Copyright Law

Copyright Law

Note: The information provided on this webpage is of a general nature and does not constitute legal advice. Moreover, it addresses only some issues in copyright law. If you have questions about how copyright law applies in a particular situation, you should consult a lawyer.

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F.A.Q.

Contents

What is copyright?

Copyright is a system of laws for promoting both the creation of and access to artistic, literary, musical, dramatic and other creative works. It is usually presented as a balance between promoting the public interest in the encouragement of the creation and dissemination of works of the arts and intellect, and obtaining a just reward for the copyright holder (or, more accurately, to prevent someone other than the holder from appropriating whatever benefits may be generated). For this reason, the exclusive rights of copyright holders, sometimes called monopoly rights, are limited to those found under the Copyright Act. For instance, as the right to determine who may read a copyright work is not included under the Act, a copyrighted book may be read by anyone. Furthermore, those rights that are granted under the Act are subject to further limitations, such as the "fair dealing" exception in favour of public access for activities such as news reporting, research, criticism or private study, or for other enumerated purposes, such as archiving by an educational institution.
 
The proper balance lies not only in recognizing the copyright holder's rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them. In principle, the creator, i.e., the author, maker or artist, etc., has the exclusive right to authorize or to prevent copying. In practice, the power to control copying is more frequently held by publishers and distributors to whom the creators have assigned their rights. Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.
 
For a more detailed discussion of the balance in copyright, refer to What is the "copyright bargain"? and the Supreme Court of Canada's decisions in Théberge v. Galerie d'Art du Petit Champlain Inc. and CCH Canadian Ltd. v. Law Society of Upper Canada.
 

What law governs copyright in Canada?

In Canada, the federal Parliament has exclusive legislative authority over copyright. Section 89 of the federal Copyright Act provides that no copyright can subsist in Canada other than under the Act. However, changes to the Copyright Act are often influenced by Canada's involvement in international treaties and trade agreements.
 

What is intellectual property?

From a legal perspective, copyright is one of many mechanisms for protecting products of mental creation, which are collectively known as "intellectual property". In addition to copyright, other forms of intellectual property protection include:
 
  • patents, which give an inventor an exclusive right for a limited period of time to exploit inventions, such as new products or processes, for a limited time;
  • trademarks and trade names, which give the holder the right to control the use of a mark or other identifier of a product or service, i.e. brand names and the names of businesses; and,
  • industrial design registrations, which give the designer the exclusive right for a limited period of time to exploit novel, non-functional and non-technological aspects of the appearance of useful products, such as the unique shape of a lamp.

What rights do creators and copyright holders have?

Under the Copyright Act, the copyright holder has the sole right to reproduce the work or any substantial part of it in any form, to perform the work or any substantial part of it in public, and, if it is unpublished, to publish the work or any substantial part of it. Depending upon the nature of the work, the copyright owner might also enjoy a number of additional rights enumerated in the Act. These broader rights include the right to produce, perform or publish translations of the work, to adapt the work into other mediums, and to publicly present or perform the work. The copyright holder also has the right to authorize any of the above actions. Any of these rights, collectively known as economic rights, can be assigned to another party. For instance, the author of a work can give the publisher of the work the right to enforce these rights. The Copyright Act also bestows upon the author a series of personal rights called moral rights that cannot be assigned.
 

What are moral rights?

The Act provides creators of copyright works with a second set of rights, known as moral rights. Under s.14.1(1) of the Copyright Act, an author of a work has a right to the integrity of their work and to be associated with their work by name, unless they choose otherwise. Moral rights continue even after a work is no longer in the creator's possession. Furthermore, unlike the economic rights discussed above, moral rights are personal rights that cannot be assigned to another person, such as a publisher, although they can be waived in whole or in part. Thus, even if the economic rights in a creative work have been assigned, the work cannot be so modified as to constitute a mutilation or distortion that would harm the honour or reputation of the creator. The duration of moral rights is the same as for other rights.
 

What are neighbouring rights?

The Copyright Act creates another limited set of rights for owners of subject matter falling within three categories: communication signals, performer's performances, and sound recordings.
 
The neighbouring right for communication signals protects broadcasters against unauthorized fixation, reproduction, or simultaneous rebroadcasting of their broadcast signals. It also gives the broadcaster rights over the performance of television communication signals to the public in a place where an entrance fee is paid. The broadcaster's right in a communication signal prevents third parties from unjustly benefiting from the broadcaster's investment in the creation of the signal. This right is limited to broadcasts, transmitting over the airwaves; it does not apply to transmissions via cable, satellite, or the Internet.
 
