Canadian Copyright Law

 

Sources referenced:
This page is adapted from: http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr02281.html, and https://www.ic.gc.ca/eic/site/icgc.nsf/eng/07415.html, for non-commercial use under the terms of use applicable to the original versions. Re-use of this document is governed by the terms applicable to the original sources.

 

Purpose

This page provides an introduction to the basic principles of copyright law including copyright ownership, publication, and licensing. It is not intended to be a complete reference on Canadian law regarding copyright and does not address issues relating to ownership of material created during the course of employment at the University of Alberta.

 

What is Copyright?

Copyright is the exclusive legal right to reproduce, publish, and sell a work. In other words, the Copyright Act provides copyright protection to what is referred to as authors/creators.

Under copyright legislation, the author/creator is the party that not only writes something, but may also take a photograph, design computer software, produce audiovisual materials, compose music, design maps, or draw plans or illustrations in either paper format or other mediums. Protection falls under the categories of literary, artistic, dramatic or musical works (including computer programs) and other subject-matter known as performer’s performances, sound recordings and communication signals.

It is important to note that the Copyright Act does not protect ideas, concepts, or themes, but that it does protect the language and words used to express such ideas, concepts and themes.

In Canada, copyright in a work comes into existence when a work is created. Under Canadian copyright legislation rights of the author/creator are protected whether or not he or she has marked the work with the standard copyright symbol "©".

In the simplest terms, "copyright" means "the right to copy." In general, copyright means the sole right to produce or reproduce a work or a substantial part of it in any form. It includes the right to perform the work or any substantial part of it or, in the case of a lecture, to deliver it. If the work is unpublished, copyright includes the right to publish the work or any substantial part of it.

What is considered a substantial part is a nuanced question involving consideration of both quantitative and qualitative aspects in analyzing the material you wish to copy in relation to the work from which it was taken.

 

Why Copyright?

Protecting valuable creations

A poem, painting, musical score, performer's performance, computer program—all are valuable creations, although perhaps no one can measure their worth. Some may earn a lot of money in the marketplace and others none at all. Regardless of their merit or commercial value, Canadian law protects all original works, provided the conditions set out in the Copyright Act have been met. This means that those who own original works have rights that are protected under the Copyright Act.

Simply put, the Act prohibits copying of other people’s work without their permission. Its purpose, like that of other pieces of intellectual property legislation, is to protect copyright owners while promoting creativity and the orderly exchange of ideas.

Protecting the public interest

An important goal of public policy is the enrichment of societal public interest. Canadian copyright policy ensures owners receive fair compensation for their creations for a limited period of time. The law ensures an owner’s copyright interest expires with time to ensure that knowledge becomes part of the public domain.

This goal is accomplished by establishing statutory limitations and exceptions on the rights of ownership. Those who use copyright works are called “users”, and have rights that are also protected under the law. Users’ rights are not simply loopholes to get around copyright protection, rather, they are an essential element to a fair and balanced copyright regime.

“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.” CCH vs. LSUC, 2004

 

What does Copyright Protect?

Copyright applies to every original literary, dramatic, musical and artistic work created by the author/creator using their own skill and judgment. It also applies to other subject-matter consisting of performer's performances, sound recordings and communication signals. For these, the applicable rights may differ somewhat. See the relevant sections in this document for more information.

Copyright applies to all original literary, dramatic, musical and artistic works provided the conditions set out in the Copyright Act have been met. Each of these general categories covers a wide range of creations.

Literary Works

Literary works consist of text-based material as well as computer programs. The category of literary works covers works in both electronic and paper formats.

Examples of literary works (covers works in electronic and paper formats) include:

Memoranda, email messages, journals, books, magazines, text books, talking books (the underlying work, not the recorded voice), periodicals, monographs, government records and reports, pamphlets, newspapers, poetry, genealogical materials, letters, statistics, computer software, statutes, law reports, judicial decisions, forms, court records, databases, published and unpublished research papers, brokers' reports, stock reports, annual reports, manuscripts, microforms (print on plastic), theses, conference proceedings, industry standards, Braille, postings to Internet newsgroups, large print materials, compilations of literary works on CD-ROMs and databases.

Textual works in which a scenic arrangement or acting form is fixed in writing (e.g. a screenplay) fall within the dramatic category.

