Canadian Copyright Law

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Contents

Brief History

Canadian copyright is a combination of British laws, proximity to the United States, and some French traditions. The basic origin of copyright law can be traced back to the Statute of Anne, passed in 1710. This statute limited the term of copyright to 14 years and allowed for the renewal of 14 years if the author were still alive. While it is true that modern copyright law is much more complex, the basic principle remains the same: the author has control to exploit his work. At the time of this statute, many authors believed that copyright should be perpetual. The famous case in 1774, Donaldson v Beckett, ruled that the Statute of Anne did not support the common law rule of perpetual copyright and that copyright law was to only be established by statute, not by common law.

The United States used the Statute of Anne as a model for their copyright law, but adapted it in such a way that it would meet the cultural developments of the day. United States copyright law, during the 1800's, helped to greatly influence Canadian legislation. One notable aspect of the Copyright Act of 1790 was that it did not grant protection to any foreign works. For this reason, several British composers' works were circulated in America at very low prices during the 1800's. Canadian law is mainly based on British law; United States copyright law played a major part in Canadian debates during this early period.

The British North America Act of 1867 named copyright as a topic of Canadian jurisdiction. However, the Imperial Copyright Act of 1842 remained in force until 1911. Canada, however, did not pass its own copyright act until 1924. The Canadian Copyright Act of 1924 has been amended ten times between 1931 and 1997. The most important amendments, the 1988 and 1997, are today known as Phase I and Phase II of copyright reform.

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Works That Are Protected

The original intention of copyright law was to protect printed material, but protection has extended to other media, such as computer programs. The Copyright Act of Canada states that “every original literary, dramatic, musical, and artistic work” is protected. It goes on to say 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 or form of its expression.” According to the Act, there are four main categories of protected works: literary, dramatic, musical, and artistic. If any work falls into one of the main categories, the work is protected. Please note that the work may still be protected if it does not fall under one of these categories.

Literary works

The copyright act includes tables, compilations, translations, and computer programs as literary works. This is not, however, the full scope of what is protected. The term literary, as it relates to the law, does not imply that a given work must be written. The important literary works, as defined by the Copyright Act, are the following:

  • Books: The term book has several different meanings under the Copyright Act of Canada. It defines a book to be “every volume, part of division of a volume, pamphlet, sheet of letterpress, sheet of music, map, chart, or plan.” Even though most people think of a book as a literary work, this is not true under copyright law.
  • Editions: The way a work is typographically arranged is not protected by the Copyright Act of Canada. In other words, if one were to copy an edition of Hamlet, or any book no longer protected by copyright law, it would not be illegal. Certain elements of the edition may be protected however. For example, the table of contents, the foreword, marginal notes, etc.
  • Translations: Translations are currently protected by Canadian copyright law. Courts decided that there is a great deal of artistic interpretation involved in translating elements of a novel. Therefore, a translation does meet the threshold of originality.

Dramatic Works

A dramatic work, defined by the Copyright Act of Canada, is "any piece for recitation, choreographic works or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise, and any cinematographic production where the arrangement or acting form or the combination of incidents represented give the work an original character." In other words, a dramatic work is anything that represents a dramatic element. The most common protection is a script, which is a fixed sketch for any media. The script can be for, but not limited to, plays, radio programs, television programs, films, operas, and musicals. There are a few important things, in Canada, which cannot be protected under copyright law:

Performance: Performances in themselves do not merit copyright protection in Canada. The Copyright Act of Canada allows for the recording and distribution of any public performance.
Radio programs: The criterion for the definition of "fixed" is not met with regards to radio programs or impromptu talk shows. If it were recorded, however, the recording would merit copyright protection.

Musical Works

A musical work, as defined by the Copyright Act of Canada, is "any combination of melody and harmony, or either of them, printed, reduced to writing or otherwise graphically produced or reproduced." This definition is different from the others in that it is very specific in what it protects. For any musical work to be protected in Canada, it must meet one of the following requirements: printed on paper, reduced to writing, graphically produced or reproduced. In other words, if a piece of music were simply recorded, it would not be protected by Canadian law because it is not "fixed" according to the definition. It may, however, be protected as a sound recording.

Sound Recordings

Sound recordings are not a subcategory of musical works, but rather as a mechanical contrivance. The Copyright Act protects "any record, perforated roll, or other contrivances by means of which sound may be mechanically reproduced." Anything that is recorded may be protected under Canadian law.

