This article summarizes Canadian copyright law by answering the question of what is copyright. It provides an understanding of the law within a Canadian context. Copyright is a right created by statute, The Copyright Act. The Copyright Act protects original literary, musical, dramatic, and artistic works, which including written materials and computer software. The Act provides that:
“Every original literary, dramatic, musical and artistic work includes every original production in the literary, scientific or artistic domain, whatever may be the mode of expression”.
The Copyright Act gives a copyright owner the 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. In a previous article, we discussed the definition of copyright. In this article, we will go in more depth about the various bundle of rights in Copyright, copyright infringement and how to file a copyright application with CIPO.
What Is Copyright?
Copyright provides the owner with the exclusive legal right to print, publish, perform, film, record an original literary, artistic, musical or dramatic work, and to authorize others to do the same. These include things like artwork, photography, graphic design, music, text, source code and architectural works.
Copyright provides an exclusive right to an author who is a citizen or ordinarily resident in a treaty country (i.e. a Berne Convention country, a University Copyright Convention country or World Trade Organization country) to produce, reproduce, perform, or publish an original work or a substantial part of a work in any material form. It applies to any original literary work, artistic work, dramatic work, musical work, computer programs, performer’s performances, sound recordings and communication signals and other original creative works as specified in the Copyright Act.
Copyright includes the following rights (which may be licensed individually or bundled):
- Publish the work, if unpublished
- Produce, reproduce, perform, publish any translation of the work
- Convert a dramatic work into a novel or other non-dramatic work
- Convert any non-dramatic work into a dramatic work by way of performance in public or otherwise,
- Make a sound recording, cinematograph film or other contrivance by means of which a literary, dramatic or musical work may be mechanically reproduced or performed
There is a difference between the physical ownership of a work versus copyright of a work in understanding what is copyright.
Copyright right is a statutory right created by the Copyright Act (Canada) which you can read about here in understanding what is copyright. The US has their Copyright Act which has some differences and similarities than the Canadian Copyright Act which you can read about here.
What is Copyright: Exclusive Rights Granted by the Copyright Act
Copyright is a bundle of economic irghts (i.e. copyright) and moral rights (and in the case of music, neighbouring rights) pursuant to the Copyright Act. Section 3 of the Copyright Act provides a copyright owner with the following exclusive rights:
- make a recording
- communicate by telecommunication
- 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.
Copyright Is A Statutory Right
Copyright exists because the government of Canada has passed a law, The Copyright Act, which grants creators a bundle of property rights called Copyright. Copyright is a bundle of economic and moral rights. It is a property right created by statute.
It is intangible meaning it’s not in a physical form such as a car. We think of tangible property such as a car, sculptures, antiques because we can see and touch it. Copyright is intangible and gives creators the legal rights to control when, where and how their creation is used.
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.
This includes music and literary works (which refers to books, periodicals, newspapers, journals, papers, software, directories, etc.).
What Are Artistic Works?
Artistic works are defined in section 2 of the Copyright Act includes:
- Paintings (use dictionary definition)
- Drawings (illustrations, sketches, logos etc.)
- Photographs (photo-lithographs and any works produced by any process analogous to photography)
- Engravings (includes etchings, lithographs, woodcuts, prints and other similar works not being photographed)
- Sculptures (casts and models)
- Works of artistic craftsmanship
- Architectural works (means any building or structure or any model of a building or structure)
- Compilations of artistic works
Copyright in Adaptations, Editing, Modifications, Arrangements, Translations, Compilations etc.
There is a new copyright to a work once you edit, adapt, or translate a substantial portion of it provided that you have the right to do so.
What is Copyright – What does it mean to reproduce?
The reproduction right is the right to reproduce a work or any substantial part in any material form and to authorize any such reproduction (s. 3(1)
- Internet – digital reproduction
- By Hand
Who owns Copyright?
The general rule is that the creator or “author” of a work is the first owner of the copyright (s. 13(1)) in the work with the following exceptions:
Work Made in the Course of Employment (s. 13(3))
If the author is an employee whether, under contract or apprenticeship, it is owned by the employer unless there is an agreement to the contrary.
Eg. For photographs, the photographer owns it even if you commission it so make sure you get it in writing if you want to own the copyright).
