Copyright is the right of an owner to prevent unauthorized copying or use by others. The copyright of a work is separate and distinct from the physical work itself. Because s5(1) of the Copyright Act provides that copyright subsists in every "original literary, dramatic, musical and artistic work," copyright protection applies to books, poetry, plays, software, motion pictures, songs, phonograph records, paintings, drawings, computer programs, sculptures and photographs. However, not every literary, dramatic, musical or artistic work is protected. A work must be "original" in the sense that it must not be a copy itself. Secondly, the work must be in fixed or written form capable of identification. Finally, for copyright to subsist in Canada the author must, at the date of creation, be a subject or citizen of Canada or a foreign country that either is a member of an international agreement of which Canada is also a member or has arrived at an international agreement with Canada.
The 1988 amendments extend copyright protection to a greater variety of works. Copyright now protects computer programs, tables, compilations and translations as literary works. Computer program protection is limited, as persons are authorized to reproduce programs for backup purposes or for the functional operation of the programs themselves (s27(2)(1) and (m)). In addition, copyright protection extends to any work of choreography, whether or not there is a story line.
The specific rights underlying copyright that arise automatically with the creation of an original work are enumerated in s3(1) of the Copyright Act. The most important rights include the right "to produce or reproduce the work or any substantial part thereof in any material form whatever,""to perform, or in the case of a lecture, to deliver, the work or any substantial part thereof in public,""to communicate the work to the public by telecommunication" and, "if the work is unpublished, to publish the work or any substantial part thereof." These rights continue, in most cases, for the life of the author and a period of 50 years after his or her death.
Section 13(1) of the Copyright Act provides that the author of the work is the first owner of the copyright. If a work is created by an employee in the course of employment, however, the employer is the first owner of the copyright. Owners can license or assign their rights in return for a lump-sum payment or a royalty.
Rights of Authors
Authors, including employees, as distinguished from copyright owners, are also given certain "moral rights" under the Act. Moral rights include the right to be associated with the work, where reasonable, the right not to be associated with the work, and the right to the integrity of the work. These rights cannot be assigned, but they may be waived. They are not automatically waived with an assignment of the copyright.
Rights of Performers
Performers also have a "performers' performance" right, since 1 January 1996, that gives the performer the sole right to fix or to reproduce his or her performance. For example, unauthorized video taping of a performance would infringe this right since this is a type of fixation.
Any person who, without the consent of the copyright owner, does anything that only the copyright owner has the right to do or who sells, rents, distributes, exhibits by way of trade in public or imports into Canada any work that infringes copyright or, for private profit, permits a theatre to be used for a public performance without the owner's consent, has broken the law of copyright. However, where the similarity of the work and the alleged copy arises from mere coincidence or from resort to the same source, copyright has not been infringed upon. Further, under s27(2)(a) of the Copyright Act, "fair dealing with any work for the purposes of private study, research, criticism, review or newspaper summary" does not constitute infringement.
The Copyright Act allows civil remedies for infringement which include injunctions, damages and accounting for profits. The Act also provides sanctions of imprisonment for up to 5 years or fines of up to $1 million for persons who knowingly infringe copyright.
To better control the unauthorized use of copyright works and facilitate the licensing thereof, the Copyright Act provides for the collective administration of various copyrights, including music performing rights. In 1989, a new Copyright Board was created and given jurisdiction to fix royalties payable by cable television operators and other retransmitters for their retransmission of copyright works contained in television signal. The royalties collected by such performing societies are then distributed to the individual copyright owners.
Particulars of a copyright work and its owner, as well as assignments and licences, may be registered at the Copyright and Industrial Design Office in the Department of Industry Canada, Hull, Qué.
International Copyright Agreements
Canada has signed 2 major international copyright agreements: the 1928 Rome revision of the Berne Convention and the 1952 Universal Copyright Convention. The Berne Convention provides for automatic reciprocal copyright protection in Canada and other member countries. The United States has been a member since March 1989. The Universal Copyright Convention, the only major international copyright agreement signed by the US, also provides for reciprocal copyright protection in Canada and member countries, but only upon compliance with certain formalities. The US and Canada also have a reciprocal arrangement.
Membership in the Berne Convention has an important bearing on the importation of foreign editions of Canadian books. Under the Copyright Act (s27(4)(d)), copyright in a work is infringed by a person who imports into Canada any work that infringes copyright. Indeed, under s44 of the Act, the copyright owner can appeal to customs officials to bar importation of such copies into Canada. However, s45 allows the importation of foreign editions of books by Canadian authors if those books have been printed in Great Britain or in a foreign country which adheres to the Berne Convention.
