Copyright: Protection for artistic works
What does copyright protect?
Copyright exists in Canada in every original literary, dramatic, musical and artistic work authored by a Canadian citizen, or by a person that ordinarily resides in a country that has signed certain treaties with Canada.
What is required for a work to attract copyright protection?
In order to receive protection as a copyrighted work, the work must be an original (i.e., new and not copied) expression of an author’s skill and judgement. Facts and mathematical concepts, for example, are not copyrightable.
An author of a copyrighted work is not required to apply for a copyright registration from CIPO in order to have a valid copyright. An author owns the copyright to a work as soon as a work that attracts copyright protection is created.
However, an author can apply for a copyright registration, and doing so is a simple process with a relatively small fee. Registering the copyright with CIPO provides certain advantages, including the presumption that the work belongs to that registered owner.
What rights does the copyright holder have over the copyrighted work?
A holder of copyright has the sole right to produce or reproduce the copyrighted work, or any substantial part thereof, unless a defence to infringement applies. For example, unless the author of a book provides authorization to someone else, or a defence to copyright infringement applies, only the author of a book can make copies of the book, including for the purpose of selling those copies. Furthermore, only the author has the right to convert one work into another (for example, making a book into a movie), although there are certain exceptions to this principle.
How long does copyright last?
In general, an author’s copyright lasts for the life of the author, plus 50 years after the author’s death. However, a lengthening of this term to 70 years after the author’s death may be forthcoming, as this has been agreed to in the Canada-United States-Mexico Agreement (Article 20.62), and proposed in the 2022 Federal budget.
Furthermore, there are different laws regarding the length of copyright protection that apply to certain situations and different types of copyrightable works. For example, in a case where there are two or more authors of a work, the copyright exists during the life of the author who dies last, until the end of the calendar year that that author dies, and 50 years thereafter. Outlined below are some exceptions concerning specific types of copyrightable works.
What are some examples of copyrightable works?
Examples of types of works that may attract copyright include: songs, books, magazines, newspapers, paintings, sculptures, photographs, tv shows, movies, Tiktok® or Instagram® videos, theatrical plays, the appearance of websites, and computer code.
Are there exceptions when copyright does not apply?
There are some times when copyright does not apply. For example, copyright is intended to protect artistic works, while “industrial designs” are intended to protect the appearance of useful articles produced in large numbers. Assuming that copyright exists in a useful article (such as an artistically shaped office desk), copyright may be asserted against a person that copies the design of the useful article, as long as the copyright owner has made only 50 or fewer of the item.
Once the owner creates more than 50 of that article, it is no longer considered a copyright infringement if someone other than the owner reproduces that article. This “rule of only creating 50” does not apply to certain uses of the work, which include:
- Graphic representations applied to the face of an article (for example, a photograph or drawing applied to a t-shirt);
- Use of the work as a trademark;
- Materials that have a woven or knitted pattern, or that is suitable for surface covering (for example, carpets);
- An architectural work that is a building;
- A representation of a real or made-up being, event, or place that is applied to an article as a feature of shape, configuration, pattern or ornament; and
- Articles sold as a set, unless more than 50 sets are made.
Some other examples of exceptions and defences to infringement are described below.
What are the defences that allow an unauthorized person to copy a copyrighted work without repercussions?
The Copyright Act, which governs Canadian copyright law, contains what are known as “fair dealing” provisions.
Copying a work for, among other things, the purpose of research, private study, education, parody or satire does not infringe copyright. However, copying for these purposes must still be fair. There are several factors that should be considered when making this determination, including the purpose of the copying, the amount taken, the alternatives to copying that were available, and the effect of the copying on the work.
What happens if someone who is not authorized to do so reproduces a copyrighted work?
This is known as copyright infringement. The copyright owner may pursue their exclusive rights against the alleged infringer in court in a copyright infringement lawsuit. If successful, the copyright owner is typically entitled to an injunction preventing further infringement of the copyrighted work by the infringer, and monetary damages that compensate the copyright owner for losses suffered because of the infringement.
Since it may be difficult to quantify the monetary loss an author has suffered from copyright infringement, the Copyright Act allows the copyright owner to elect to receive “statutory damages” instead. Statutory damages allow the copyright owner to receive between $500 and $20,000 per infringed work, if the infringement is for commercial purposes. If the copyright infringement is for non-commercial purposes, statutory damages permit the copyright owner to receive between $100 and $5,000 per infringed work.