Rights granted Copyright grants the sole and exclusive right to create and recreate a work whether wholly or substantially. It also includes the sole rights to: • publish the work if unpublished • perform the work in public • to produce, reproduce, perform or publish any translation of the work, • in the case of a dramatic work, to convert it into a novel or other non-dramatic work, • in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise, • in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed, • in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work, • in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication, • to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan, • in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program, and • in the case of a musical work, to rent out a sound recording in which the work is embodied, and to authorize any such acts.
Originality The
Act provides protection for all "original literary, dramatic, musical and artistic" works. Close attention has been paid to the use of the word "original". It has been well established that the foremost requirement for the subsistence of copyright is that the work is original. The
CCH Canadian case re-evaluated the meaning of "original" and found that for a work to be original it must be the result of the exercise of "skill and judgment". More specifically: skill, meaning the "use of one's knowledge, developed an aptitude or practiced ability in producing work", and judgment, meaning 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". Nevertheless, originality does not require any novelty or creativity. It does require intellectual effort beyond mere mechanical exercise. The determination of originality on the basis presented in
CCH Canadian depends on the facts. For a large part, it depends on the degree to which the work originated from the author. Many factors are considered, The medium or form used is significant. Whether it comprises elements that are in the public domain or not, whether it the ordering of data or facts, or whether the form is pedestrian or novel. Mere selection is generally not enough. As well, it is significant to consider whether there are any artistic elements to it.
Fixation Copyright provides the protection of expression of ideas. This entails that there must be a form, or "fixation", to the expression. It is fixation that distinguishes an expression from an idea. In
Canadian Admiral Corp. v. Rediffusion, the court considered fixation: "for copyright to exists in a 'work' it must be expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance." In this case, the court found that there was an insufficient fixation in the live broadcast of a sports event. Any sort of broadcast, telecast, or display of a spectacle on its own is not sufficient to be fixed. At the least, it must be simultaneously recorded in some fashion to be fixed. To the possible exception of choreographed works, there is a requirement that the work be recorded in a relatively permanent form. Typing a note into a computer screen may be sufficiently permanent. Some cases have shown that unstructured speech or other spontaneous or improvised creations, such as a sports game, cannot contain copyright.
Exclusion Both facts and ideas are by their very nature uncopyrightable. This will often create difficulties when it becomes necessary to separate the idea from the expression as well as in the separation of fact from the arranging and use of those facts. Where the distinction between idea and expression becomes obscured the Courts often take a precautionary view that it cannot be copyrighted so as to avoid preventing others from expressing the same idea. Minor designs that are largely ornamental or functional are excluded as well. For example, coloured blocks used as tools in an educational program are excluded.
Ownership The copyright of an artist's work is owned directly by the artist in most cases with the exception of
engravings,
photographs,
portraits, and works created in the course of employment. Furthermore, these rights can be alienated through assignment and licences. An artist's moral rights, however, are inalienable and stay with the artist their entire lives. As with copyrights, moral rights are inheritable.
Crown Copyright Section 12 of the
Copyright Act reserves copyright for all works that are "prepared or published by or under the direction or control of Her Majesty or any government department." Normally, such copyright lasts for a period of 50 years following the end of the calendar year when the work was performed or created. As of November 18, 2013, Crown Copyright and Licensing is no longer centrally administered, and the department or agency that created the information must be contacted for specific Crown copyright information. This has resulted in varied approaches by different organisations, where "the non-commercial licence has disappeared from the Public Works and Government Services site and it is unclear whether it remains active", and where "some departments have denied permission or asserted crown copyright to take down content". One example of Crown copyright being applied beyond the 50 year expiration mark is the 1921 design of the
Arms of Canada, and its 1957 revision, which "may not be reproduced, whether for commercial or non-commercial purposes".
Music recordings The music industry created a loophole in Canadian copyright laws when it asked for a levy on
blank audio media. Since 1999, these private copying levies on blank audio recording media (such as audio cassettes, CDs and CD-Rs) have raised millions of dollars for songwriters, recording artists, music publishers and record companies who partake in the industry system. In exchange, and subject to certain exceptions, the act of copying music onto an audio recording medium for the private use of the person who makes the copy does not constitute copyright infringement. Also, the statutory private copying provision is silent as to whether the person doing the private copying must also be the owner of the music being copied. Some argue that the private copying levy legalized copying in the digital age, to the consternation of the music industry. However, Canadian courts have not extended the definition of "audio recording medium" to exempt music copied onto computer hard drives, digital audio recorders (such as iPods or MP3 players), or other types of permanently embedded memory.
