What Is A Copyright?
Copyright subsists in Canada immediately upon creation, and without registration, in every original literary, dramatic, musical, and artistic work, including computer programs, databases, and other compilations, books, brochures, advertisements, logos, charts, maps, plans, audiovisual works, including websites and digital products and services and films. Sound recordings, performers’ rights in their performances, and broadcast signals also receive a level of copyright protection under the Copyright Act.
A copyright owner has the exclusive right to control the work's (a) reproduction, in whole or substantial part, in any material form (including electronic or digital forms), (b) public performance, (c) public telecommunication, (d) publication, (e) translation, and (f) adaptation. The owner may also prohibit the distribution of unlawful copies.
The Copyright Act also provides an author with moral rights, which enable the author to demand credit as creator of the work and to prohibit changes to the work, or its use with any product or service, that would detrimentally affect the author's reputation.
How Long Does It Last?
In Canada, as a general rule, copyright expires 50 years after the year in which the last author dies. There are some exceptions, for example, copyright in sound recordings expires 50 years after the year in which those works were created. Moral rights exist for the same period of time as the copyright.
Who Owns The Copyright?
The author is generally the first owner of the copyright, but exceptions do exist. Most notably, copyright in works created by employees, in the course of their employment, are owned by the employer.
Assignments and Licensing
Copyright can be assigned or licensed, in whole or in part, and may be divided by geographic territory, market sector and media. Licenses may be oral, but assignments and exclusive licenses must be in writing and signed by the assignor to be valid. Assignments and license agreements may be registered in the Copyright Office. Moral rights cannot be assigned, but may be waived by the author.
Why Register a Copyright?
Although not mandatory, registering a copyright in Canada does provide advantages. The certificate is deemed presumptive evidence that the registered owner owns the copyright and that the work is protected under the Copyright Act. Furthermore, a registration gives public notice of an owner's rights and may prevent an innocent infringement defence by unauthorized users of the work. For these reasons, registration certificates are beneficial in litigation proceedings and in warranting ownership of the copyright to prospective licensees of a work.
Regardless of whether copyright is registered, a notice containing the following elements should be placed on all published copies of a work to give public notice of the rights:
“Copyright (or ©) [year of first publication] [owner's name]. All Rights Reserved.”
Infringement and Remedies
Infringement occurs whenever a person exercises any of the copyright owner's exclusive rights without consent. Distributors, who did not copy the work, but who knowingly sold or imported infringing copies, can also be liable.
Infringement actions are generally brought in the Federal Court of Canada, although there is concurrent jurisdiction with provincial courts in appropriate circumstances. Remedies include damages, profits, delivery up of infringing copies, and injunctions.
Defences to infringement include challenging the plaintiff's ownership, alleging that only an insubstantial amount of the work was taken, or pleading that the use constituted a "fair dealing" under the Copyright Act. The "fair dealing" exemptions permit reasonable copying of a work for limited non-commercial purposes, such as private study and criticism.
It is also a criminal offence, in some circumstances, to knowingly infringe a copyright, punishable by prison terms ranging up to five years and/or fines of up to $1,000,000.
International Protection for Copyright
Canada is a member of the Berne Convention on Copyright, the Universal Copyright Convention, and the World Trade Organization (WTO) Agreement. Generally speaking, these treaties protect copyright internationally in works created by Canadians or nationals of other member countries, and/or those first published in Canada or any other member country.
Copyright vs. Industrial Design Protection
Where an artistic design is applied to a useful article which is produced in quantities of 50 or more, the copyright becomes unenforceable. The only enforceable protection available in this situation is an industrial design registration. A "useful article" is defined by the Copyright Act as one which has a function other than merely serving as a carrier for the artistic or literary material. For example, a decorative spoon, which functions as a piece of cutlery, would be a "useful article" and reproduction of the design of the spoon, or of the spoon itself, would not constitute an infringement of the copyright in that design.
There are exceptions to this rule, however. For example, copyright remains enforceable if the design merely constitutes a graphic or photographic representation applied to the face of an article, depicts a fictional character, or is a trademark. These exceptions preserve copyright in "spin-off" merchandise from films and television shows.