Section 30.8 — Copyright Act: Ephemeral recordings

It is not an infringement of copyright for a programming undertaking to fix or reproduce in accordance with this section a performer’s performance or work, other than a cinematographic work, that is performed live or a sound recording that is performed at the same time as the performer’s performance or work, if the undertaking is authorized to communicate the performer’s performance, work or sound recording to the public by telecommunication; makes the fixation or the reproduction itself, for its own broadcasts; does not synchronize the fixation or reproduction with all or part of another recording, performer’s performance or work; and does not cause the fixation or reproduction to be used in an advertisement intended to sell or promote, as the case may be, a product, service, cause or institution. The programming undertaking must record the dates of the making and destruction of all fixations and reproductions and any other prescribed information about the fixation or reproduction, and keep the record current. The programming undertaking must make the record referred to in subsection (2) available to owners of copyright in the works, sound recordings or performer’s performances, or their representatives, within twenty-four hours after receiving a request. The programming undertaking must destroy the fixation or reproduction within thirty days after making it, unless the copyright owner authorizes its retention; or it is deposited in an archive, in accordance with subsection (6). Where the copyright owner authorizes the fixation or reproduction to be retained after the thirty days, the programming undertaking must pay any applicable royalty. Where the programming undertaking considers a fixation or reproduction to be of an exceptional documentary character, the undertaking may, with the consent of an official archive, deposit it in the official archive and must notify the copyright owner, within thirty days, of the deposit of the fixation or reproduction. In subsection (6), official archive means the Library and Archives of Canada or any archive established under the law of a province for the preservation of the official archives of the province. This section does not apply where a licence is available from a collective society to make the fixation or reproduction of the performer’s performance, work or sound recording. A broadcasting undertaking, as defined in the Broadcasting Act , may make a single reproduction of a fixation or reproduction made by a programming undertaking and communicate it to the public by telecommunication, within the period referred to in subsection (4), if the broadcasting undertaking meets the conditions set out in subsection (1) and is part of a prescribed network that includes the programming undertaking. The reproduction and communication to the public by telecommunication must be made in accordance with subsections (2) to (6); and within thirty days after the day on which the programming undertaking made the fixation or reproduction. In this section, programming undertaking means a programming undertaking , as defined in subsection 2(1) of the Broadcasting Act , that is carried on lawfully under that Act; a programming undertaking described in paragraph (a) that originates programs within a network , as defined in subsection 2(1) of the Broadcasting Act ; or a distribution undertaking , as defined in subsection 2(1) of the Broadcasting Act , that is carried on lawfully under that Act, in respect of the programs that it originates. For greater certainty, it does not include an online undertaking , as defined in subsection 2(1) of the Broadcasting Act .