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About Copyright
- What is Copyright?
- What Types of Works are protected?
- Who Owns Copyright?
- How Long Does Copyright Last?
- Moral Rights
- Infringement of Copyright
What is Copyright?
Copyright is the exclusive legal right to reproduce, publish and sell a work. In other words, the Copyright Act [http://laws-lois.justice.gc.ca/eng/acts/C-42/index.html] provides copyright protection to what is referred to as authors/creators.
Under copyright legislation, the author/creator is the party that not only writes something, but that also takes a photograph, designs computer software, produces audiovisual materials, composes music, designs maps, or draws plans or illustrations in either paper format or other mediums.
It is important to note that the Copyright Act does not protect ideas, concepts, or themes, but that it does protect the language and words used to express such ideas, concepts and themes.
In Canada, copyright in a work comes into existence when a work is created. Under Canadian copyright legislation rights of the author/creator are protected whether or not he or she has marked the work with the standard copyright symbol "©".
What types of works are protected?
Copyright in works are divided into seven categories.
- Literary work (Covers works in electronic and paper formats)
- Memoranda, email messages, journals, books, magazines, text books, talking books (the underlying work, not the recorded voice), periodicals, monographs, government records and reports, pamphlets, newspapers, poetry, genealogical materials, letters, statistics, computer software, statutes, law reports, judicial decisions, forms, court records, databases, published and unpublished research papers, brokers' reports, stock reports, annual reports, manuscripts, microforms (print on plastic), theses, conference proceedings, industry standards, Braille, postings to Internet newsgroups, large print materials, compilations of literary works on CD-ROMs and databases.
- Dramatic work
- Video recordings, documentaries, films, radio, television and cable programs, plays, choreography, CD-ROMs containing compilations of dramatic works.
- Artistic work
- Patterns, art slides, maps, atlases, paintings, architectural drawings, plans, stage and costume designs, digital images, drawings, photographs, charts, mosaics, art prints, compilations of artistic works on CD-ROMs and on Websites.
- Musical work
- Sheet music, songs with or without words, audiocassettes, audio CDs.
- Sound recording
- CDs, talking books, oral history tapes, vinyl albums, phonographs, audio books, audio cassettes, papers recorded at seminars, audio tapes of speeches and lectures, sound effects, spoken word recordings, language cassettes for ESL, compilations of sound recordings on CDs.
- Performer's performance
- Recorded performances of actors, authors, singers, musicians and dancers on tapes, cassettes, CDs, CD-ROMs, video recordings and films, compilations of performances by performers on records, CDs and in audiovisual formats.
- Communication signal
- Television and radio signals
Who Owns Copyright?
As a general rule, the author/creator is the first owner of copyright in a work. Where permission to use copyrighted material is needed, it is only the author/creator who can permit usage of his works. The author/creator of a work is furthermore, the only party that can sell, license or give away copyright. The author/creator can also transfer copyright in his works in its entirety or in parts.
Thus, ownership of copyright is like a chain, with the author/creator being the first owner, therefore being the first link in the chain. Links are added each time the author/creator sells, licenses or gives away all or part of the copyright.
Exceptions
Although an author/creator is the first owner of copyright in a work, there are exceptions.
- Government of Canada works
- Unless otherwise specified, copyright in works prepared by or under the direction or control of the Government of Canada (Crown) is owned by the Crown.
- Works created by employees
- Where an author/creator is employed, and the work is made as part of that employment, the employer instead of the author/creator is the first owner of the copyright.
- Photographs
- Instead of the author/creator being the first owner, the person who owns the initial negative, or the actual photograph if there is no negative, is the first owner of the copyright.
- Sound recordings
- Copyright in a sound recording belongs to the maker of the recording instead of the author/creator. A maker is the person by whom the arrangements necessary for the first fixation of the sounds are undertaken.
- Performances by performers
- Copyright in the performances of actors, singers, dancers and musicians belong to the performer.
- Communication signals
- Copyright in a signal emitted by a broadcaster belongs to the broadcaster of the signal.
The Reproduction of Federal Law Order
As the result of the Order In Council that was passed in January of 1997, there is no requirement to seek permission to reproduce primary legal information of the Government of Canada and there are no applicable fees. The Reproduction of Federal Law Order [http://laws-lois.justice.gc.ca/eng/regulations/SI-97-5/index.html] applies only to Government of Canada legislation, statutes, regulations, court decisions and tribunal decisions and authorizes anyone, unless otherwise specified, to copy federal legislation, statutes, regulations, court decisions and tribunal decisions without the usual restrictions that govern Crown copyright materials, provided that one is careful to ensure the accuracy of the materials reproduced and that the reproduction is not represented as an official version.
The Reproduction of Federal Law Order does not apply to any materials that have been copyrighted privately or separately by a third party, and that happens to have been included with, added to, or referred to in the Government of Canada legislation, statute, regulation and/or decision. An example of this would extend to the reproduction of added-value features such as the captions of headnotes, footnotes, summaries and additional comments which are added to decisions handed down by federally constituted courts and tribunals. These added-value features are not included in the Order and therefore, reproduction is prohibited without having secured written authorization.