The Challenges of Technology
New technology constantly challenges the law of copyright. In the 1950s a Canadian court held that the distribution of film telecasts by CABLE TELEVISION to individual subscribers at home did not infringe of copyright in the film telecasts. This ultimately led to the 1988 amendments to the Act pertaining to retransmission rights. Unauthorized sound recording and audio-video recording are infringements of copyright in these situations for the copyright owners to detect infringement and enforce their rights. With the advent of CD-ROM technology, compilations of thousands of works can be contained on a single disk, making it easier to infringe copyright and more difficult to detect and prevent infringement. Similarly, the advent of the Internet has created unprecedented opportunities for the unauthorized reproduction of copyright works (see INTERNET, LAW AND THE).
Substantial amendments to the Copyright Act, the so-called Phase II amendments, were introduced as Bill C-32 in 1996. Most, though not all, of these amendments have come into effect. Changes include specific exemptions from infringement for libraries, archives, educational institutions, museums and persons with perceptual disabilities; royalties for producers and performers of sound recordings; and a levy on blank tapes (to address private copying), the proceeds of which will be paid to the composers, lyricists, performers and producers of sound recordings.
Author BRIAN A. CRANE
A.G. Blomquist and Chin Lim, Copyright, Competition and Canadian Culture (1981); P. Burn, Guide to Patent, Trademark, Copyright Law in Canada (1977); J. Palmer and R. Reesendes, Copyright and the Computer (1982) David Vaver, Copyright Law (2000); David Vaver, Intellectual Property Law, 2d ed. (2011).
Links to Other Sites
Copyright Board of Canada
The website for the Copyright Board of Canada. Offers online access to Canada's Copyright Act and the latest news about copyright issues.
Department of Justice Canada
Answers to your questions about Canada's justice system may be as close as the online "Resource Centre" at this Department of Justice Canada website. Features authoritative information about Canadian law, the judicial process and the federal administration of justice.
Intellectual Property Office
The website for the Canadian Intellectual Property Office. Responsible for the administration and processing of the greater part of intellectual property in Canada, including patents, trade-marks, copyrights, industrial designs, and integrated circuit topographies.
Arvic Search Services
A private company specializing in Trade Marks and Title Registries. Features online articles about related issues for small business owners.
Official web site of Cancopy, loads of info on copyright in Canada.
Supreme Court of Canada
The extensive website for the Supreme Court of Canada provides access to the Court's online library catalogue, biographies of Supreme Court Judges, an overview of Canada’s judicial system and related information.
McGill Law Journal
This site offers article abstracts about a wide range of legal issues. From the McGill University Faculty of Law.
A very extensive collection of resources that deal with federal and provincial legal issues, agencies, education and services. Covers both civil and criminal law.
You and the law - Community Legal Information on the Web
An extensive listing of websites providing general legal information that may be of interest to Canadians. From University of Toronto’s Bora Laskin Law Library.
Access Copyright, The Canadian Copyright Licensing Agency, is a not-for-profit agency established in 1988 by Canadian publishers and creators to license public access to copyright works. The agency now represents a vast international repertoire along with more than 8,000 Canadian creators and publishers.
Canadian IT Law Association
The Canadian IT Law Association provides a national forum for Canadian practitioners to discuss the uniquely Canadian aspects of IT law and related fields of e-commerce and intellectual property.
The Canadian Internet Policy and Public Interest Clinic
The website for CIPPIC, an organization that focuses on issues concerning the intersection of law and technology. From the Faculty of Law, University of Ottawa.
The website for Dr. Michael Geist, the Canada Research Chair of Internet and E-commerce Law at the University of Ottawa. Features numerous articles and other resources pertaining to technology law issues. Check out his film "Why Copyright?"
Canadian Lawyer Magazine
The website for "Canadian Lawyer Magazine."
Canadian Musical Reproduction Rights Agency Ltd.
The Canadian Musical Reproduction Rights Agency Ltd. (CMRRA) is a non-profit music licensing agency, which represents the vast majority of music copyright owners (usually called music publishers) doing business in Canada.
The Legaltree.ca website offers legal research resources as well as legal literature contributed by lawyers in the Canadian legal community.
Duhaime.org is a very extensive source for Canadian legal information, history, and related resources.
Geist: An unofficial user’s guide to the coming copyright bill
A news story about implications of proposed copyright legislation. From thestar.com.