Copyright is everywhere.
And by everywhere, I mean that literally.
Look around you – this blog post you are about to read, the book on your table, the music playing in your car, your Ipod or phone, your favorite show on Netflix, the Nintendo video games your children play, the news broadcast on TV – these all contain copyright. In our daily lives, we all have either produced or used copyrightable materials at some point or the other.
What is copyright?
According to the World Intellectual Property Organisation (WIPO),
“copyright (or author’s right is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps and technical drawings.”
Broadly speaking, works subject to copyright protection include:
- literary works such as novels, poems, plays, reference works, newspaper articles;
- computer programs, databases;
- films, musical compositions, and choreography;
- artistic works such as paintings, drawings, photographs, and sculpture;
- architecture; and
- advertisements, maps, and technical drawings.
The Canadian Copyright Act, RSC 1985, c C-42, as amended regulates copyrighted works in Canada. In 2012, Bill C-11, titled the Copyright Modernization Act (“CMA“), was passed and received Royal Assent. The CMA incorporated the provisions of the WIPO Copyright Treaty (WCT) and the WIPO Performance and Phonograms Treaty (WPPT) into Canadian copyright law, thereby responding effectively to the recent challenges facing the copyright industry as a result of recent technological advancements.
The Canadian Copyright Act
The Copyright Act defines a copyrighted work as every original literary, dramatic, musical and artistic work which is made by a person ordinarily resident in a treaty country, or in the case of a corporation, where its headquarters is in a treaty country, or in the case of a published work, the first publication of the work occurred in a treaty country. Treaty country means a Berne Convention country, Universal Copyright Convention country, WCT country or WTO Member
In plain English, any work that falls within the Copyright Act‘s definition of a literary, dramatic, musical and artistic work enjoys copyright protection in Canada. The Copyright Act interpreted these categories of works quite broadly – for instance, tables, computer programs and compilations of literary works are deemed to be literary work under the Act. Sound recordings, broadcast signals and performer’s performances are also recognized and protected under the Act.
When an original work is created, copyright arises automatically. There is no need for registration or other formalities.
The word ‘original’ has come under a lot of scrutiny as it is a well-established fact that the foremost requirement for the subsistence of copyright is that the work be original. The appropriate standard of originality to be adopted by the courts was stated in the recent case of CCH Canadian Ltd v. Law Society of Upper Canada 2004 SCC 13, [2004] 1 SCR 339 (“CCH“), where the Supreme Court held that,
“for a work to be “original” within the meaning of the Copyright ACt, it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment.By skill, i mean the use of one’s knowledge, developed aptitude or practised ability in producing the work. By judgement, i mean 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…..” [emphasis mine]
Copyright also protects the expression of ideas. This requires a form or fixation of the expression. Copyright does not protect an idea. The idea must be fixated in a form that expresses it in a relatively permanent form.
What rights are granted to a copyright owner under the Copyright Act?
Economic Rights
A copyright owner enjoys the exclusive right to
- publish a work and perform it in public
- convert a dramatic work into a novel or non-dramatic work and vice versa
- produce, reproduce, perform or publish translations of a work
- make a sound recording, cinematograph film or other contrivance by means of which a work may be mechanically reproduced or performed e.g compact disks (CDs) or DVDs
- reproduce, adapt and publicly present a literary, dramatic, musical or artistic work as a cinematographic work
- present at a public exhibition, for a purpose other than sale or hire, an artistic work other than an map, chart or plan
- communicate a work to the public by telecommunication
- for computer programs, rental of the computer program
- for musical works, rental of the sound recording in which the work is embodied.
Moral Rights
The relevant provisions of the Copyright Act which grants an author moral rights can be found in section 14.1, 14.2, 17.1 and 17.2 of the Copyright Act.
Section 14.1 of the Copyright Act provides for the moral rights of a copyright owner. It grants an author the right to the integrity of the work and, in connection with an act mentioned in section 3, 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.
Moral rights are essentially derived from the reflection of the author’s personality in his or her work. An author of a work owns moral rights for the entire duration of the copyright [section 14.2(1)]; it is not assignable or transferable, even when copyright is assigned or licensed to a third party. [section 14.1(2); (3)]
It can, however, be waived in whole or in part by agreement of the parties.
Section 17.1 and 17.2 of the Copyright Act deals with moral rights in relation to live aural performances and sound recordings. It grants an author basically the same protection as contained in section 14.1 and 14.2.
How can copyright be infringed?
The Copyright Act sets out the instances in which a copyright can be infringed by an unauthorized third party. Generally, copyright is infringed when any person does, without the consent of the copyright owner, anything that the Act gives a copyright owner the sole right to do. Copyright infringement is a big deal especially when it involves the infringer deriving economic benefits from the infringement.
The infringement provisions in the Copyright Act are set out in Part III of the Act. As stated above, these provisions were modified by the CMA in 2012 to put in place tighter regulations guiding the use of copyright in the face of technological advancement. In my previous blog post, I reviewed the recent Federal Court decision in the Nintendo of America Inc. and King et. al.2017 FC 246 [Nintendo] where the court relied on the provisions of the CMA in issuing a massive damage award in its first major anti-circumvention copyright ruling.
It is becoming very important to have a basic understanding of the copyright regime in Canada so that, as copyright users, we do not find ourselves guilty of infringing copyrightable materials and, as copyright owners, we are able to identify infringements when they occur and pursue the enforcement of our rights under the Canadian Copyright Act.
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