Copyright Act overview


The Copyright Act provides statutory protection for the creators of dramatic, musical, artistic or literary works such as books, newspapers and periodicals. However, to be protected, the work must be original and must be “fixed in any material form”. In other words, the copyright does not protect ideas but rather the expression of those ideas.

Under the Copyright Act, a distinction is made between the author and the copyright owner (or rightsholder). In general, the creator of a work is the author and the first owner of the copyright. In this case, the rightsholder is an individual.

The copyright owner may also be a body corporate or legal person, i.e. an employer (if the work was created by an employee) or the assignee of the copyright (e.g. a publisher). This distinction between the author and the copyright owner is especially important when it comes to protecting moral rights.

The copyright owner has the sole right to the following:

  • Produce or reproduce the work or any substantial part thereof in any material form whatever.
  • Perform the work or any substantial part thereof in public.
  • Publish the work or any substantial part thereof (if the work is unpublished).

The following sole rights are also included (non-exhaustive list):

  • Produce, reproduce, perform or publish any translation of the work.
  • Convert a dramatic work into a novel or other non-dramatic work.
  • Convert a novel or other non-dramatic work, or an artistic work, into a dramatic work, by way of performance in public or otherwise.
  • Make any sound or cinematographic recording of a literary, dramatic or musical work.
  • Reproduce, adapt and publicly present any literary, dramatic, musical or artistic work as a cinematographic work.
  • Communicate any literary, dramatic, musical or artistic work to the public by telecommunication (since November 7th, 2012, the communication to the public by telecommunication includes making a work available to the public by telecommunication in a way that allows a person to have access to it from a place and at a time individually chosen by that person).
  • Present at a public exhibition an artistic work created after June 7, 1988.
  • Authorize any such acts.

Exceptions

The author of a published work such as a book, newspaper article or periodical article has the sole right to authorize its reproduction. Consequently, such works cannot be copied without the author’s consent unless the copy is made under an exception specified in the Copyright Act.

The Act contains some exceptions that allow all or part of a copyright protected work to be reproduced without the copyright owner’s prior consent.

These exceptions are not well defined in the Act and the courts in charge of interpreting the Act have rendered only a few decisions regarding those provisions. The coming into force of the Copyright Modernization Act (Bill C-11) on November 7th, 2012 has increased the number of exceptions and the new exceptions are the object of many contradictory interpretations.

A well-known exception is the "fair dealing" exception for the purpose of private study, research, criticism or review, to which the Copyright Modernization Act added three new purposes: satire, parody and education. The extent of this exception is still very much debated among scholars and copyright specialists. In its ruling in the case of CCH Canadian Limited v. The Law Society of Upper Canada [2004] 1 S.C.R. 339, regarding the fair dealing exception, the Supreme Court said that the exceptions in the Copyright Act must be interpreted liberally and formulated the process that should be followed in determining whether copies made for a purpose of private study, research, criticism or review can be considered fair dealing. The Court introduced a two steps test and specified the factors to be taken into account when determining the fairness of the dealing. The following criteria were retained: the purpose, character and amount of the dealing, alternatives to the dealing, the nature of the copied work and the effect of the dealing on the work.

The Copyright Act specifies other exceptions under various conditions for certain types of users: non-profit educational institutions, non-profit libraries, archives and museums open to the public and researchers, and persons with perceptual disabilities. For further details about these exceptions, please refer to the Copyright Act.

Moral rights and copyright terms

There is another category of rights that belong to the author of a copyright protected work: moral rights.

Those rights mean that the author has a right of paternity with respect to the work and is entitled to preserve its integrity. Under the Copyright Act, the integrity of the work is infringed if, to the prejudice of the honour or reputation of the author, the work is distorted, mutilated or otherwise modified or used in association with a product, service, cause or institution.

Moral rights cannot be assigned to a third party but the author can waive them.

The general rule is that the copyright lasts for the author’s entire life plus 50 years following the author’s death (up to the end of the 50th year). After that period, the work comes into the public domain and can be used by anyone. For example, everybody can reproduce the works of Shakespeare. However, a recent translation of one of those works would be protected by copyright.

The length of the copyright varies from country to country. In Canada, foreign works are protected for the term specified in the Copyright Act, in compliance with the principle of national treatment set out in the Berne Convention for the Protection of Literary and Artistic Works.

Specific rules apply to the following categories: photographs, certain cinematographic works, sound recordings, performer’s performances, communication signals, works protected by rights of the Crown, works of joint authorship, posthumous works, anonymous works and works under a pseudonym.

 

Protection

No formalities are required in order for a work to be protected under the Copyright Act. Protection is provided automatically as soon as the work is created and “fixed in any material form”. Canada grants the same protection to foreign works in accordance with national treatment principles set out in the Berne Convention for the Protection of Literary and Artistic Works, which Canada signed in 1928.

The basic principle underpinning the Berne Convention is that all member states must give authors from other member states the same copyright protection they provide their own authors. Canadian works are therefore protected in other member states that have signed the Convention. To view a copy of the Berne Convention, please visit the site of the World Intellectual Property Organization (WIPO).

The international copyright symbol (©) or a notice prohibiting the reproduction or the use of a work without the copyright owner authorization are not generally required in Canada to ensure protection under the Copyright Act. However, a new exception entered into force on November 7th, 2012, following the adoption of the Copyright Modernization Act (Bill C-11), departs from the general rule. Indeed, an educational institution can, for educational purposes, reproduce, communicate by telecommunication to the public or perform in public, when the public primarily consists of students of the educational institution, a work available through Internet. This exception does not apply when the Internet website or the work is protected by a technological protection measure or if a clearly visible notice restricting the use of the work has been posted.

The copyright symbol may be required in certain countries that have signed the Universal Copyright Convention, which can be viewed at the WIPO site.

Information about copyright is also available from the following sites:

If you have any questions, please do not hesitate to contact us!