Dramatic Works

Includes any piece for recitation, choreographic work or mime, where the scenic arrangement or acting form is fixed in writing or otherwise. It also includes cinematographic works (having dramatic character or not) and compilations of dramatic works. Examples of dramatic works are screenplays, scripts, plays and motion picture films. Video recordings, documentaries, films, radio, television and cable programs, plays, choreography, CD-ROMs containing compilations of dramatic works.

Musical Works

Any work of music or musical composition with or without words, including compilations of musical works, sheet music, and songs - with or without words, audiocassettes, audio CDs.

Artistic Works

Artistic works include paintings, drawings, maps, charts, plans, photographs (includes photo-lithograph and any work expressed by any process akin to photography), engravings (includes etchings, lithographs, woodcuts, prints and other similar works), illustrations, sketches, sculptures (includes a cast or model), works of artistic craftsmanship, architectural works (meaning buildings or structures or any model of a building or structure) and compilations of artistic works. Patterns, art slides, maps, atlases, paintings, architectural drawings, plans, stage and costume designs, digital images, drawings, photographs, charts, mosaics, art prints, compilations of artistic works on CD-ROMs and on Websites.

A Compilation is a work resulting from the selection or arrangement of literary, dramatic, musical or artistic works or parts thereof, or a work resulting from the selection or arrangement of data. Also, a compilation containing two or more of the categories of literary, dramatic, musical or artistic works is deemed to be a compilation of the category making up the most substantial part of the compilation.

Performer’s Performances

The following are protected by copyright when done by a performer:

• a performance of an artistic, dramatic or musical work, whether or not the work was previously fixed (recorded) and whether or not the work's term of copyright protection has expired;

• a recitation or reading of a literary work, whether or not the work's term of copyright protection has expired; and

• an improvisation of a dramatic, musical or literary work, whether or not the improvised work is based on a pre-existing work.

Recorded performances of actors, authors, singers, musicians and dancers on tapes, cassettes, CDs, CD-ROMs, video recordings and films, compilations of performances by performers on records, CDs and in audiovisual formats.

Sound Recordings

Sound Recording means a recording consisting of sounds, whether or not a performance of a work, but excludes any soundtrack of a cinematographic work where it accompanies the cinematographic work. CDs, talking books, oral history tapes, vinyl albums, phonographs, audio books, audio cassettes, papers recorded at seminars, audio tapes of speeches and lectures, sound effects, spoken word recordings, language cassettes for ESL, compilations of sound recordings on CDs.

Communication Signals

Communication signals include radio waves transmitted through space without any artificial guide, for reception by the public (e.g. television and radio signals).

 

How Long Does Copyright in a Work Last?

General Term

Generally, copyright lasts for the life of the author, the remainder of the calendar year in which the author dies, and for 50 years following the end of that calendar year. Therefore, protection will expire on December 31 of the 50th year after the author dies. Some exceptions exist for specific types of works.

Joint Authorship

In the case of a work that has more than one author, the term will last for the remainder of the calendar year in which the last author dies, and for 50 years after that.

Unknown Author

In the case of a work where the identity of the author is unknown, copyright in the work shall exist for whichever is the earlier of:

• the remainder of the calendar year of the first publication of the work, plus 50 years; or

• the remainder of the calendar year of the making of the work, plus 75 years.

Posthumous Works

These are literary, dramatic or musical works, or engravings, protected by copyright that have not been published, performed in public or communicated to the public by telecommunication during the lifetime of the author. Please see section 7 of the Copyright Act for details regarding the term of copyright for such works.

Crown Copyright

Copyright in government publications created for or published by the Crown lasts for the remainder of the calendar year in which the work is first published, and for 50 years after that.

As per the Copyright Act, copyright in a work exists for the life of the author/creator, the remainder of the calendar year in which he or she is deceased, plus fifty years after the end of that calendar year.

For Crown copyrighted works, there is a slight difference. Section 12 of the Copyright Act stipulates:

12. Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year. [S.C. 1993, c. 44, s. 60(1)]

 

What is the Public Domain?

When the term of copyright protection ends or expires, works fall into the public domain. A work in the public domain is free for everyone to use without permission or payment of royalties. In Canada, you can even modify public domain works without permission. Works in the public domain can be used free of charge and do not require written permission from the author/creator.

