Copyright Law

Copyright law is included in what is commonly known as the law of intellectual and industrial property. This branch of law also includes PATENTS, TRADEMARKS and the law of industrial designs.

Copyright Law

Copyright law is included in what is commonly known as the law of intellectual and industrial property. This branch of law also includes PATENTS, TRADEMARKS and the law of industrial designs. In Canada, the CONSTITUTION ACT of 1867 gives exclusive jurisdiction over copyright law to the federal government. The current Copyright Act was enacted by Parliament in 1921 and amended significantly in 1988 and 1997.

Copyright

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.

Original Works

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.

Civil Remedies

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 (seeINTERNET, 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.


Further Reading

  • 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).

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