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Copyright definition – What is Copyright?

Copyright definition can be defined as follows: “Copyright subsists in ‘every original literary, dramatic, musical and artistic work includes every original production in the literary, scientific or artistic domain, whatever may be the mode or form of its expression’” as noted in the Copyright Act provided certain conditions met further described in this article.

What is Copyright:  Copyright Definition?

General Copyright Definition

  • The copyright definition does not mean the physical ownership of a work.  There is a difference between the physical ownership of a work versus copyright of a work.  The physical ownership is tangible versus the copyright which is the intangible version of a work.
  • Copyright does not exist in ideas but the expression of those ideas.  The misperception that there exists copyright in one’s ideas is common but inaccurate and needs to be emphasized in any copyright definition.  Copyright right is a statutory right created by the Copyright Act.
  • Copyright is a bundle of economic and moral rights pursuant to the Copyright Act
  • Section 3 of the Copyright Act provides the copyright owner with the exclusive right to produce, reproduce, perform, adapt, translate, publish, make a recording, communicate by telecommunication, and present an artistic work at an exhibition or any substantial part of a work. The right to communicate a work to the public by telecommunication, and the right to rent out certain works.
  • The creator of an original literary, dramatic, artistic, or musical work is given the exclusive right to use and to permit others to use the work by way of performance, exhibition and reproduction.
  • Artistic works include artwork, illustrations, graphics, logs, maps etc.. Literary works refers to books, periodicals, newspapers, journals, papers, software, directories, etc.

Copyright Registration

  • Copyright exists automatically upon creating a work. There is no need to register copyright. However, there are advantages in doing so. By registering your work with the Copyright Office at the Canadian Intellectual Property Office (CIPO), you create a presumption of ownership and a presumption that copyright subsists in the work (s. 53). The onus of disproving these presumptions lies with the defendant. Also, the Copyright Act provides that if a defendant can prove that he/she was not aware that copyright subsisted in the work, the plaintiff is entitled only to an injunction and not damages. With a registration, a defendant cannot claim that they had no reasonable grounds to believe that copyright subsisted in the work.

Citizenship Requirements of the Copyright Act

  • The author must meet citizenship requirements of the Copyright Act. In order for copyright to subsist in Canada, at the time the work was made, the author must be a
    • citizen or person ordinarily resident in Canada or
    • a citizen in a country to which the Act extends or
    • a published work must first be published in Canada or a country to which the Act extends

What is Required for Copyright to Subsist?

  • In order for copyright to subsist, it must meet the following:
    • Work must be original – It has to be original (section 5) and it must be in a fixed or material form. I.e. there is no copyright in ideas but there is copyright in the expression of these ideas. Originality means that the work or a substantial part of the work cannot be copied from another work.
    • Exercise of skill and judgment – in order for a work to be original, there must be an “exercise of skill and judgment” but it does not need to be “creative”, “novel or unique”. It involves some “intellectual effort” but it “must not be so trivial that it could not be characterized as a purely mechanical exercise.”
    • Inventiveness or novelty not required – the work merely has to be new as a result of the “skill, labour and judgment of the author”. It cannot be so minimal that it is considered a “commonplace arrangement of non-copyright material” as noted in the Tele-Direct (Publications) Inc. v. American Business Information Inc., [1996] F.C.J. No. 908. It depends on the facts of each case. There is no minimum merit attaching to the work.

You can read more on what is copyright our related article, What is Copyright?. 

© Entcounsel. 2018.

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