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English translation sample about Criminal Remedies

Other Exceptions 其他特例
User Generated Content使用者创作内容: 29.1
Reproduction for private purposes: 私人目的的复制: 29.22
Time Shifting时间转换: 29.23
Format Shifting格式转换: 29.24
Educational institutions教育机构: 29.4:
Museums and archives博物馆和档案: 30.1
Public policy infringement that would normally be a violation of Copyright but could be a matter of public policy or national security may also not violate the copyright act. (Beloff v. Pressdram )
Enforcement 执行
Enforcement 执行

Copyright cases in Canada rarely go to court and it is more likely that they will be settled via mediation or summary judgment.


Interlocutory injunctions allow courts to stop infringing actions before they are brought to trial.


Anton Piller injunction: a pre-trial order allowing seizure of infringing material that a defendant might otherwise hide


Final injunction is a discretionary measure through which the court can enjoin the defendant from specific behaviours


Delivery and Seizure of goods can require an infringer to either destroy the goods under oath or to deliver them up to the claimant to be destroyed

Interlocutory Injunction 中间禁令
Does the claimant have a seriously arguable — not frivolous or vexatious — case
2.Would the claimant suffer an injury that cannot be adequately compensated in damages if the injunction were refused and the claimant eventually succeeded at trial
3.Does the balance of convenience favour the grant of an injunction
Case Study: Snow v. Eaton Centre案例研究:斯诺诉伊顿中心

Snow v. Eaton Centre 70 CPR (2d) 105, [1982] OJ No 3645

斯诺诉伊顿中心,案号70 CPR (2d) 105, [1982] OJ No 3645

Facts: Geese statues “with ribbons” were on display in the Christmas holidays.


Issue: Should an injunction be granted to stop the modification of the statues


Ratio: Yes, providing injunctive relief in this situation is warranted.


Analysis: Considering the three factors, the claimant would have suffered injuries had the geese been left up and given the temporary nature of modification, injunction was favourable.

Question: Was the granting of the injunction appropriate
Relief Provided under Copyright law著作权法规定的救济
There are three main types of Copyright remedies available in Canada: Border, Criminal and Civil.

Civil: provides monetary damages for the infringement that took place.


Criminal: Allows for criminal charges to be laid for any violations of the provisions in the copyright act.


Border: Allows Customs to seizing infringing material before it enters the country.

Heads of Damages 损害赔偿金项目
Damages in copyright cases are very similar to tort and they involve categories such as:
Compensatory Damages: 补偿性赔偿
Lost sales 销售损失
Reasonable royalty 合理许可使用费
Intangible losses 无形损耗
Apportioning damages 分配损害
Innocent infringer 无辜侵权人
Punitive damages may also be rewarded if the infringer was found to have behaved in an appalling manner.
Limitations on Damages损害赔偿的限制

Section 35(1) states that an infringer is liable for the financial gain made through infringement, and "such damages to the owner of the copyright as the owner has suffered due to the infringement"


Cap on end user damages: A copyright holder can instead elect to protect his/her copyright under section 38.1, which allows for "a sum of not less than $100 or more than $5,000 as the court considers just." for all non-commercial infringement, and $500 up to $20,000 for each commercial infringement.


No recovery against educational institution and limits on non-commercial damages.


Accounting for profits will also be used to adjust for damages.

Case Study: Cinar v. Robinson 案例研究:西纳诉罗宾逊

Facts: Animator proposed a cartoon to a production company who created a cartoon with a similar premise.


Issue: What damages should be award in this case


Ratio: Court ordered psychological damages and disgorgement of profits but not punitive or accounting for profits


Analysis: Damages from torts for psychological damage can be appropriate. Infringers are liable for any profits made from works based on the infringing work i.e. must give up profit from soundtrack based on work.

Question: Are psychological damages appropriate in this case
Criminal Remedies 刑事救济
42. (1) Every person who knowingly
(a) makes for sale or rental an infringing copy of a work or other subject-matter in which copyright subsists,
(b) sells or rents out, or by way of trade exposes or offers for sale or rental, an infringing copy of a work or other subject-matter in which copyright subsists,
(c) distributes infringing copies of a work or other subject-matter in which copyright subsists, either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright…
Criminal Remedies 刑事救济
42.(1) Every person who knowingly…cont’d
(d) by way of trade exhibits in public an infringing copy of a work or other subject-matter in which copyright subsists, or
(e) imports for sale or rental into Canada any infringing copy of a work or other subject-matter in which copyright subsists
….is guilty of an offence and liable:
(f) on summary conviction, to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding six months or to both, or
(g) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.
Border Remedies 边境救济
44. Copies made out of Canada of any work in which copyright subsists that if made in Canada would infringe copyright and as to which the owner of the copyright gives notice in writing to the Canada Border Services Agency that the owner desires that the copies not be so imported into Canada, shall not be so imported and are deemed to be included in tariff item No. 9897.00.00 in the List of Tariff Provisions set out in the schedule to the Customs Tariff, and section 136 of that Act applies accordingly.

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