Artistic Works

An artistic work, as defined by the Copyright Act of Canada, is any work that is presented in a visual medium. These include paintings, drawings, engravings, photographs, sculptures, architecture, maps, charts, and industrial designs.

Duration of Copyright

Published Works

According to the Copyright Act of Canada, the term of copyright for published works is the year of the author’s death plus 50 years. The term of copyright is always determined by the life of the creator, not the life of the copyright owner. This is important to understand for works that have been transferred or works made for hire. In Canadian copyright law, the date the work was published is irrelevant to the length of protection.

Unpublished Works

An unpublished work is a work that was neither formally published, distributed, nor performed. Unpublished works have a perpetual copyright unless the work is published or performed in public. The rational behind perpetual copyright for unpublished works is to protect the privacy of the deceased. In many cases, authors do not want their private letters falling into the public domain. This is very inconvenient for musicologists who would like to reproduce the work but cannot due to such copyright restrictions.

Types of Works

Collective Work

A collective work is a work, such as an anthology, where several works are compiled into one volume. Two separate copyrights exist for a collective work: the work as a whole and each individual article in the work. Each is protected for the life of the author plus 50 years until the end of calendar year. Canadian copyright has a very low threshold of originality, so very often the work as a whole is protected, even if each individual work is in the public domain.

Posthumous Work

A posthumously published work is a work published after the death of a given author. When a work is published posthumously, the copyright protection begins from either the date of first publication, first performance, or first delivery in public.

Unknown Authors

When a given work is unpublished, it does not matter who the author is because copyright begins on the first day of publication. Although there are no provisions for unknown authors in the copyright act, it is generally accepted that copyright endures for 50 years from the date when the copyright came into existence. This comes from famous case in 1940, Massie & Renwick, Limited v. Underwriters' Survey Bureau Ltd.

Useful Chart

Known author Life + 50 years
Unknown author Whichever is shorter
1. Year of first publication plus 50 years until the end of the calendar year
2. Year of creation plus 75 years.
Known joint authors Last surviving author + 50 years until the end of the calendar year
Unknown joint authors Whichever is shorter
1. Year of first publication plus 50 years until the end of the calendar year
2. Year of creation plus 75 years.
Photographs (All Cases) Life + 50 years
Works owned by crown Remainder of year of making + 50 years
Performance First performance + 50 years whether "fixed" or "unfixed
Broadcast First broadcast + 50 years
Published after authors death (before 1999) End of calendar year from first publication + 50 years
Unpublished work of author who died before 1949 Public domain as of 2003
Unpublished work of author who died between 1949 and 1999 Protected until December 31st, 2049
Unpublished work of author who died after 1998 Death of author + 50 years

Before 1999, the length unpublished works were protected by copyright was perpetual. When the work was published, the copyright term would last 50 years from that point. This posed as a serious problem for unpublished manuscripts and works in progress. The 1997 amendments to the Canadian Copyright Act improved this; however, the amendments are very complex. In addition, they created an unusual waiting period for archival materials whose authors died between 1949 and 1948. In such a case, the author's published works enter the public domain before the unpublished works. The last four entries in the chart above serve to explain the expiration of copyright for the three categories of unpublished works.

Scope of Copyright

Threshold of Originality

According to the Copyright Act of Canada, a given work must be original in order to gain protection. For several years, the threshold was established by Canadian Admiral Ltd. v. Rediffusion Inc

For a work to be original it must originate from the author; it must be the product of his labour and skill and it must be the expression of his thoughts

It was said in the case, Tele-Direct, Inc. v. American Business Information, Inc. that "for a compilation to be original, it must be a work that was independently created by the author and which displays at least a minimal degree of skill, judgment and labor in its overall selection or arrangement. The threshold is low, but it does exist." This was later clarified in the 2004 Supreme Court case, CCH Canadian Ltd. v. Law Society of Upper Canada that it must not be a copy of another work; it must be "novel or unique.” In other words, a minimal level of creativity is required for a work to be original.

Formalities

Under Canadian Copyright Law, formalities are not required for a work to be protected. A work is protected as soon as it is fixed in a tangible form. In addition, a copyright notice is not required. However, Canada still suggests including a copyright notice so the work is protected in countries that are only part of the Universal Copyright Convention (UCC).

