May 25, 1998

COPYRIGHT ENFORCEMENT POLICY

NOTE: What follows is a copyright enforcement policy, as approved by the RCMP and the Department of Justice.

For the Department of Justice, the copyright enforcement policy reflects the commitment in the 1997-2000 Justice Business Plan to refocus criminal litigation resources on serious cases. In the copyright context, the focus will be on copyright piracy, i.e., commercial infringement by importers, manufacturers and distributors. By implication, this focus will make retail enforcement, particularly of the flea market/rock concert/street vendor/garage sale variety, a lower enforcement priority. Federal enforcement resources will instead be directed at the manufacturer, distributor or importer of infringing or counterfeit products.

For more information, please contact:

tel: 613 941-8381
fax: 613 941-2276
internet: cal.becker@justice.gc.ca

1. Preamble: This document is a statement of federal enforcement policy. The policy is intended to promote a more strategic and effective deployment of scarce enforcement resources. For that purpose, it identifies the type of criminal infringement appropriate for investigation and prosecution. It also identifies four critical evidentiary elements, the absence of which could seriously compromise a successful prosecution.

2. Priority: Cases selected for investigation and prosecution should, as a matter of priority, constitute copyright piracy on a commercial scale. For purposes of this policy, "copyright piracy on a commercial scale" means commercial infringement by a manufacturer, wholesaler or importer. Infringement at the retail level is not an enforcement priority in its own right, although it may prove a useful means of gaining access to more serious offences of copyright piracy.

3. Exhaustion of Civil Remedies: If a case meets the criteria for investigation and prosecution, it should be taken on, subject to the usual evidentiary and resource considerations. If the case does not meet the criteria for investigation and prosecution, complainants should be advised to use the civil process to enforce their intellectual property rights. In a case that qualifies for criminal investigation and prosecution, it is not appropriate to advise complainants to exhaust their civil remedies before resorting to criminal process.

4. Evidentiary Requirements: The two most critical evidentiary requirements are knowledge of infringement and subsistence of copyright.

4.1 Knowledge. It is imperative to be able to demonstrate that the accused acted with knowledge that the works that were being manufactured for sale, sold, distributed, exhibited or imported were infringing works.

4.2 Subsistence and Ownership of Copyright. "Subsistence of copyright" means that the work infringed must be an original literary, dramatic, musical or artistic work, or a sound recording or a performer's performance; and the author of the work must have been, at the time the work was created, protected by the Berne Convention. Although registration is not itself necessary to provide copyright protection, registration with the federal Copyright Office confers certain advantages in proving the complainant's status as owner, assignee or licensee and in proving the subsistence of copyright. By virtue of s. 53(2) of the Copyright Act, "...a certificate of registration of copyright in a work is evidence that copyright subsists in the work and that the person registered is the owner of the copyright."   Generally, it is the complainant's responsibility to provide a certified copy of the certificate of registration for purposes of investigation and prosecution. It is advisable that complainants register their works with the Copyright Office before charges are laid; the fee for registration is $65.00 per work. Certified copies of a certificate of registration are available for a fee of $35.00 per work from:

 
 Director, Copyright and Industrial Design
 Canadian Intellectual Property Officice
 Industry Canada
 Place du Portage, Tower 1
 50 Victoria Street
 Hull, Quebec
 K1A 0C9
 
 Tel: (819) 956-8733
 Fax: (819) 953-6977

4.3 Identification of infringing goods. In addition to being able to prove that we have an original work or an authorised reproduction of that work, it is imperative that we be able to identify unauthorised or counterfeit reproductions of that work. If we cannot distinguish genuine from counterfeit, nor licensed from unlicensed versions of the work, we cannot make out a case of criminal infringement of copyright.

4.4 Financial Impact. A successful prosecution requires credible evidence of the financial impact of the infringement upon the complainant. This evidence is necessary first, for its bearing on the investigator's decision to take on the case; second, for its bearing on whether the Crown should proceed by indictment or summary conviction; and third, for its bearing on the scale of the penalty to be imposed.