If the work is an article or other contribution to a newspaper, magazine or similar periodical, then it is owned by the author unless there is an agreement to the contrary
Copyright belonging to Her Majesty (s. 12)
Her Majesty or any government department for whom work is done owns the copyright in the work unless there is an agreement with the author.
The term of copyright when owned by Her Majesty is the remainder of the calendar year of first publication of the work and for a period of fifty years following the end of that calendar year.
Registration of copyright is voluntary and not mandatory but advisable to give others notice of your copyright.
What do you need in order for copyright to subsist?
- It has to be original (section 5) and it must be in a fixed or material form.
- Originality means that the work or a substantial part of the work cannot be copied from another work.
- Copyright in Ideas
- I.e. there is no copyright in ideas but there is copyright in the expression of these ideas.
Copyright “subsists” meaning that there is no special procedure to be followed in order to obtain copyright in a work. The creation of an original work of art automatically creates copyright
Copyright exists automatically upon creating a work. There is no need to register a 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.
In order for copyright to subsist in Canada, at the time the work was made, the author must be a citizen or subject of, or a person ordinarily resident in, a treaty country (a corporation has to have its headquarters in a treaty country) (s. 5(1))
- 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
In order for copyright to subsist, it has to be original and in a fixed or material form.
There is no copyright in ideas but there is a copyright in the expression of these ideas.
There is no copyright in the idea for a show but once you “fix” the show in a material form and write it down or produce it, copyright will automatically subsist.
What is Copyright – What Can You Copyright?
Copyright is automatic upon creation and fixed in a tangible form. You can copyright:
- Sound Recordings
- Communication signals in a fixed form
You cannot copyright:
- Ideas (copyright does not subsist in ideas but the expression of those ideas in a fixed form)
- Public domain works
- Factual information
- Brand names, slogans, titles, etc.
- A substantial part of another copyright protected work
- A work that is not original
The above will help you understand what is copyright.
A copyright notice is not mandatory but provides protection in other countries. The following is a sample copyright clause:
© [Year of First Publication]. [Copyright Owner]. All Rights Reserved.
Do Foreigners Have Copyright in Canada?
Copyright is recognized through two major international treaties or conventions called the Berne Copyright Convention (“Berne”) dating back to Berne Act of 1886 and most recent version is the Rome Act signed June 2, 1928, and the Universal Copyright Convention (“UCC”).
Canada is a signatory to both treaties. Therefore, the copyright of Canadians is recognized in most countries around the world. Canada must grant to nationals of other countries who have signed these treaties, the same rights that we give to our own creators.
The UCC requires that you place a copyright notice but there is not a requirement under the Berne Convention.
The UCC does not recognize moral rights of creators like the Berne.
What is Copyright – Term of Copyright
Generally, copyright subsists in a work for the life of the author, the remainder of the calendar year in which he dies and 50 years thereafter (s.6). Read our article on the term of copyright.
In other countries such as the US, the copyright term is life plus 70 years. The Copyright Act provides that the author of a work is the first and automatic owner of the copyright (unless it is a work for hire or work made in the course of employment). The copyright term varies for certain situations such as for nationals of other countries, joint authors, unknown authors, posthumous works, Crown works, photographs and other certain situations. Consequently, it’s important to look at the Copyright Act (R.S.C., 1985, c. C-42) to check the proper term of copyright for the specific work in question.
The following are some special cases where the term of copyright is different:
Works of joint authorship? The rule is life plus fifty years following the end of the calendar year of the last surviving author of the work.
When a work is published after an author’s death (posthumous)? Copyright protection is calculated until the end of the calendar year and fifty years from first publication.
Anonymous works? Where the identity of the author is unknown, copyright shall subsist for whichever following terms ends earlier:
1) 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
2) the remainder of the calendar year of the making of the work and a period of seventy-five years following the end of the calendar year
After the copyright term expires, the work goes into the public domain.
Once the duration of copyright has expired, the work falls into the public domain. E.g. Mozart, Shakespeare. Therefore, the work can be copied without the necessity to obtain permission. It is important to note that the term of copyright differs from country to country. So where a work may be protected in one country by copyright, in another it may be in the public domain. (In Europe, the term is different).
