Canadian copyright law
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Canadian copyright law is the area of law that defines copyright within Canada. As copyright is said to exist only in statute, most rights are derived from the Copyright Act. All powers to legislate copyright law are in the jurisdiction of the federal government by virtue of section 91(23) of the Constitution of Canada.
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[edit] Sources of law
Like most other common law countries there are no inherent rights to works, performances, or sound recording at the common law. Copyright exists solely in statute. According to section 91(23) of the Constitution Act, 1867 the federal government is granted exclusive power to enact laws related to copyright. The evolution of copyright in Canada has been guided by international treaties signed by Canada that try to unify copyright laws across the globe.
Canada is a party to the Berne Convention for the Protection of Literary and Artistic Works of 1886 and has signed but not yet ratified both the WIPO Copyright Treaty of 1996 and the WIPO Performances and Phonograms Treaty of 1996
[edit] Subsistence of copyright
Copyright is meant to protect the expression of ideas but never ideas in themselves.
[edit] 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 be 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 judgement". More specifically: skill, meaning the "use of one's knowledge, developed aptitiude or pracised ability in producing work", and judgement, 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. But 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 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 pedestrial or novel. Mere selection is generally not enough. As well, it is significant to consider whether there are any artistic elements to it.
[edit] 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." [emphasis added] In this case, the court found that there was 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.
[edit] 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.
[edit] 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 licenses.
An artist's moral rights, however, are inalienable and stay with the artist their entire lives. As with copyrights, moral rights are inheritable.
[edit] Government works
Section 12 of the Copyright Act reserves copyright for all works produced by the government for a period of 50 years following the end of the calendar year when the work has been performed, unlike the United States, where the government does not hold copyright. The exact extent of these reserved rights are not clear, see [1] for more on this.
[edit] Duration
According to s. 6 of the Act the copyright of a work lasts the life of the author plus 50 years from the end of the calendar year of death.[1]
For joint authors, the copyright of a work lasts the life of the author who dies last, plus 50 years from the end of the calendar year of that death.[2]
[edit] 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.[3] However, if author’s identity becomes commonly known during this time, the term provided in section 6 applies. There are separate provisions for joint authors whose identities are unknown[4], and posthumous works.[5]
[edit] Photographs
There is a separate provision for the copyright of photographs. According to s. 10[6] of the Act, the author of the photograph (and hence owns the copyright) is the person or corporation who was either 1) the owner of the initial negative or other plate at the time when that negative or other plate was made, or 2) was the owner of the initial photograph at the time when that photograph was made, where there was no negative or other plate. In contemporary terms, this means that the author of a photograph is usually the person who owns the film in the film camera, or whoever owns the digital camera.
Where the author is a person or a corporation whose majority shareholder is the photographer, s. 6 applies, and the term of copyright for the photograph is the life of the author plus 50 years from end of the calendar year of death.
Where the author is a corporation, the term of copyright for the photograph is the making of the initial negative or initial photograph, plus 50 years.
[edit] Why it exists
Copyright, generally, protects against production and reproduction of a work. Infringement is judged by the interpretation of the language of the type of work and the means of reproduction.
Moral rights protect the "integrity" of the work, and the right to be "associated" with the work. Infringement of moral rights happens when the work is "distorted, mutilated or otherwise modified ... to the prejudice of the artist".
In defence to infringement, there are rights to Fair dealing, which in Canada are limited to research or private study, criticism or review, or news reporting.
[edit] Notes
[edit] External links
| Sources of law | Constitution, federal statutes, provincial statutes |  |
|---|---|---|
| Core areas of law | Constitutional law, Administrative law, Criminal law, Contract law, Tort law, Property law | |
| Other areas of law | Aboriginal law, Family law, Immigration and refugee law, Labour and employment law, Copyright law, Trade-mark law, Patent law | |
| Courts | Supreme Court, Federal Court (Appeal), Courts of Appeal, Superior courts, Provincial courts | |
| Education | Law school, Law School Admission Test, Call to the bar | |