The neighbouring rights in sound recordings and performer's performances entitle makers of sound recordings and performers, respectively, to "equitable remuneration" when their performances and sound recordings are either performed in public or broadcast. Prior to the inclusion of these rights in the Copyright Act, only "authors" - the composers of the music and lyrics - enjoyed the right to be paid for public performance or broadcasting. Now, performers and producers receive royalties whenever their works are broadcast publicly.
 

Can anything be copyrighted?

No. For a work to be subject to copyright protection, (putting subject matter of neighbouring rights aside) it must meet several requirements:
 
  • First, a work must fit into one of the four major categories of works in the Copyright Act, namely literary, dramatic, musical or artistic works.
  • Second, the work must be fixed in some tangible form, meaning that the work has been reduced to material form (and is no longer simply an idea in prospective authors head).
  • Third, the work must be "original". In the recent Supreme Court of Canada decision in the CCH case, Chief Justice McLachlin stated that:
For a work to be "original" within the meaning of the Copyright Act,it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment... This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise.
 
  • Finally, there must be a connection between the creator of a protected work and either Canada or a member of another other international trade or copyright treaty to which Canada is a party. Since almost every significant state qualifies, few works fall outside the net of protection and this requirement has become largely moot.

Can ideas be copyrighted?

Only the expression of an idea can copyrighted. The underlying idea itself remains in the public domain. Simplified, this means, for example, the general plot of a book in the writer's head could not be copyrighted, but the manuscript incorporating the plot could. The claim is not to ideas, but to their precise and permanent expression. This principle - known as the "idea/expression dichotomy" - provides an important check against the over-expansion of copyright.
 

Do I have to register my copyright in order to get protection?

No. Although copyrights may be registered in Canada, protection is effective even without registration. A copyright arises once a work is made and fixed, or once a performance or broadcast signal occurs. The copyright remains in full force whether or not it is registered. However, registration may make it easier to prove the existence of the copyright.
 

Do I have to mark my work in any special way to claim copyright protection?

No. Copyright arises automatically upon creation, provided the work meets the minimum criteria for copyright protection. See Can anything be copyrighted?.
 

How long does copyright last?

In Canada, copyright in a written work lasts for the life of the author plus fifty years beyond the end of the calendar year in which they died (Section 6 of the Copyright Act). For example, if a poet penned a poem in 1925 and lived another eighty years, the poem would not enter the public domain until December 31, 2055, for a total of 130 years. However, if the same poet died in 1936, her poem would have entered the public domain at the end of 1986.
 
There are a few exceptions to this general rule. For example, when there are multiple authors, protection lasts until fifty years after the last author dies (Section 9(1)). For works for which the true identity of the author is unknown, protection lasts for the shorter of fifty years from the first publication or seventy-five years from the creation of the work. Until recently, unpublished works were granted perpetual copyright; recent reforms have amended this rule, treating them in a similar manner to published works.
 
Works in other media such as film and sound recordings are granted different terms which are generally not linked to the life of the author. Instead, they are granted a fixed term from the time of their creation.
 
The duration of copyright also differs in some jurisdictions. Europe recently increased its standard term to seventy years past the author's death (while refusing to protect foreign works beyond the term in their country of origin). The United States followed suit in 1998 by adding twenty years retroactively to all its existing and future copyrights. See Sonny Bono Copyright Extension Act, 1998. Calls for longer periods of protection continue in Canada; however, others suggest the term of protection is already much longer than can be justified as an incentive for the creation of new works and that any further extension of copyright terms would only serve to enrich the copyright holder at the expense of the public.
 

What is the "public domain"?

The public domain refers to works that are not protected under the Copyright Act, either because their term of protection has expired, or because they are not considered proper subject matter for copyright protection. Works in the public domain can be used and copied by anyone without liability for infringement. Public domain material is different from material for which the author has stated that public use is permitted (under, for example, a Creative Commons license), but which would otherwise fall under the Act.
 

What is the "copyright bargain"?

Copyright, in the common law tradition, 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. As early as 1769 in the case of Millar v. Taylor, an English judge wrote:
 
It is wise in any state, to encourage letters, and the painful researches of learned men. The easiest and most equal way of doing it, is, by securing to them the property of their own works... He who engages in a laborious work... which may employ his whole life, will do it with more spirit, if, besides his own glory, he thinks it may be a provision for his family.
 
But, as the Supreme Court recently decided in the Théberge case, the "proper balance among these and other public policy objectives lies not only in recognizing the creator's rights but in giving due weight to their limited nature." Maintaining the terms of this bargain continues to be an important, and contentious, issue in Canadian copyright policy.
 

