Legal Overview of Film Piracy and the Copyright Act in Canada.

Copyright in Canada means the right to reproduce.  Only the creator has the right to reproduce.  The creator is the author of the work.  For the purposes of this article, I will be discussing the copyright laws in relation to motion pictures.    Copyright laws in Canada  apply to dramatic work.   Dramatic work includes  films that are referred to as “cinematograph work” under the Copyright Act in Canada.  

Motion pictures are automatically protected as dramatic works providing certain conditions are met.  These conditions are outlined in section 5(1) of the Copyright Act.  For example, if the creator is an ordinarily resident of Canada, he/she is automatically granted copyright protection rights under the Act.   In addition, if the creator belongs to a treaty country, they are automatically granted copyright protection under the Copyright Act even if the work was not created in Canada.  For example,  if the film was created in the United States, the copyright of the cinematograph work is automatically protected under Canadian copyright laws because the United States is treaty country.   A treaty country can be a member of the Berne Convention, Universal Copyright Convention and the World Trade Organization.  These member countries have international copyright agreements.

Although copyright subsists automatically when the work is created, copyright can be registered voluntarily under section 53(2) of the Copyright Act.   Certificates of Copyright Registration are proof that a copyright subsists which is useful for court purposes.   Certificates of Registration are filed online at the Canadian Intellectual Property Office.  The duration of the terms of copyright is the life of the creator plus 50 years.

In order to prove copyright infringement, the crown will have to prove the copyright subsists in the original work, the evidence relying on are infringing copies, that the accused had knowledge that what he/she was doing was unlawful and that  the accused committed one of the following offenses under Section 42(1) of the Copyright Act:

a).  making for sale or rental;

b).  selling or renting out, or by way of trade exposing or offering for sale or rental;

c).  distributing;

d).  by way of trade exhibiting in public; and

e).  importing into Canada for sale or hire.

Section 42(2)(a) of the Copyright Act states that it is an offense for anyone who knowingly makes or possesses a plate for the purposes of infringing copies for which copyright subsists.    A plate is defined in section 2(a) of the Copyright Act as “any stereotype or other plate, stone mould matrix, transfer or negative used or intended to be used for printing or reproducing copies of any work”.   Anything used as a means to reproduce the illegal and unauthorized DVDs from motion pictures would be considered a plate.  Also, if a copyright infringer is camcording movies in a movie theatre, the camcorder would be considered a plate.   However, in order to prove  offense, the crown will have to establish that the accused had a plate in its possession which was used for copyright infringement in which copyright subsists and that the accused had knowledge  that these activities were illegal.

As part of our investigation in Canada, we attempt to prove the copyright infringer or an organization is engaging in illegal activity by reproducing DVDS of pirated movies for the purposes of selling  or renting them out to the market.   We also carry out an investigation to identify the reproduction of unauthorized and illegal pirated DVDs by examining the physical characteristics and attributes of the DVD and its contents to determine when it was reproduced.   A crucial part of the investigation is to determine the identity of the copyright infringers, business names, addresses and where they are manufacturing the product.   It is also important  to establish the amount of profits copyright infringers are earning from the sale of the unauthorized and illegal pirated  DVDs.

Another  important element of our investigation is to prove that the accused had knowledge that he/she was in violation of the Copyright Act.   The best way to meet this level of threshold of evidence is to send a warning letter by registered mail or personal delivery advising them of the specific copyright laws which they could be violating.    These letters are generally sent by our clients.   Once the copyright infringers are informed that what they are doing is illegal, we will conduct additional undercover buys to establish that they have knowledge of their illegal activity/ies.  We will also attempt to prove that they are continuing to engage in the illegal activity/ies under the Copyright Act.

If our investigation is successful, this will provide the grounds for an Affidavit in Support of a Search Warrant.

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