Re: Re: Enforcement of US Work in Foreign Country Under Berne

In Canada, the relevance of registration is spelled out in our (C) Act, Pt.V, Sec.53: <http://laws.justice.gc.ca/en/C-42/39539.html#rid-39613>.

"Register to be evidence
  53. (1) The Register of Copyrights is evidence of the particulars   entered in it, and a copy of an entry in the Register is evidence of   the particulars of the entry if it is certified by the Commissioner   of Patents, the Registrar of Copyrights or an officer, clerk or   employee of the Copyright Office as a true copy.

 Owner of copyright
  (2) A certificate of registration of copyright is evidence that the   copyright subsists and that the person registered is the owner of   the copyright.

 Assignee
  (2.1) A certificate of registration of an assignment of copyright is   evidence that the right recorded on the certificate has been assigned   and that the assignee registered is the owner of that right.

 Licensee
  (2.2) A certificate of registration of a licence granting an interest   in a copyright is evidence that the interest recorded on the certificate   has been granted and that the licensee registered is the holder of that   interest.

 Admissibility
  (3) A certified copy or certificate appearing to have been issued under   this section is admissible in all courts without proof of the signature   or official character of the person appearing to have signed it."

Of course, this prima facie evidence is challengable in court, but the registration certificate means that an infringer cannot claim "innocent" infringement. The Act makes it clear that "the plaintiff is not entitled to any remedy other than an injunction in respect of the infringement if the defendant proves that, at the date of the infringement, the defendant was not aware and had no reasonable ground for suspecting that copyright subsisted in the work or other subject-matter in question." Sec. 39(1). The same section goes on to say this "does not apply if, at the date of the infringement, the copyright was duly registered under this Act." (2). So, "where the plaintiff knew, or could reasonably have been expected to know" that copyright was violated, the full set of "civil remedies" may be brought to bear. Further, under the sections dealing with "criminal remedies", the phrase "knowingly" is used repeatedly re making, selling, distributing, etc. of infringing copies, and clearly being reasonably expected to know that a work was protected is part of that concept.

I am informed by Lesley Ellen Harris' "Canadian Copyright Law" (3rd ed., Mcgraw-Hill Ryerson, 2001), that registration of a "grant of interest" in a work will mean that such a claim will take "priority over a similar grant of interest if that other interest has not been registered" (p.31). She also notes that "registration can be made at any time prior to the commencement of a lawsuit" (idem), but given Sect. 39, I think that such late registration cannot be used to abrogate the potential of "innocent infringement", ie. the plaintif would only be subject to an injunction.

Filing or registering a copyright may be done online, and searches of the Canadian Copyrights Database can be done online, but at present it is limited to works registered on or after after October 1, 1991. "In some cases, registrations prior to 1991 were entered into the database due to request for certified copies. This includes traditional copyrights (original literary, artistic, dramatic and musical works) and copyright in other subject-matter (performer's performances, sound recordings and communication signals), as well as information on licences and assignments. Pre-1991 registration information is available in microfiche, index card and microfilm form in the Client Service Centre in Hull, Quebec... [The] database is updated every 24 hours when the [Copyright] office is open. Updates are not done on weekends or holidays." The search engine is at: <http://strategis.ic.gc.ca/cipo/copyrights/displaySearch.do?language=eng>

Bernard Katz, former head, Special Collections and Library Development

                           McLaughlin Library, University of Guelph    author, descriptive bibliog. of L.M. Montgomery's books (in progress)    and chair, Ontario Library Association Copyright Task Force

On Wed, 23 Feb 2005, Howard Schulze wrote [in response to Mike Tucci]:

> In most countries of the world including Australia there is simply no
> registration of copyright possible. It is a system that depends on
> proof of the facts if enforcement is sought. In practise this seems to
> work effectively in my some many years using the system. Hence the
> reply to your question is that yes, copyright is enforcable without
> registration in most countries opf the world. There are just a very few
> countries that still have a registration possibility and I think these
> include India and Canada but I am not aware of the relevance of
> registration in either of these jurisdictions.
> I would be most interested if someone had more information on this
> topic.
> Howard Schulze
> Collison and co
Received on Thu Feb 24 2005 - 23:35:31 GMT