Works can be in the public domain for a variety of reasons. Examples: the term of the copyright has expired, the work was not eligible for copyright protection in the first place, or the copyright owner has authorized the public to use the work without permission or payment.

Some examples of works in the public domain are explained below.

Public Domain refers to works in which copyright has expired and therefore belong to the public.

Titles, Names, Slogans, Short Word Combinations

To be protected, a work must be something substantial. Sometimes an original and distinctive title can be protected.

Ideas

Copyright protects the expression of an idea but does not extend to the idea itself. Until an idea is expressed in a fixed form (i.e. paper, electronic or digital media), there is no copyright protection.

Facts

It is the expression of facts that is protected by copyright, not the facts themselves. For example, the facts in a magazine article are in the public domain. Anyone can use those facts as long as they do not copy the way the author of the article has expressed them. As long as you use your own words, you will not infringe copyright.

 

Duration of Copyright in Subject Matter Other than "Works"

Performer’s Performance

Copyright lasts until the end of 50 years after the end of the calendar year in which the performance occurs.

If the performance is fixed in a sound recording before the copyright expires, the copyright continues for 50 years after the end of the calendar year in which it is first fixed.

If the sound recording is published before the copyright expires, the copyright continues until 50 years after the end of the calendar year in which the first publication occurs or 99 years after the end of the calendar year in which the performance occurs, whichever is earlier.

Sound Recordings

Copyright lasts until 50 years after the end of the calendar year in which the first fixation of the sound recording occurs. If the sound recording is published before the copyright expires, the copyright continues for 50 years after the end of the calendar year in which the first publication occurs.

 

Affixing the © Symbol

Marking a work with the copyright symbol is not mandatory under Canadian copyright law but some other countries do require it. The marking consists of the symbol ©, the name of the copyright owner and the year of first publication.

Even though not always required, marking is useful since it serves as a general reminder to everyone that the work is protected by copyright. This symbol may be used even if the work is not registered.

 

Who Owns Copyright?

Author/Creator

As a general rule, the author/creator is the first owner of copyright in a work. The author/creator of a work is furthermore, the only party that can sell, license or give away copyright. The author/creator can also transfer copyright in his works in its entirety or in parts. Where permission to use copyrighted material is needed, it is only the author/creator who can permit usage of his works.

Thus, ownership of copyright is like a chain, with the author/creator being the first owner, therefore being the first link in the chain. Links are added each time the author/creator sells, licenses, or gives away all or part of the copyright.

Someone other than the Author

An author of a work does not always own copyright. In some cases, copyright is owned by another person (individual or other legal entity), such as the author’s employer, or a book publisher.

If a work was created during the course of employment, the author’s employer is normally the copyright owner except when an agreement is in place to state otherwise (e.g. a collective agreement).

An author may transfer ownership via an assignment of their rights, for example, in the terms of a publishing contract as a condition of publication.

Performer, Maker, or Broadcaster

Where the subject matter is something other than a work, the copyright owner is usually:

• the performer in the case of a performer's performance;

• the maker in the case of a sound recording (person by whom the arrangements necessary for the first fixation of the sounds are undertaken);

• the broadcaster who broadcasts the communication signal in the case of a communication signal; or

• any other person who has obtained ownership through an assignment.

 

Rights of Ownership

Economic Rights

The economic rights available to owners under the Copyright Act include the right to produce, reproduce, publish, translate, authorize, and convert a work.

Moral Rights

There is a provision in the Copyright Act (R.S.C., Chapter C-42, Section 14), which sets out the moral rights of an author/creator. Moral rights are personal to an author/creator regardless of who owns copyright. Unless an author/creator waives his moral rights, these rights cannot be assigned.

An author/creator may exercise the following moral rights as provided for in the Copyright Act:

• Right of Paternity

This right includes the right to claim authorship, the right to remain anonymous, or the right to use a pseudonym or pen name.

• Right of Integrity

In the case of a work being adapted, modified or translated, the author/creator's right of integrity must be respected. As stipulated in the Copyright Act, an author/creator's right to the integrity of his work is violated if the work is a distortion, mutilation or modification of the work that is prejudicial to the honor or reputation of the author/creator.

• Right of Association

Part of the Right of Integrity is an author's/creator's Right of Association. This means that an author/creator has the right to prevent anyone from using his work in association with a product, service, cause, or institution.