Any new edition, translation, adaptation, illustration, annotations etc. added to an existing work is subject to a new term of copyright protection even if the original work was in the public domain. E.g. an edited version of a Shakespearean play. However, the public domain parts of the revised version remains in the public domain.
What is Copyright – Economic vs. Moral Rights
The Copyright Act grants creators both economic and moral rights.
Economic rights include:
- 3(1)(a) the “sole right” right “to produce or reproduce the work or any substantial part thereof, in any material form whatever”
- and to authorize others to reproduce or produce
- The right to reproduce is the reproduction right
- The right to produce a work in the gallery and museum context is the exhibition right
- 3(g) to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan,
The copyright owner can sell (i.e. grant or assignment) or lease (i.e. licence) their economic rights
A copyright owner can limit or control the grant or licence through:
- The period of time
- For a particular purpose
- The geographical area
- A licence is not transferable
- An exclusive licence effectively can have the same effect as an assignment but the artist can still own the copyright and moral rights
- An assignment involves a transfer of ownership whereas a license does not involve a change in ownership
- An assignment or licence must be in writing by the owner or the right or the authorized agent
Exclusive & Non-exclusive License
With an exclusive license, the licensor no longer retains any of the rights that have been granted to an exclusive licensee during the territory and term of the license and any other specified restrictions.
It is a grant of an interest in copyright pursuant to s. 13(4) of the Copyright Act and must be in writing
A non-exclusive license does not need to be in a written document to be valid. A non-exclusive license may be in any form and does not need to be signed or in writing.
An exclusive licensee may sue a third party for infringement but not the owner licensor of the copyright. The owner licensor is only liable to the exclusive licensee for a breach of contract.
What are Moral Rights?
Copyright also protects the reputation of the copyright owner. Even if an author assigns their copyright, they still retain their moral rights. There are two rights in moral rights:
1) The right to receive credit and be associated with your work
2) The right not to have your work changed or modified
Moral rights accrue only to authors. Moral rights can only be waived and not sold, licensed or assigned. Duration of a term of moral rights is life of the author plus 50 years. Full remedies for moral rights infringement are available as for copyright.
The following paragraph is an example of a moral rights clause:
Moral Rights. The Artist reserves all moral rights in the Artwork. The Client acknowledges that the Artist has not waived any moral rights in the Artwork. The Client agrees to protect and conserve the Artwork’s aesthetic integrity and will at all times respect the Artist’s moral rights in the Artwork. It is understood that the specific location of the Artwork and its permanent public installation is integral to the Artwork and this Agreement. The Client agrees to make all reasonable efforts to maintain the integrity of the Artwork as enhanced by the Site. The Client will not make any use of the Artwork in a manner which would reflect unfavourably on the Artist’s name or reputation as an Artist or which would violate the spirit of the Artwork or interfere with the Artworks’ creative intent. The Client agrees that the no part of the Artwork will be separated from the whole. The Client cannot modify, edit, change or alter the Artwork in any way whatsoever.
Moral rights provide for:
- The right to the integrity of the work; and
- The right to paternity (and not be associated with any product or service)
The right to the integrity of a work is infringed if the work is “to the prejudice of the honour or reputation of the author, distorted, mutilated or otherwise modified”
The artist who has a painting, sculpture or engraving distorted, mutilated or otherwise modified is deemed to have his or her right to the integrity of the work infringed, subject to certain exceptions (s. 28.2(1)(a)
It is the author’s right to the integrity of the work
- prevents distortion or mutilation of the work; and
- the right to prevent the use of the work for the promotion of the wares or services of another s. 28.2(a)(b)
- In a legal action, the author of the work has to prove his or her honour or reputation has been prejudiced by the association (it is not deemed)
The artist’s integrity is not infringed if:
- It is a change in location of the work
- A change in the physical means by which the work is exposed
- A change in the physical structure containing the work
- Steps taken in good faith to restore or preserve the work
Michael Snow took the Eaton Centre to court before the passage of the 1988 amendment.
Under the old law, he had to bring in experts to satisfy the court that tying red bows around the necks of the gees in his work “In Flight” was prejudicial to his honour or reputation.
Under the new law, the Eaton centre would have to bring in experts to show that the red bows were not prejudicial to Snow’s honour or reputation. The burden of proof is on the person who modifies an artistic work.
