Section 44.12 — Copyright Act: Power of court

A court may make an order described in subsection (3) if the court is satisfied that copies of the work are about to be imported into Canada, or have been imported into Canada but have not been released; the copies were either made without the consent of the person who is owner of the copyright in the country where they were made, or made elsewhere than in a country to which this Act extends; and the copies would infringe copyright if they were made in Canada by the importer and the importer knows or should have known this. A court may make an order described in subsection (3) on application by the owner of the copyright in a work in Canada. In an order made under subsection (1), the court may direct the Minister to take reasonable measures, on the basis of information reasonably required by the Minister and provided by the applicant, to detain the copies of the work, and to notify the applicant and the importer, immediately after detaining the copies of the work, of the detention and the reasons for the detention; and provide for any other matters that the court considers appropriate. An application for an order under subsection (1) may be made in an action or otherwise, and either on notice or ex parte , except that it must always be made on notice to the Minister. Before making an order under subsection (1), the court may require the applicant to furnish security, in an amount fixed by the court, to cover duties, storage and handling charges and any other amount that may become chargeable against the copies of the work;

and to answer any damages that may by reason of the order be incurred by the owner, importer or consignee of the work. The Minister may apply to the court for directions in implementing an order made under subsection (1). The Minister may give the applicant or the importer an opportunity to inspect the detained copies of the work for the purpose of substantiating or refuting, as the case may be, the applicant’s claim. Unless an order made under subsection (1) provides otherwise, the Minister shall, subject to the Customs Act and to any other Act of Parliament that prohibits, controls or regulates the importation or exportation of goods, release the copies of the work without further notice to the applicant if, within 10 working days after the applicant has been notified under subparagraph (3)(a)(ii), the applicant has not notified the Minister that they have commenced a proceeding for a final determination by the court of the issues referred to in paragraphs (1)(b) and (c). If, in a proceeding commenced under this section, the court is satisfied that the circumstances referred to in paragraphs (1)(b) and (c) existed, the court may make any order that it considers appropriate in the circumstances, including an order that the copies of the work be destroyed, or that they be delivered up to the plaintiff as the plaintiff’s property absolutely. For greater certainty, nothing in this section affects any remedy available under any other provision of this Act or any other Act of Parliament.