What is copyright? Is it similar to trademarks and patents? What does it protect and how long is protection afforded? Should I register my work? Does registration provide certain advantages? These are questions I receive from clients often and this article will serve as a basic guide to copyright law in Canada.
What Is Copyright?
Copyrights are different from trademarks (protection of words, logos and slogans used to distinguish the goods and services of one party from those of others) and patents (protection of inventions). Put simply, copyright is the “right to copy.” It encourages creativity amongst creators while protecting their legal and economic interests.
Works must be original and fixed in a material form to be copyrightable. It is automatically acquired from the moment you create the work. In a nutshell, once you put pen to paper or record a song, you have a copyrightable work. Under the Copyright Act, a copyright owner is afforded the sole right to produce or reproduce the work or any substantial part of it in any form.
What Works Are Protected?
Copyright law protects original literary, musical, artistic and dramatic works, including performers’ performances, communication signals and sound recordings (called neighbouring rights). Works must be original and cannot be copied without permission. The test for determining whether a work is original is it must be the product of exercising skill and judgment, and cannot be trivial or purely mechanical. Copyright protects the expression of works in many forms, including:
Films, screenplays, plays and scripts
Paintings, drawings and illustrations
Pamphlets, lectures and tables
Choreography and mime
What Works Are Not Protected?
Copyright law does not protect ideas, facts, short and one-word titles, as well as works not fixed in a material form. Hence, any works not put down on paper or recorded digitally in some format are not afforded copyright protection. Unoriginal works are also not afforded protection, as are works that have fallen into the public domain (which will be addressed below).
Duration Of Copyright Protection
Generally, a copyright lasts for the life of the author plus 50 years after their death. This is subject to change with the Canada-United States-Mexico Agreement (CUSMA), which will extend the duration of a copyright to life plus 70 years for works.
For joint authorships that have more than one author of a work, the copyright will last for 50 years after the death of the last surviving author.
After a copyright has expired, the work will fall into the public domain. This means that anyone may use the work freely once the copyright has expired without the owner’s permission. For instance, the copyright for Disney’s iconic Mickey Mouse character will soon expire and fall into the public domain.
Who Owns The Copyright?
The author is considered the first owner of a copyright. The author is the individual who writes the book, records the song, or composes the lyrics, among other things. There can also be multiple authors known as “joint authors,” each owning the copyright equally (subject to certain contributions made to the work).
However, if you produce a work within the scope of your employment, the employer will likely have you assign any right, title and interest in the work to them and become the owner. In the U.S., a work that is prepared in the scope of an employee’s employment or specially commissioned is considered a “work-for-hire.” Canada does not recognize work-for-hires. Instead, it is known as “works made in the course of employment.”
What Is Publication?
Publication means making works available to the public. If a work is published, the date and place of first publication are required when filing for copyright registration. It provides notice to the public as to when and where the work was first made available and provides valuable information, especially when litigating copyright claims.
How Do I Protect My Work?
Registration of your copyright is not required in Canada. It does provide certain advantages, especially if you initiate legal proceedings for copyright infringement and are seeking particular damages or remedies.
To register an online application with the Canadian Intellectual Property Office (CIPO), a $50 fee is required along with certain details surrounding the work. The owner will receive a registration certificate, which provides proof of ownership of the work. This creates a rebuttable presumption that a copyright exists and the person is the registered owner of that copyright.
Although not a requirement in Canada, owners should include copyright notices to put everyone on notice as to ownership. Copyright notices include a copyright symbol, year of first publication and name of the author. For example, © 2021 Ranieri Photography Inc. This notice should be placed either on or close to your work. Copyright notices may be used even if the work is not registered.
Copyright clearances should be conducted before a work is published or registered, as well as throughout phases of any musical or film production. A search of the Copyright Office will uncover any works that have been previously registered and entitled to prior rights. This search will provide information such as the copyright owner’s name and any changes in ownership. Other databases should also be searched to determine whether to obtain permissions or licenses from other copyright owners.
In contrast to the narrower interpretation of moral rights afforded to U.S. visual artists under the Visual Artists Rights Act (VARA), Canada affords copyright authors moral rights to their works. Moral rights protect the integrity of your work, the right to anonymity and the right of association. For instance, if you paint artwork on the side of a building, then you own a copyright to that work of art. However, if someone later decides to spray graffiti over your painting, you have a right to prevent the distortion, mutilation or modification of your work. Moral rights may be waived in whole or part, but cannot be assigned or transferred.
Licenses & Assignments
A license is similar to a lease in that you are affording another party the right to use your copyright in connection with certain rights and for a limited time. The copyright owner retains ownership of the work under a license. The rights afforded under a license are then reverted to the original owner after the license has expired or terms of the license are breached.
On the other hand, assignments are a grant of rights by the owner to a third party in which they convey a bundle of rights, which could include full rights or only a portion of those rights. An assignment is the sale or conveyance of rights in the copyrightable work from the owner to another party. Assignments must be in writing and signed by the copyright owner or duly authorized agent to be enforceable.
Licenses and assignments may be registered online with CIPO by paying a $65 fee. Registration of licenses and assignments protects parties when the chain of title or ownership is unclear.
What Is Copyright Infringement?
Copyright infringement is the unauthorized use of your copyrightable work. This can include anything from copying, selling, distributing, performing or displaying your work without your permission. Under the Copyright Act, if someone else copies your work, or creates a colourable imitation, they are considered to have infringed upon your work. In many instances, infringement is often difficult to assess and could take years to litigate. Each situation must be dealt with on a case-by-case basis.
There are exceptions or carve-outs for uses that would otherwise be considered copyright infringement. This concept is known as “fair dealing” in Canada and the equivalent is “fair use” in the U.S. This means that a third party may use your copyright without your permission subject to limited purposes. These purposes include the following: educational, research, private study, critique/review, news reporting and parody. However, fair dealing is a delicate balance and determined by several factors. It is frequently used as a defense to copyright infringement and an area that is not so “black or white” in terms of the law.
The Berne Convention is an international agreement governing copyrights. It provides that each member state must recognize the works from other countries and extend the same rights afforded to its citizens to those foreign works. This means that your work would be entitled to copyright protection without having to obtain individual copyright registrations in those foreign jurisdictions, so long as it is a member state to the agreement. It provides those from other signatory countries with protection as if the work was created in their own country.
Copyright law is a robust area of intellectual property, which protects various works in different industries such as entertainment, art, media and technology. It affords owners immediate protection of original and fixed works, even if they are not registered. However, if someone later copies your work without permission there may be a claim for copyright infringement. This is where registration provides certain advantages to copyright owners.
For more information about copyright law or in protecting your rights, Ranieri Law provides complimentary initial consultations.
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