WHAT IS COPYRIGHT?
Copyright are creative original works of expression as set out in the Copyright Act. The Act gives the creator/owner with a bundle of rights including the sole exclusive right to produce, reproduce, perform, adapt, translate, publish, make a recording, communicate by telecommunication, exhibit an artistic work, rights to communicate a work by telecommunication to the public and the right to rent out certain works. or publish an original or a substantial part of a copyright-protected work in any material form.
Section 14.1 (1) of the Act protects moral rights relating to the integrity of a work, the right to be associated with the work in connection with the rights in Section 3, where reasonable in the circumstances, as the author by name or by a pseudonym and the right to remain anonymous The purpose is to promote creativity while balancing the public interest.
Copyright subsists in every original literary, artistic, musical or dramatic works which has been expressed in a fixed form as set out in Section 3 of the Copyright Act. Copyright does not protect ideas.
Copyright provides protection and the ability for artists and creators to control the use of their work including fees, territories, rights, usage rights etc. The author must be a citizen or ordinarily resident in a treaty country (Berne Convention, Universal Copyright Convention or World Trade Organization).
TERM OF COPYRIGHT
Generally, the copyright term for a copyright protected work will be life of the author, the remainder of the calendar year in which the author dies and a period of seventy years following the end of the calendar year as a result of the new NAFTA. Currently, it is life of the author, the remainder of the calendar year plus fifty years.
Joint Authors – Section 9(1) notes that “except as provided in section 6.2 (when the identify of all authors of a work of joint authorship are unknown), copyright shall subsist during the life of the author who dies last, for the remainder of the calendar year of that author’s death, and for a period of fifty years following the end of that calendar year”.
Anonymous and pseudonymous works of joint authorship – Section 6.2 – copyright term subsists “for whichever term ends earlier: (a) a term consisting of the remainder of the calendar year of the first publication of the work and a period of fifty years following the end of that calendar year, and (b) a term consisting of the remainder of the calendar year of the making of the work and a period of seventy-five years following the end of that calendar year (but if during the term, one or more of the authors becomes known, then copyright shall subsist for life of the author that dies last, remainder of the calendar year and fifty year thereafter)”.
Term of copyright in posthumous works – Section 7.1 – for “literary, dramatic or musical work, or an engraving, in which copyright subsists at the date of death of the author or, in the case of a work of joint authorship, at or immediately before the date of the death of the author who dies last, but which has not been published or, in the case of a lecture or a dramatic or musical work, been performed in public or communicated to the public by telecommunication, before that date, copyright shall subsist until publication, or performance in public or communication to the public by telecommunication, whoever may first happen, for the remainder of the calendar year of the publication or of the performance in public or communication to the public by telecommunication, as the case may be, and for a period of fifty years following the end of the calendar year”.
Cinematic works – Section 11.1 of the Copyright Act provides that “except for cinematographic works in which the arrangement or acting form or the combination of incidents represented give the work a dramatic character, copyright in a cinematic work or a compilation of cinematographic work shall subsist: (a) for the remainder of the calendar year of the first publication of the cinematographic work or of the compilation, and for a period of fifty years following the end of that calendar year; or (b) if the cinematographic work or compilation is not published before the expiration of fifty years following the end of the calendar year of its making, for the remainder of the calendar year and for a period of fifty years following the end of that calendar year”.
OWNERSHIP OF COPYRIGHT
Section 13(3) of the Act outlines work made in the course of employment. It notes “Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, but where the work is an article or other contribution to a newspaper, magazine or similar periodical, there shall, in the absence of any agreement to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine or similar periodical”.
Copyright protection is automatic upon creation of a work. However, a copyright registration certificate with the Canadian Intellectual Property Office (CIPO) provides evidence and presumption of ownership that copyright exists and the person whose name is on the registration is the owner should ever you ever have a dispute and have to go to court. The onus is on the defendant to provide otherwise.
WHAT IS NOT PROTECTED?
You cannot copyright:
- Public domain works
- Factual information
- Brand names, slogans titles
Copyright protection is automatic upon creation of a work. However, a copyright registration certificate with the Canadian Intellectual Property Office (CIPO) provides evidence and presumption of ownership that copyright exists. The person whose name is on the registration is the owner should ever you ever have a dispute and have to go to court. The copyright notice is not mandatory but provides protection in other countries. Also, provides damages and not just an injunction:
© [year of first publication] [copyright owner]. All Rights Reserved.
It is an infringement if a person copies the whole or a substantial part of a work. Copyright is infringed if you sell, lease, distribute, exhibit by way of trade, import for sale or hire, copyright protected work(s) into Canada.
EXCEPTION TO COPYRIGHT INFRINGEMENT: FAIR DEALING
- Copying with permission from the copyright holder
- Works in the public domain
- Works falls under the Fair Dealing exception in the Copyright Act
- Creative Commons licence
Section 29 of the Copyright Act provides an exception for fair dealing for the purpose of research, private study, education, parody or satire does not infringement copyright. Fair dealing exception also includes criticism or review or news reporting if the source is given (and author, performer, maker or broadcaster if in the source). The purposes of parody, satire and education were added to the Act in 2012.
There are exceptions for educational institutions, libraries, archives and museums, computer programs, encryption research, security, incidental inclusion, temporary reproductions for technological processes, ephemeral recordings, retransmission, network services, persons with perceptual disabilities, statutory obligations, etc.
Fair dealing also provides for an exception for non-commercial user-generated content in Section 29.21 (1) “it is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual … (r with the individuals authorization, a member of their household – to use the new work or other subject-matter or to authorize an intermediary to disseminate it” provides that it is for non-commercial purposes, the source is provided, they had reasonable grounds to believe that they were not infringing copyright and the use or dissemination does not have a substantial adverse effect, financial or otherwise etc.