Exclusive Rights

Economic Rights

Economic rights are defined by the Canadian Copyright Act as the "sole and exclusive rights of the copyright owner." In other words, only the copyright owner has the right to exercise any one of these rights. Every right is different and independent from any other right. For example, the right to perform a given work is different than the right to translate a work. The following subsections will serve to explain the six rights set out in the Act.

Right of Reproduction

The right of reproduction is an exclusive right of the owner to "produce or reproduce the work or any substantial part thereof in any material form whatever." In other words, a copyright owner may produce a work by creating it, and make subsequent reproductions of that work in whatever form he or she wishes. Since it can be in whatever form he or she wishes, it does not matter if the work is photocopied, typed, or hand-written - it is still protected under copyright law. The term substantial part is not defined in the copyright act, but some court cases have considered its meaning. Courts will generally consider two things when determining whether a certain use of a copyrighted work constitutes a substantial part of that work: the quantity of that work, and the quality of the section used as determined by both the copyright holder and the court.

Right of Publication

When a work is published, it must follow the term of protection set out by the Copyright Act. The copyright holder of a given work has the exclusive right to publish a given unpublished work, but once the author has that work published, he or she has no rights to subsequent sales. Although the right to publish a work is not explicitly defined in the Act, the Act does state that publication "... In relation to any work, means the issue of copies of the work to the public.” In other words, for a work to be published, it must be available to the public. There are several things set out specifically in the Act that do not constitute publication:

  1. The performance in public of any dramatic work (e.g. an unpublished play)
  2. The performance in public of a musical work (publication would only occur once it is fixed, for example a sound recording)
  3. Any lecture delivered in public
  4. Exhibition of an artistic work

Right of Adaptation

The Act defines adaptation as a "modification of a work suitable for a new use or purpose.” A copyright holder has the right to adapt or to authorize the adaptation of the given work. For example, an author may convert or authorize another person to convert a film into a book or vise versa.

Right of Translation

The copyright holder of a given work has the exclusive right to translate that work into another language. He or she also has the explicit and exclusive right to permit somebody else to translate the given work. For example, an author may translate his or her book into English from Spanish.

Right of Telecommunication

The author of a given work has the exclusive right to authorize the use of that work on television or radio. According to the Act, telecommunications mean "to communicate the work to the public by telecommunication,” which means that any form of telecommunication requires the permission of the copyright holder. The act also defines the term telecommunication as "any transmittance of signs, signals, writing, images, or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system.”

Right to Public Performance

The public performing rights, as set out in the Canadian Copyright Act give the copyright holder the exclusive right to exhibit a work in public. The term "public" is not defined in the Act, but has been discussed numerous times in court decisions. The consensus is that when the audience is domestic, the performance is not considered public. Like the right to reproduce, one does not need to perform the entire work in public; rather, the performer needs only to perform a substantial part of it. Whether or not a fee is charged, any person wishing to present any substantial portion of a work must have permission from the copyright owner.

Moral Rights

Moral rights are rights that protect the reputation of the protected author. The author always maintains these rights, even after he has transferred the copyright of the work. Moral rights are generally divided into the following categories:

  • Right of paternity
  • Right of integrity
  • Right of association

Right of Paternity

According to the Canadian Copyright Act, an author has 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 question of "reasonableness" is, however, usually a matter for the courts to decide. Whenever an author has economic rights to a given work, the person also has the right to remain anonymous. According to the section of paternity, an author has the following three basic rights:

  1. Right to claim authorship - The author of a given work has the right to have his or her name associated with that work. For example, a composer is permitted to have his name on the work.
  2. Right to remain anonymous - The author of a given work has the right to remain anonymous. Therefore, a work could be exhibited without any name being associated with it.
  3. Right to use a pseudonym - The author of a given work has the right to use a pseudonym or pen name. In other words, an author may use a made up name in place of his or her own name.

Right of Integrity

According to the Canadian Copyright Act, an author's right to the integrity of a work is violated if the work is to the prejudice of the honor or reputation of the author, distorted, mutilated, or otherwise modified. One well-known court cause regarding moral rights is Snow v. The Eaton Centre Ltd. In this case, Michael Snow sculpted "flight stop,” made from 60 geese hanging in the Toronto Eaton Center. The geese had ribbons tied around their neck as a Christmas decoration, but the artist did not consent to the Christmas decorations. The court ruled that the attachment of the ribbons to the sculpture was prejudicial to the artist's honor and ordered that the ribbons were removed.

