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.
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.
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:
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:
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 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.
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.
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.
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.
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.
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.
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.
|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.
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
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.
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).
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.
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.
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:
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.
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.
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.”
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 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:
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:
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.
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.
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:
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.
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.