2.The right to be associated with his or her work by name or by a pseudonym, where reasonable in the circumstances
- the right of paternity (i.e. to be credited for that work as the author). Section 14.1.
- The work of a vegetarian artist may not be included in a show sponsored by a meat packer without violating the artist’s right of integrity
- 3. The right to remain anonymous s. 14.1(1)
14.1 (1) The author of a work has, subject to section 28.2, the right to the integrity of the work and, in connection with an act mentioned in section 3, the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.
The following is a sample credit and copyright notice:
Credit and Copyright Notice. The Client shall ensure that any use of the Artwork in any promotional materials or any other use in which the Artist has provided permission in accordance with the terms herein shall have a credit and copyright notice identifying the Artist as the creator and copyright owner of the Artwork along with the location of the artwork and the Artist’s website.
What Is Copyright – How Do You Infringe Copyright
The Copyright Act states that it is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that only the copyright owner has the right to do. (section 27 of the Copyright Act).
Copyright is infringed when the whole or a substantial part of the copyright work has been copied without the consent of the copyright owner.
If you copy a “substantial” part of a copyright protected work, you are infringing unless it falls under one of the exceptions.
Remember that a copyright owner has the exclusive right to reproduce or grant permission to reproduce.
Therefore, the reproduction of a work without permission by the copyright owner is considered infringement unless it falls into ones of the exceptions (e.g. fair dealing) or if permission is obtained from the copyright owner.
Copyright is infringed if you sell, lease, distribute, exhibit by way of trade, import for sale or hire copyright protected work(s) into Canada without the permission of the copyright owner.
Remedies for Copyright Infringement
- Order for the detention of imported infringing copies
- Accounting of profits
- Recovery of infringing copies
Fair Dealing Exception
The Copyright Act provides the defence of fair dealing under the Copyright Act. Meaning you may have copied and infringed but you can raise the defence of fair dealing if you fall within it.
There are two prerequisites to determine whether someone can use “fair dealing” as a defence to a claim of copyright infringement.
First, the dealing must be fair.
Second, the dealing must be for one of the specified purposes in the Act such as private study, research, criticism, review or news reporting.
Fair dealing is not an easy defence to provide and depends on various factors such as:
- The nature of the work copied
- The amount and significance of the work copied
- The use made of the copy
- the degree to which the copy competes in the market with the original
- The availability of a licence from a collective society (SOCAN, AVLA, Access Copyright etc).
How to Avoid Infringement
Use clearance companies for stock photos, music libraries – Network Music, Firstcom Music, OGM Production Music, Associated Production Music and Killer tracks,
If the work falls into the public domain, then you are not infringing if you are using it. Once copyright term has expired, it falls into the public domain.
You can get permission directly from the copyright owner
You can use an “insubstantial part” of an original copyright protected work.
You can obtain a licence from a copyright collective society that administers the rights and payments on behalf of copyright owners as a collective.
What Is Copyright – Advantages of a Copyright Registration
Copyright is automatic and a copyright registration is not mandatory. 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 you ever have to dispute it or go to court. The onus is then on the defendant to prove that you don’t own the copyright otherwise. There are exceptions to copyright infringement under the fair dealing provisions of the Copyright Act. If a defendant can prove that he/she was not aware that copyright subsisted in the work, then the plaintiff is only entitled to an injunction (not damages).
A copyright owner may register their copyright on a purely voluntary basis as registration is not required for copyright protection. However, registration of a copyright with the Canadian Intellectual Property Office provides advantages with a presumption of ownership with a copyright registration leaving the other side to disapprove the ownership of copyright.
What Is Copyright – How to File a Copyright Application
You can file a copyright registration by electronic means, mail or fax. You can file online at the Canadian Intellectual Property Office (http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr00021.html). You can also file it in person at a regional Innovation, Science and Economic Development Canada office (http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr04014.html). The fee to file the application is $50 if you do it online. Otherwise, the fee is $65.
The application requires the following information:
- the title of the work
- category of the work (literary, musical, artistic, dramatic)
- whether a work is published (and if so, the date and place of first publication), owner, author
- a declaration (that the applicant is the author, owner or an assignee or has a copyright interest through a licence)
- Different parts of the application will need to be filled out for works related to performer’s performance, sound recording or communication signal.