Physical Ownership of a Work Versus Ownership of Copyright
There is a difference between owning a physical object and owning copyright. Ownership of a physical object does not include ownership of the copyright of that object. For example, the purchase of a magazine, book, photograph, map, film, or sound recording does not mean that you also own copyright of these objects. Therefore, in order to use the physical object outside of its intended purpose, you are obliged under the Copyright Act [http://laws-lois.justice.gc.ca/eng/acts/C-42/index.html] to obtain written permission from the author/creator. Failure to do so could be deemed an infringement of copyright.
How long does Copyright last?
As per the Copyright Act [http://laws-lois.justice.gc.ca/eng/acts/C-42/index.html], copyright in a work exists for the life of the author/creator, the remainder of the calendar year in which he is deceased, plus fifty years after the end of that calendar year.
For Crown copyrighted works, there is a slight difference. Section 12 of the Copyright Act stipulates:
12. Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year. [S.C. 1993, c. 44, s. 60(1)]
Works in the Public Domain
Public domain refers to works that belong to the public. Works in the public domain can be used free of charge and do not require written permission from the author/creator.
Works can be in the public domain for a variety of reasons. Examples: the term of the copyright has expired, the work was not eligible for copyright protection in the first place, or the copyright owner has authorized the public to use the work without permission or payment.
Some examples of works in the public domain are explained below.
Titles, names, slogans, short word combinations:
To be protected, a work must be something substantial. Sometimes an original and distinctive title can be protected.
Ideas:
Copyright protects the expression of an idea but does not extend to the idea itself. Until an idea is expressed in a fixed form (i.e. paper, electronic or digital media), there is no copyright protection.
Facts:
It is the expression of facts that is protected by copyright, not the facts themselves. For example, the facts in a magazine article are in the public domain. Anyone can use those facts as long as they do not copy the way the author of the article has expressed them. As long as you use your own words, you will not infringe copyright.
Expired copyright:
When the term of copyright protection ends or expires, works fall into the public domain. A work in the public domain is free for everyone to use without permission or payment of royalties. In Canada, you can even modify public domain works without permission.
Moral rights
There is a provision in the Copyright Act (R.S.C., Chapter C-42, Section 14) [http://laws-lois.justice.gc.ca/eng/acts/C-42/index.html], which sets out the moral rights of an author/creator. Moral rights are personal to an author/creator regardless of who owns copyright. Unless an author/creator waives his moral rights, these rights cannot be assigned.
Moral rights exist for the same period of time as the copyright in a work.
An author/creator may exercise the following moral rights as provided for in the Copyright Act:
- Right of Paternity
- This right includes the right to claim authorship, the right to remain anonymous, or the right to use a pseudonym or pen name.
- Right of Integrity
- In the case of a work being adapted, modified or translated, the author/creator's right of integrity must be respected. As stipulated in the Copyright Act, an author/creator's right to the integrity of his work is violated if the work is a distortion, mutilation or modification of the work that is prejudicial to the honor or reputation of the author/creator.
- Right of Association
- Part of the Right of Integrity is an author's/creator's Right of Association. This means that an author/creator has the right to prevent anyone from using his work in association with a product, service, cause, or institution.
Infringement of Copyright
- Infringement
- Infringement is the legal word for breach or violation of the rules in the copyright law. There are two kinds of infringements: direct and indirect.
- Indirect infringement
- Indirect infringement refers to persons who deal with infringing copies, or who, without legal authority, permit a public performance of a work. These provisions usually concern commercial dealings through sales of copies, commercial distribution, and trade.
- Direct infringement
- Direct infringement is where someone, without permission, does something only the copyright owner has the right to do or authorize. For example, only the copyright owner has the right to make a copy or authorize the making of a copy. When a person makes a copy this is direct infringement unless permission is obtained or an exception applies.
Consequences
There are consequences for breaking any law. Breaking or infringing the copyright law is no different. The consequences of infringing the copyright law can be civil or criminal, and are set out in the copyright legislation.
For example, a civil court may decide that money be paid as compensation for damages caused by unauthorized use of a copyright work. This civil remedy is the most common and frequently-sought type of remedy.
Another type of civil remedy is an injunction to prevent or stop infringing activities. A court has the authority to order the infringing party to account for the profit made from infringing activities and to order that all infringing copies become the property of the copyright owner.
A unique feature of the civil remedy system in the Copyright Act [http://laws-lois.justice.gc.ca/eng/acts/C-42/index.html] is a statutory limit on the amount of damages that a court can award to a copyright owner who has not authorized a collective society to license the photocopying of his or her work. Damages are limited to the amount the copyright owner would have received from a collective, either under an agreement or under a tariff set by the Copyright Board of Canada.
Infringement of the Copyright Act can also have criminal consequences. These remedies in the Copyright Act involve fines and possible imprisonment. The Act provides for a maximum fine of $1,000,000 where the offence is a serious one. The criminal sections in the Copyright Act are traditionally used to deal with commercial piracy. Examples most frequently encountered are copying videotapes/DVD in order to rent or sell them, and selling or dealing in illegal copies of video games, compact discs, computer programs, or music.