What is "fair dealing"/"fair use"?

In Canada, the principal exception to the exclusive rights of copyright holders is called "fair dealing". Fair dealing creates a limited number of exceptions, including private study, research, criticism, review and news reporting. This list is exhaustive, such that fair dealing applies only to those categories of dealings that are specifically mentioned.
 
The equivalent user right under American copyright law, "fair use," is, by contrast, an open-ended system which adopts a non-exhaustive approach to categories of dealings, and focuses instead on principles for determining whether a use strikes an equitable balance between user and copyright holder interests. These principles include, but are not limited to: determinations of the purpose and character of the use; the nature of the work; the amount and substantiality of the portion used in relation to the entire work; and, the effect of the derived work on the market for the original. Fair dealing relies on similar fairness principles, but only within the scope of the itemized categories of dealings. The term fair use is thus more expansive than fair dealing and the terms should not be used interchangeably.
 

What kinds of uses are legal in the United States under fair use but not clearly legal in Canada under fair dealing?

  1. Parody
    In Canada, unlike the Unites States, parody is not a specifically recognized defence to infringement. In one well-known Canadian case, a court proscribed a union from reproducing a corporate mascot - Bibendum, the so-called "Michelan Man" - in a parody depicting the character about to stomp on unwary workers debating the merits of unionization. The United States, in contrast, has clearly identified parody as falling within the ambit of fair use. The precise degree of protection in the United States is unclear, with courts drawing a fuzzy line that separates parody (using a work in order to poke fun at or comment on the work itself), which is protected, and satire (using a work to poke fun or comment on something else), which, arguably, is not. However, though its precise limits are unclear, parody is afforded at least some protection in the USA.
  2. Reverse engineering
    American law permits infringements that occur in the context of reverse engineering products. However, in some areas the scope of this right is limited by the recent introduction of anti-circumvention laws, which make it illegal to circumvent anti-copying technology, even for otherwise legal purposes like reverse engineering.
  3. Canada does not have a line of cases defending the practice of reverse engineering. Accordingly, reverse engineering is an inherently risky practice in Canada. However, following the recent Supreme Court of Canada decision in the Law Society case interpreting the fair dealing defence, Canadian researchers may be somewhat satisfied that the practice of reverse engineering is defensible under fair dealing where for the purposes of private study or research. However, the lack of clarity in the law continues to concern researchers. Canada does not currently have anti-circumvention laws; however, Canada continues to explore the possibility of legislating such laws.
  4. Transformative use

    A transformative use is a use by which a work is used to create a new work possessing its own merits. That new work then enjoys its own copyright. However, the new work may infringe on the original. American law gives a range of factors that can be considered in evaluating this. For instance, if only a small portion of the original is used, if it is used for a purpose that does not compete with the original, and if the purpose is to benefit the public, it is less likely to infringe than if a considerable portion of the original is used to compete against the original in a commercial context. Canada does not take the same approach; permissible transformations, such as criticism and academic study, are specifically enumerated in the Copyright Act, while other acts are not permitted. Many dealings that are transformative in nature, such as works of appropriation art, do not clearly enjoy the benefit of the fair dealing defense.

  5. Time-shifting

    It may come as a surprise to most Canadians, but time-shifting - activities like taping a television program - are not technically legal in Canada. However, following the Sony decision in the United States, which declared this activity legal, it is unlikely that a Canadian court would reach a contrary decision, particularly considering how widespread the practice is. At the lease, an argument could be made that recordings for the purposes of time-shifting content for later private study or review are fair dealings. Nevertheless, time-shifting is not explicitly permitted under the Copyright Act.

  6. Media-shifting

    It is arguably legal in the United States to copy a work you already own into another medium for your own convenience, such as by taping a copy of a CD you own because your car only has a tape deck. This is not legal in Canada, with two exceptions. The first is found under s.32 of the Copyright Act, which permits the creation of a copy or sound recording of a literary, musical, artistic or dramatic work, other than a cinematographic work, in a format specially designed for persons with a perceptual disability, provided the work isn't commercially available in a similar suitable format. The second is a limited right found under the private copying right (s.80), which applies only to musical sound recordings, and permits them to be copied only for private use onto audio recording media; in some cases, doing so may involve media shifting.

    However, following CCH Canadian Ltd. v. Law Society of Upper Canada, it is questionable whether denying the Canadian public these rights is constitutional. Some commentators express doubt that the statutory grant of these rights to copyright holders under the Act is demonstrably justifiable in a free and democratic society, and thus would be struck down by a court as a violation of the freedom of expression rights found under section 2 (b) of the Constitution.

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This page last updated: September 9, 2008