Copyright in Canada – Overview

Copyright in Canada – Overview

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  [relatively limited] right to prevent others from: Producing or reproducing work [without permission], Performing work in public, Publishing work, Engaging in or authorizing above acts [e.g. Does McGill authorize CR infringement by placing photocopiers in library?]
  

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  Copyright protection in Canada is automatic on the creation of the work. Helps if you put name, copyright symbol and date of creation on it.
  
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  Nevertheless, can register copyright with the Canadian Intellectual Property Office to obtain a presumption of validity: “The Register of Copyrights is evidence of the particulars entered in it…” [s. 53(1) of the Copyright Act]
  

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  Statutory origin: S. 5(1)  CR shall subsist in every original literary, dramatic, musical and artistic work. S. 2  def’n of it.
  
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  Standards of originality have been articulated in the following cases  Tele-Direct, Feist, CCH (S.C.C.)
  

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  Copyright is about expression – what is being protected is an instantiation of some content, a fixed expression of that content.
  

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  Work must be fixed, though Act nowhere specifies that fixation is a general condition of protection: “for CR to subsist 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”
  
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  Work must be fixed (e.g. words written down or song recorded) but work need not be physical
  
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  Why must a work be fixed? If we are going to protect something – must be able to see that thing. Vaver suggests that fixation is not a general precondition for protection, but merely functions as evidence of the existence or character of a work. Thus, though most protectable works are fixed, they need not be. This perhaps leaves scope for protection of oral works – S. 2 supposedly protects all works “whatever may be the mode or form of its expression.”
  
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  [Note that Lametti spoke about idea-expression dichotomy here, but is it relevant?]
  

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  See s. 3(1) above – assuming you have original work, you have right to prevent people from copying
  
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  Theberge: there is no “reproduction” unless new copies are created (i.e. multiplication)
  
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  CR holder can prevent literal copying and non-literal copying. Nichols: the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations.
  
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  Wrt non-literal copying, the degree of similarity between works is key but hard to measure: Nobody has ever been able to fix that boundary, and nobody ever can [Nichols referring to the line between idea and expression]
  

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  See s. 3(1) above: sole right to produce or reproduce the work or any substantial part thereof.
  
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  Quantity vs. Quality: court will assess both; quality is more important, i.e. small copied portion may be qualitatively significant [for instance, if that part was an original part of the work]. Whether or not the portion copied is original or “stock”, idea or expression, goes to quality and thus to substantiality.
  

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  Defense vs. fundamental part of copyright: S.C.C. in CCH held that they are not defences, but an integral part of copyright; they constitute users rights.
  

General fair-dealing exemptions:

Exemptions for specific institutions:

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  Initially, was much wider, open and more flexible concept than “fair dealing” in Canada. After CCH, that may no longer be true. S.C.C. in CCH effectively adopted criteria for “fair use” used in U.S.
  
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  Almost any commercial use is presumptively unfair; Non-commercial use only unfair if strong evidence of likely future harm
  
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  DL: explicitly trying to balance protection of artists with protection of public. More narrow exceptions = wider rights to the author. SH: fair use/fair dealing ties into scope and
  

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  Life of the author plus 50 years [starting from end of calendar year] (s. 6 CA Act)
  
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  Moral rights term runs with CR and expires with CR (who can bring claim?  party to which CR has been bequeathed; successors]
  

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  Anonymous works: lesser of 50 years from date of publication and 75 years from the making of the work
  
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  Posthumous works: 50 years from publication
  
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  Joint authorship: 50 years from end of year in which last author dies
  

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  “Artistic work” includes paintings, drawings, maps, charts, plans, photos, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works.”
  

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  What is the standard of originality? Historically the standard was quite low – originality in the sense of originating.
  
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  Word “artistic” identifies phrase “artistic work” and used to qualify “artistic craftsmanship”
  
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    We are in a very subjective realm here. Double use of the word “artistic” invites courts to speculate (DL and armchair example – are they artistic?).
    
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    Extremely difficult to be objective about what constitutes an artistic work.
    
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  Does the use of the word “artistic” in the phrase import any requirements of “artistic-ness” on the object?
  

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  “any building or structure or any model of a building or structure”
  
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  provision used to specify “architectural works of art.” Case under that provision – split-level home not protected. Blueprint of house would be protected but one who stood in the street, drew house and then built it would not infringe.
  
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  “of art” was dropped but DL doesn’t think std. will change too much. Certain std functional elements will be tantamount to literary archetypes or scenes a faire, and thus not be protected (SH: an originality Q)
  

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  “includes tables, computer programs, and compilations of literary work”
  
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  literary pertains to use of words, not to “literature”. Need not be great writing
  
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  “computer programs” redundant – protect software elsewhere in Act (pursuant to int’l conventions)
  

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  “work includes the title thereof when such title is original and distinctive.”
  