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Right of association

The right of association, as set out in the Canadian Copyright Act, is the right to prevent anyone else from using his or her work "in association with a product, service, cause or institution." This right is related to the right of integrity in that it is subject to the "distortion, mutilation, or other modification being prejudicial to the honor or reputation of the author.” An example of the right of association might be a cello performance sponsored by a tobacco company when the musician is a non-smoking advocate.

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Limitations on Rights

There are certain provisions in the Canadian Copyright Act that allow a person to use all or part of a work that is protected by copyright without permission from the copyright holder. The limitations of a copyright holder can be expressed by the following two categories:

  • Exceptions - when people can use all of part of a work without permission or paying royalties
  • Compulsory licenses - when people can use all or part of a work without asking permission from the copyright holder, but must pay royalties and follow certain conditions set out in a contract.

Fair Dealing

Fair dealing is specifically mentioned in the Canadian Copyright Act, and it says that the following activities are not a violation of copyright: "Any fair dealing with any work for the purposes or private study, research, criticism, review or newspaper summery". The Canadian provision for fair dealing is different from the American provision for fair use because the American provision allows many more uses of copyright material than does the Canadian provision for fair dealing.

Provisions for fair dealing were included in the Copyright Act of 1921. At the time, this provision was included as a defense for potential copyright infringers who wrote by hand sections of copyrighted text for the use of private study. Computers and scanners were not envisioned during the time, but the Act has come to incorporate the rise of new technology. As such, any replication of copyright material by the use of technology, such as a computer or photocopier, may be considered fair dealing.

Fair dealing is not defined in the Act, and the wording of the provision has been subject to many court rulings. Despite many court rulings dealing with the concept of fair dealing, none have established a clear definition of what constitutes fair dealing. Therefore, there is a lot of confusion about what is in fact fair dealing and what is not. Although there is no clear definition of what constitutes fair dealing, there are a number of guidelines.

  • Substance - one of the most important questions in deciding whether something constitutes as fair dealing is whether a substantial portion of the copyright material is used. If a substantial portion of the copyright text is not used, the copyright holder cannot press charges in most cases. "Substantial use" is not defined in the Act, and it therefore depends on the nature of the reproduction and the relative quantity used. One court case expressed the following opinion: you must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair?" The case went on to say, "To take long extracts and attach short comments may be unfair. However, short extract and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression.
  • The use of the copyrighted portion must be for the use of on the five purposes specifically mention in the Act: private study, research, criticism, review, or newspaper summary. Although they are not specifically defined, they seem to be interpreted narrowly by most court decisions. For example, private study does not extend to classroom study. Another example is that criticism may only extend to quotes and short extracts from a work to illustrate a criticism. According to one court case, "a critic cannot, without being guilty of infringement, reproduce in full, without the author's permission, the work which he criticizes."

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Exceptions

  1. Computer Programs - There is a provision in the Canadian Copyright Act that allows the owner of a legal copy of a computer program to create a single reproduction of that program. This, however, only applies to the original owner of the program, not to someone who is borrowing the program. The owner of a legal copy of a computer program may also make a modified version of that program. The term modification in this sense means "concerting the computer program or translating it into another computer language.” This modification must be essential for the compatibility of the program with a particular computer, it must be for the owner’s personal use, and the copy must be destroyed when the person does not own the program anymore.
  2. Casts of Artistic Works - Any artist may reuse any "mold, cast, sketch, plan, model, or study" as long as the author does not thereby "repeat or imitate the main design of that work"
  3. Works Permanently in a Public Place - A work that is permanently displayed in a public place may be reproduced without the permission of the copyright owner. For example, a painting or drawing may be made from a work that is permanently attached to a building. This provision also extends to architectural works of art. A person may publish and reproduce paintings or architectural works so long as they are not reproductions of the original blueprint or design for that building.

Compulsory Licenses

There is a provision for compulsory licenses that forces a copyright owner to allow others to use his or her work at a specified royalty rate. Under this condition, the copyright owner has no control over his or her own work. Generally speaking, compulsory licenses are for specific uses of copyrighted works and are also subject to certain conditions.

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