Foreign works Section 5 of the
Copyright Act applies copyright protection to all citizens, residents, and corporations of Berne Convention, Universal Copyright Convention and
World Trade Organization countries. The status is determined at the time the work is created or published. The section also permits the Minister of Industry to certify that these rights are extended to other countries. These are listed in the Regulations
Copyright terms Up until December 31, 2022, copyright of a work by an author was limited to 50 years from the end of the calendar year of death. As of January 1, 2023, this was changed to 70 years from the end of the calendar year of death. Any author who died in 1971 or before means that all their work was in the public domain. For authors who died in 1972 this was changed to 70 years from the end of the calendar year of death. The law was not made retroactive which means that any author who entered the public domain stays in the public domain. Authors who died in 1972 will not become public domain until 2043. Except if the work is a cinematographic work in which case it's 70 years from the year in which the work is made. However, if the cinematographic work is published before copyright expires, the copyright continues until the earlier of the end of 75 years past the year of publication and 100 past the year in which it was made. The same rules apply for books with two or more authors, but in order to be public domain, all the authors must meet the criteria. In other words, the book's public domain eligibility relies on the date of death of the author who dies last.
Unknown or anonymous authors Where the identity of the author is unknown (if the author is anonymous or pseudonymous) then the copyright lasts for either 50 years from the publication of the work or 75 years from the making of the work, whichever is shorter. However, if author's identity becomes commonly known during this time, the term provided in section 6 applies. The act also makes provisions for posthumous works.
Orphaned works The
Copyright Act allows anyone who seeks permission to use a copyright-protected work but cannot locate the copyright owner to apply to the Copyright Board ("the Board") for a licence to use that work. Works that are published or fixed (as the case may be) are eligible for a licence. The four categories are eligible material are: • A published work (e.g. a book) • A published sound recording (e.g. a single from a previously released album) • A fixation of a performer's performance (e.g. the video recording of a live concert) • A fixation of a communication signal (e.g. a recorded broadcast of a hockey game) The Board can only issue a licence to works that are copyright-protected. If a work is not within the scope of copyright protection (e.g. a book containing only facts) or the copyright of the work is expired, the Board will not issue a licence since none would be required. Before the Board can issue a licence, the applicant must demonstrate that reasonable efforts have been made to locate the copyright owner and the copyright owner cannot be located. The Board takes many factors into consideration in determining what a "reasonable" effort entails. For example, the Board will take into account whether the proposed use is commercial, whether the work's author is still living, and whether information about ownership could be found in publicly available records. The Board can issue a licence for any rights belonging to the copyright owner. Any use that is not within the copyright owner's rights will not be issued a licence since none would be required. For example, no licence will be granted to copy an insubstantial portion of a work because it is not a use that is protected by copyright. Any particular licence will be specified to the needs of the applicant. For example, if the applicant asks for the authorization to distribute a film, the licence will read accordingly. Licences can also include permission to sub-license. For example, a film distribution licence can allow the licensee to enter into an agreement with a sub-distributor, provided the sub-distributor proceeds on the same terms as those set out in the licence. If the Board decides to grant an application for a licence, it must also set appropriate terms and conditions for that licence. Generally, the licence will be valid only in Canada, for a specified amount of time, and involves a reasonable royalty payment (either upfront to a collective society or to an owner if one emerges). Sometimes, the licence will also contain attribution obligations, requiring the licensee to indicate: the name of the author, that the use is carried out pursuant to a licence obtained from the Board, and how the owner might obtain compensation for the use made. According to their website, the Board granted 217 licences and rejected 8 applications between 1990 and 2013. Rejections were usually because no licence was required, or because the applicant had not proven that the work had been published (only published works are eligible for a licence). Although 217 licences had been granted, the number of works implicated is likely much larger. A 2009 study revealed that the 421 applications filed to date pertained to roughly 12,640 different works (a collection of orphan works would commonly proceed under a single application). The study also found that many applications were withdrawn or abandoned because the copyright owner was found with the help of the Board or a collective society.
Photographs As with other works, the copyright duration for a photograph is the life of the author plus 50 years. Until June 2012, the copyright owner of an engraving, photograph or portrait was considered to be the person who ordered the work once payment was made. The
Copyright Modernization Act repealed s. 13(2) such that the copyright is no longer held by the commissioner. Subject to a contract that says otherwise, the owner is now the photographer and the commissioner is granted limited rights to display and transmit the photograph without his or her permission. ==Penalties==