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  SH: If taking title = taking substantial part of work, then one who appropriates title and uses it for a totally different work may be infringing. Book called “Harriet Potter” might infringe “Harry Potter” CR
  
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  Lametti thinks that there is some potential for a character to be protected but probably not a free-standing title.
  

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  “Computer program means a set of instructions or statements, expressed, fixed, embodied, or stored in any manner, that is to be used directly or indirectly in a computer in order to bring about a specific result.”
  
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  TRIPS agreement requires that all party states protect computer programs in copyright
  

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  “Dramatic work” includes
  

1. 
   any piece for recitation, choreographic work or mime, the scenic arrangement or acting form of which is fixed in writing or otherwise
   
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   any cinematographic work; and
   
3. 
   any compilation of dramatic works.
   
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     Note that improv could be covered here  “fixed in writing or otherwise [e.g. in performance]
     

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  “musical work means any work of music or musical composition, with or without words, and includes any compilation thereof.
  
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  Note that there can be many subsisting copyrights in one song. Words to song are protected [under musical works or literary works], music itself, music and lyrics together [can have single copyright in combined music and lyrics to a song].
  

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  What are the various parts of a musical work?  melody, harmonic structure, rhythm, hook
  
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  Any or all of these things if copied might be a copyright infringement if there is substantial similarity.
  

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  “compilation” means
  

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   a work resulting from the selection or arrangement of literary, dramatic, musical or artistic works or parts thereof; or
   
2. 
   a work resulting from the selection or arrangement of data
   

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  Feist,CCH, Teledirect  certain quality of selection/arrangement is required to get protection
  

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  Assignment changes ownership of underlying copyright (in whole or in part).
  
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  License involves contractual relations only. We are all licensees of software – we do not own it. SH: by virtue of art. 13(5), the right of an action for infringement can be transferred by assignment or license.
  

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  Associated with reproduction or retransmission of one of the base rights
  
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  S. 15  Performer has CR in the performer’s performance
  
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  S. 18  Maker of sound recording has a CR in the sound recording
  
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  S. 21  Broadcaster has a CR in the communication signals that it broadcasts.
  
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  Cannot have a copyright in a football game – if you could bring camera into stadium, you could film the game. BUT…the broadcaster of the game has the broadcast rights  cannot tape the game b/c would be infringing on their broadcasting rights.
  

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  In addition to economic rights in work – have moral rights abiding in your work. These protect the integrity of the work AND the right to be associated with it or remain anonymous.
  
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  S. 14.1(1): The author of a work has, subject to s. 28.2, the right to the integrity of the work and, in connection w/ an act mentioned in s. 3, the right, where reasonable in the circumstances to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.
  

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  “The author’s right to the integrity of a work is infringed only if the work is, to the prejudice of the honour or reputation of the author,
  

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   distorted, mutilated or otherwise modified; or
   
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   used in association with a product, service, cause or institution.”
   

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  Test is objective-subjective (see Snow and Guerin)
  
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  Does the right extend to a copy of the work?
  

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  Moral rights cannot be assigned.
  

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  S. 14.1(2): moral rights may not be assigned but may be waived in whole or in part
  

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  Can the holder waive her moral right in a work before the work is created? DL says it is not likely. You waive the work with the copyright
  
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  What is the effect of a waiver?
  
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    S. 14.1(4): where a waiver of any moral right is made in favour of an owner or licensee of copyright, it may be invoked by any person authorized by the owner or licensee to use the work, unless there is an indication to the contrary in the work. DL: seems to go beyond a waiver; almost tantamount to assigning moral rights.
    

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  S. 28.2(2): In the case of a painting, sculpture or engraving, the prejudice referred to in subsection (1) shall be deemed to have occurred as a result of any distortion, mutilation or other modification of the work
  
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  This was added recently – Snow would be a stronger case under this modification.
  
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  DL: why single out painting, sculptures and engraving?
  

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  Universal protection throughout member states
  
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  National treatment
  
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  Absence of formalities
  
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  Term of protection
  
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  SH: U.S. never signed on
  

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  For non-signatories of the Berne Convention
  
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  States entitled to retain certain formalities (SH: such as registration requirement?)
  
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  Term of protection defined by reference to term of years
  
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  Less detailed than Berne Convention
  

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  Agreement on Trade Related Aspects of Intellectual Property Rights under WTO Agreements
  
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  Requires compliance with Berne (1971)
  
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  National treatment
  
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  Most-favoured-nation treatment
  
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  Protection of computer programs and compilations of data
  
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  Protection of performers and broadcasting
  

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  For Berne members (including all WTO members), once obtain copyright in Canada, obtain copyright in all other member countries according to their copyright laws
  
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  For non-Berne but UCC members, may have to register to obtain copyright in that member state