Canadian copyright law is the area of law that defines copyright within Canada. As copyright is said to exist only in statute, most rights are derived from the Copyright Act. All powers to legislate copyright law are in the jurisdiction of the federal government by virtue of section 91(23) of the Constitution Act 1867.
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Like most other common law countries there are no inherent rights to works, performances, or sound recording at the common law. Copyright exists solely in statute. According to section 91(23) of the Constitution Act, 1867 the federal government is granted exclusive power to enact laws related to copyright. The evolution of copyright in Canada has been guided by international treaties signed by Canada that try to unify copyright laws across the globe.
Canada is a party to the Berne Convention for the Protection of Literary and Artistic Works of 1886 and has signed but not yet ratified both the WIPO Copyright Treaty of 1996 and the WIPO Performances and Phonograms Treaty of 1996
Copyright is meant to protect the expression of ideas but never ideas in themselves. Copyright subsists in original literary, dramatic, musical, and artistic work, whether published or unpublished.
The Act provides protection for all "original literary, dramatic, musical and artistic" works. Close attention has been paid to the use of the word "original". It has been well established that the foremost requirement for the subsistence of copyright is that the work be original.
The CCH Canadian case re-evaluated the meaning of "original" and found that for a work to be original it must be the result of the exercise of "skill and judgment". More specifically: skill, meaning the "use of one's knowledge, developed aptitude or practiced ability in producing work", and judgment, meaning the "use of one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work". Nevertheless, originality does not require any novelty or creativity. It does require intellectual effort beyond mere mechanical exercise.
The determination of originality on the basis presented in CCH Canadian depends on the facts. For a large part, it depends on degree to which the work originated from the author. Many factors are considered, The medium or form used is significant. Whether it comprises elements that are in the public domain or not, whether it the ordering of data or facts, or whether the form is pedestrian or novel. Mere selection is generally not enough. As well, it is significant to consider whether there are any artistic elements to it.
Copyright provides the protection of expression of ideas. This entails that there must be a form, or "fixation", to the expression. It is fixation that distinguishes an expression from an idea.
In Canadian Admiral Corp. v. Rediffusion, the court considered fixation: "for copyright to exists in a 'work' it must be expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance." In this case, the court found that there was insufficient fixation in the live broadcast of a sports event. Any sort of broadcast, telecast, or display of a spectacle on its own is not sufficient to be fixed. At the least, it must be simultaneously recorded in some fashion to be fixed.
To the possible exception of choreographed works, there is a requirement that the work be recorded in a relatively permanent form. Typing a note into a computer screen may be sufficiently permanent. Some cases have shown that unstructured speech or other spontaneous or improvised creations, such as a sports game, cannot contain copyright.
Both facts and ideas are by their very nature uncopyrightable. This will often create difficulties when it becomes necessary to separate the idea from the expression as well as in the separation of fact from the arranging and use of those facts. Where the distinction between idea and expression becomes obscured the Courts often take a precautionary view that it cannot be copyrighted so as to avoid preventing others from expressing the same idea.
Minor designs that are largely ornamental or functional are excluded as well. For example, coloured blocks used as tools in an educational program are excluded.
The copyright of an artist's work is owned directly by the artist in most cases with the exception of engravings, photographs, portraits, and works created in the course of employment. Furthermore, these rights can be alienated through assignment and licenses.
An artist's moral rights, however, are inalienable and stay with the artist their entire lives. As with copyrights, moral rights are inheritable.
Section 12 of the Copyright Act reserves copyright for all works produced by the government for a period of 50 years following the end of the calendar year when the work has been performed, unlike the United States, where the government does not hold copyright. In addition, the Copyright Act applies to government works, but "without prejudice to any rights or privileges of the Crown". The exact extent of these reserved rights are not clear, see[1] for more on this.
The music industry created a loophole in Canadian copyright laws when it asked for a levy on blank audio media. Since 1999, these private copying levies on blank audio recording media (such as audio cassettes, CDs and CD-Rs) have raised millions of dollars for songwriters, recording artists, music publishers and record companies. In exchange, and subject to certain exceptions, the act of copying music onto an audio recording medium for the private use of the person who makes the copy does not constitute copyright infringement.[2] Also, the statutory private copying provision is also silent as to whether the person doing the private copying must also be the owner of the music being copied.
Some argue that the private copying levy legalized copying in the digital age, to the consternation of the music industry.[3] However, Canadian courts have not extended the definition of "audio recording medium" to exempt music copied onto computer hard drives, digital audio recorders (such as iPods or MP3 players), or other types of permanently embedded memory.[4]
Section 5 of the Copyright Act applies the act to all for British subjects and residents, as well as citizens, residents, and corporations of Berne convention countries.
According to s. 6 of the Act the copyright of a work lasts the life of the author plus 50 years from the end of the calendar year of death.[1]
For joint authors, the copyright of a work lasts the life of the author who dies last, plus 50 years from the end of the calendar year of that death.[2]
According to s. 9(2), the duration of foreign works generally follow the Rule of the shorter term except in the case of NAFTA countries (i.e. USA and Mexico). Works from NAFTA countries follow the Canadian duration rule.
Where the identity of the author is unknown (if the author is anonymous or pseudonymous) then the copyright lasts for either 50 years from the publication of the work or 75 years from the making of the work, whichever is shorter.[3] However, if author’s identity becomes commonly known during this time, the term provided in section 6 applies. There are separate provisions for joint authors whose identities are unknown[4], and posthumous works.[5]
There is a separate provision for the author of photographs. According to s. 10[6] of the Act, the author of the photograph is the person or corporation who was either 1) the owner of the initial negative or other plate at the time when that negative or other plate was made, or 2) was the owner of the initial photograph at the time when that photograph was made, where there was no negative or other plate. In contemporary terms, this means that the author of a photograph is usually the person who owns the film in the film camera, or whoever owns the digital camera.
Where the author is a person or a corporation whose majority shareholder is the photographer, s. 6 applies, and the term of copyright for the photograph is the life of the author plus 50 years from end of the calendar year of death.
Where the author is a corporation, the term of copyright for the photograph is the making of the initial negative or initial photograph, plus 50 years.
There is also separate provision for the copyright ownership of photographs. In particular, unless a contract exists to the contrary, the copyright of any engraving, photograph or portrait is owned by the person who ordered the work once payment is made. The copyright is owned by the author until payment is made. This only applies to works that were "made for valuable consideration". See s. 13(2)[7] of the Act.
Copyright grants the sole and exclusive right to create and recreate a work whether wholly or substantially. It also includes the sole rights to:
and to authorize any such acts.[5]
Copyright, generally, protects against production and reproduction of a work. Infringement is judged by the interpretation of the language of the type of work and the means of reproduction.
Moral rights protect the "integrity" of the work, and the right to be "associated" with the work. Infringement of moral rights happens when the work is "distorted, mutilated or otherwise modified ... to the prejudice of the artist".
In defense to infringement, there are rights to fair dealing, which in Canada are limited to research or private study, criticism or review, or news reporting.
Introduced by David Emerson and Liza Frulla in 2005. It died on the order paper due to the November 28, 2005 motion of no confidence.
In 2008, Bill C-61 was proposed by Industry Minister Jim Prentice to improve compliance with WIPO treaties. It was heavily criticized and praised by conflicting sides, of being too harsh and setting up "police states", to being needed copyright reform.[6] The bill died on the table due to the September 7, 2008 election call.[7]
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| | Canadian Intellectual Property Office - Copyright - Canadian Intellectual Property Office - Copyrights |
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