Moral Rights in a work exist for the same period of time as does copyright in a work.

 

Physical Ownership vs Ownership of Copyright

There is a difference between owning a physical object and owning its copyright. Ownership of a physical object does not include ownership of the copyright of that object. For example, the purchase of a magazine, book, photograph, map, film, or sound recording does not mean that you also own copyright of these objects. Therefore, in order to use the physical object outside of its intended purpose, you are obliged under the Copyright Act to obtain written permission from the author/creator. Failure to do so could be deemed an infringement of copyright.

 

Registering Copyright

Benefits of registration

The Copyright Act provides that a certificate of registration of copyright is evidence that copyright exists and that the person registered is the owner of the copyright. However, please note that the Canadian Intellectual Property Office is not responsible for policing, monitoring, or checking on registered works and how they are used, nor can it guarantee that the legitimacy of ownership or the originality of a work will never be questioned.

Filing an Application

To obtain a registration of copyright, you must file an application with the Canadian Intellectual Property Office and pay their required fee. Instructions, forms and fee rates are available on the Canadian Intellectual Property Office’s page at http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr00003.html.

There is no review, assessment of approval of works as a condition of registration, so do not send a copy of your work with your application. The responsibility for ensuring a work is original and meets the requirements for registration resides with the applicant.

If you submit your application online you will receive a discount on the application fee. If you prefer, you may send your completed application by mail or by facsimile to the Canadian Intellectual Property Office at the regular fee rate.

 

Publication of an Original Work

What is publication?

Publication means making copies of a work available to the public, the construction of an architectural work (building or structure or any model of a building or structure), and the incorporation of an artistic work into an architectural work.

The following do not constitute publication:

• the distribution of photographs/engravings of sculptures or architectural works;

• the exhibition in public of an artistic work;

• the performance of a literary, dramatic, musical or artistic work in public; and

• the communication of a literary, dramatic, musical or artistic work to the public by telecommunication.

Transferring ownership vs. Licensing Use

Economic rights can be transferred in whole or in part. Ownership is transferred via an assignment or a copyright transfer agreement.

An assignment occurs when a copyright owner transfers part or all of their economic rights to another party. The assignment may be for the whole term of copyright or for a certain part of it and may be limited to certain jurisdictions or specific formats.

Some owners may choose to retain ownership of their economic rights and instead licence use of some or all of their rights to others. A licence does not transfer ownership of copyright, it simply grants permission to someone other than the owner to use the work, for certain purposes and under certain conditions.

Review terms of contracts and agreements

Prior to signing an agreement, owners should review the terms of the agreement carefully to ascertain whether they are transferring ownership via an assignment or simply licensing use of their work to someone else. This distinction matters as it affects how and whether they may use their work in future for any purpose (e.g. personal use, teaching, further licensing).

 

Types of Licences

The terms, non-exclusive, sole, and exclusive define the types of licences that are typically granted in Canada.

Non-Exclusive

The term non-exclusive means there is no limit to the number of licences that can be granted. A non-exclusive license is the most common type of license issued when licensing works protected under law.

When a work is licensed on a non-exclusive basis it means that the copyright owner reserves the copyright and grants rights to the licensee for a specific purpose, duration and territory.

Sole

With a sole licence the copyright owner reserves its rights to make use of and copy its own work, but agrees not to license any other person than the sole licensee.

Exclusive

The last type of licence is an exclusive license. This means that the person receiving the permission/license will be the only one with the rights to use the work. This even prevents the person who grants the permission from reproducing his own work. This is seen as a disguised assignment, abandonment or sale of copyright.

 

Infringement of Copyright

Infringement

Infringement is the legal word for breach or violation of the rules in the copyright law. There are two kinds of infringements: indirect and direct.

Indirect Infringement

Indirect infringement refers to persons who deal with infringing copies, or who, without legal authority, permit a public performance of a work. These provisions usually concern commercial dealings through sales of copies, commercial distribution, and trade.

Direct Infringement

Direct infringement is where someone, without permission, does something only the copyright owner has the right to do or authorize. For example, only the copyright owner has the right to make a copy or authorize the making of a copy. When a person makes a copy this is direct infringement unless permission is obtained or an exception applies.