Section 32 (1) of the Act provides those with perceptual disabilities such as being blind or visually impaired can have alternative formats of books and if the work is not available in an alternative format, then translation, adaptation and performance in public for the purpose of permitting access to those with perceptual disabilities.
FACTORS FOR FAIR DEALING
A substantial part of a work can be copied pursuant to fair dealing if it’s for one of the specified purposes in the Copyright Act and meets the SCC’s six-factor test for fariness. The Supreme Court of Canada’s 2004 CCH Canadian Ltd. v. Law Society of Upper Canada decision  1 S.C.R. 339, 2004 SCC 13 (“CCH decision”), provides six non-exhaustive factors (para 60) to determine the fairness of an intended use which were confirmed in a series of decisions in 2012 (Society of Composers, Authors and Music Publishers of Canada v. Bell Canada,  2 S.C.R. 326, 2012 SCC 36 and Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright),  2 S.C.R. 345, 2012 SCC 37). The factors are:
- Purpose – what was the purpose of the dealing
- Character – what was the character of the dealing
- Amount – how much was copied?
- Alternatives – were there alternatives?
- Nature – what was the nature of the work?
- Effect – what was the effect on the original work?
The fair dealing provision does not limit the amount of a work that can be copied and is determined on a case by case basis.
The Copyright Board in Access Copyright (Educational Institutions) 2010-2015 (19 February 2016) Copyright Board decision. [K-12(2016)] has stated that “copying a page or two from a book (other than a book of short works) is not substantial” (page 458) and that “the use of up to 10 percent of a work does not affect the fairness of the dealing (page 288)”.
The SCC has noted that for the purpose of research or private study, “it may be essential to copy an entire academic article of an entire judicial decision.” (CCH, para 56).
CREATOR AND USER RIGHTS
The Supreme Court of Canada has noted that both creator and users are equally important. In the 2002 case of Théberge v. Galerie d’Art du Petit Champlain inc.  2 S.C.R. 336, 2002 SCC 34, it was noted that “The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator” (para 30).
In the CCH decision, the Supreme Court reiterated this and quoting Professor David Vaver that “User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation” (para 23 and 48). User rights were again affirmed in the 2012 decisions of SOCAN v Bell Canada and Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright).
- Wikimedia Commons: A database of nearly 20 million freely usable image, sound, and video files. To find any specific instructions for reusing or attributing images, check the “licensing” section on the image page.
- Flickr Commons: A wonderful collection of public domain images from a variety of libraries, archives, and museums, including the Library of Congress, NASA, the Getty Research Institute, the Museum of Photographic Arts, the Biodiversity Heritage Library, and many more.
- Creative Commons Search: A meta-search tool which can be used to find CC-licensed images on Google Images, Fotopedia, Europeana, etc., as well as other CC-licensed works.
WHAT CAN YOU COPY?
Under Fair Dealing, you can use one entire image from a compilation of images (eg. Gallery of images on the web or a book with images) or up to 10% of an image that is not part of a compilation
- Copyright Statement from Google:“The images identified by the Google Image Search service may be protected by copyright. Although you can locate and access the images through our service, we cannot grant you any rights to use them for any purpose other than viewing them on the web. Accordingly, if you would like to use any images you have found through our service, we advise you to contact the site owner to obtain the requisite permissions.”
- Website Terms – Ensure you also review the original website and review their terms and conditions to see whether there is any prohibition of their use.
- Google Image Search – also permits you to limit your search to images that can be freely used.
- Creative Commons licensed photographs and images – choose the “Usage rights” filter from the “Search Tools” menu on the search results page and limit it to creative commons works.
Journal Articles from Library Research Databases
- Review the terms of the licence in the database to see the parameters of what can be copied
Fair Dealing you can copy and communicate in paper or digital format up to 10% of the work or:
- one chapter from a book
- one article from a journal issue
- one article or page from a newspaper issue
- one entry from a reference work (e.g. encyclopedia, dictionary) Under Fair Dealing you can:
- copy up to 10% of an audio or video work or one track from an album (as long as you are not breaking a TPM)
- copy one image from a compilation (e.g book, atlas) or up to 10% of a stand-alone image (e.g. painting, poster, wall map). Under Fair Dealing you cannot copy an entire copyright protected stand alone image.
- copy a short excerpt of material found on the internet (short excerpt is determined by the type of material you find from the Internet)
Under Exceptions in the Copyright Act you can:
- reproduce an entire textual work (book, journal article) or image for display in class if a copy in the required format is not readily commercially available
- reproduce an entire work from the Internet (image or text) and communicate to your students as long as you are not breaking a TPM or there is no clearly visible notice prohibiting copying; TPMs or Technological Protection Measure include passwords or regional encoding.
- Note: Copying multiple short excerpts from the same copyright protected work is not permissible.
Remedies for Copyright Infringement
- Order for the detention of imported infringing copies
- Accounting of profits
- Recovery of infringing copies
Moral Rights are:
- 1) the rights to receive credit and be associated with your work
- 2) the right not have to have your work changed or modified
Moral rights may only be waived and not sold or licensed.
Author must be citizen or ordinarily resident in Canada or a citizen in a country to which copyright act applies
A published work must first be published in Canada or a country to which copyright act applies
Example Case: Eg. Art rogers v. Jeff Koons
“Puppies” by Art Rogers
“String of Puppies” by Jeff Koons
Dec 10, 1990 Judge Charles Haight of the Federal District Court in Manhattan granted summary judgement to the plaintiff and denied Koon’s claims of fair use based on parody. Koons did not deny that he copied the work but claimed it was fair use by parody. Koons ordered to turn over all infringing materials including the fourth edition of the sculpture, the artists proof.