Good Or Bad?, New Subsections 19(1.1) and 19(1.2) of the Copyright Act - Good Or Bad? and New Sections 19.1 and 19.2 of the Copyright Act – Good Or Bad?.

Sections 19(1), 19(1.1) and 19(1.2) set out the right to remuneration “subject to subsections” 20(1), 20(1.1) and 20(1.2) respectively.

Section 20(1) sets out that s. 19(1) applies only if the maker of the sound recording was, at the date of the first fixation, a Canadian citizen or permanent resident, or a corporation with its headquarters in Canada; or if all the fixations done for the sound recording occurred in Canada. Section 20(1.1) sets out analogous requirements with respect to s. 19(1.1) with the exception that instead of connection to Canada, a connection to a Rome Convention country is required. Likewise, Section 20(1.2) sets out the requirements with respect to s. 19(1.2), however instead of connection to Canada, a connection to a WPPT country is required.

The reciprocal limitations whereby the Minister could, by a statement published in the Canada Gazette, limit the scope and duration for sound recordings having connection to a country that does not provide similar level of protection, will not cover not only the Rome Convention countries, but also WPPT countries. This is done by splitting the former s. 20(2) into s.20(2) and s. 20(2.1).

The right of the Minister to grant the right to remuneration conferred by s. 19(1.1) has been tweaked to refer to the right of remuneration available to Rome Convention countries. You may remember that unlike the right of remuneration available to Canadians and WPPT Countries, the right conferred by s. 19(1.1) through bad drafting also appears to cover the right of remuneration for making available right.

BOTTOM LINE: If one of the declared intentions of the Copyright Modernization Act had been to make the Copyright Act easier to read, understand, apply and enforce, the cross-referencing mess between sections 2.4(1.1), 19 and 20 shows a spectacular failure. Even if the result of creating separate regimes for the Rome Convention countries was intended, the language used to do so is virtually incomprehensible. Even worse, if it hand’t been the intention.

Categories:Intellectual Property:Copyright
Additional Tags:New Copyright Act
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