The word “copyright” and the © symbol are used to indicate that an artistic or literary work is protected by copyright.
In French, the usual translation for copyright is droit d’auteur (authors’ rights) but the word copyright can be used as well. Both terms refer to legal provisions applicable to creative works. However, copyright and authors’ rights aren’t entirely synonymous. Canada has developed a hybrid system that incorporates elements of both concepts.
Copyright and authors’ rights aren’t true synonyms. They represent distinct legal concepts as defined in the territories where the creative content is used.
Simply put, authors’ rights are a civil law concept found in most European nations, including France. Copyright, on the other hand, applies in common law countries such as the United States, United Kingdom, Australia and New Zealand.
Copyright is based primarily on economic considerations. It is the right to use content. It protects the people who invest in intellectual property (producers, employers, etc.) more than it protects the authors of the creative works.
In contrast, authors’ rights protect the creators first and foremost. That is the essential difference between copyright and authors’ rights. [Translation]
Copyright is intended mainly to protect intellectual property — and the rights of the content owners — rather than protect the creators of the content in question.
Authors’ rights fall into the category of human rights and define the rights of creators of artistic and literary works. Those rights are an extension of the freedom of expression and can be qualified as “consubstantial” with the author’s body.
What difference does it make?
In concrete terms, the difference leads to variable treatment of the content creator’s moral rights, which are less important (or even inexistent) under copyright whereas they’re very important when it comes to authors’ rights.
In certain territories governed solely by copyright, such as the U.S., moral rights simply do not exist for authors.
In territories where authors’ rights apply, moral rights exist and, what’s more, they’re considered inalienable and cannot be assigned.
What about Canada?
Guess what? When it comes to copyright, Canada is a hybrid country, taking inspiration both from the European civil law tradition as well as the Anglo-Saxon common law tradition. As a result, we blend the concepts of copyright and authors’ rights.
An illustration of that mix appears in the titles of our applicable legislation, which is called the Copyright Act in English and the Loi sur le droit d’auteur in French.
The main difference is that within Canada, authors retain their moral rights because those rights are inalienable and cannot be assigned to others.
Moral rights protect authors, their reputations and the meanings they want to give to their creations.
“The Copyright Act also states that the author of a copyright-protected work has moral rights. Those rights allow the author to be acknowledged as the creator of the work or to remain anonymous. Authors can also preserve the integrity of their work against any use that could be prejudicial to the author’s honour or reputation.
As a result, bibliographic references for the work, including the author’s name, if known, must be indicated. In addition, the work cannot be distorted, mutilated or otherwise modified or used in association with a product, service, cause or institution in a way that could be prejudicial to the author’s honour or reputation.
Authors cannot assign their moral rights by they can refrain from exercising them.”
– Copibec, Copyright Act Overview
Across Canada, businesses often add the word “Copyright” to their content rather than indicating “All rights reserved”, which is a common formulation for protecting authors’ rights. In the end, for the purposes of applying the principles laid out in the Copyright Act, copyright and authors’ rights are essentially the same thing.
The general rule in the Act is that the content produced by other people can’t be used without their permission.
What if the content is produced by employees or freelancers?
Even in countries where authors’ rights apply rather than copyright, the content produced by businesses usually doesn’t include the creator’s name.
With respect to content created by people employed by a company as part of the company’s business operations, the Copyright Act stipulates that the right to use the content belongs to the employer, unless otherwise specified.
But be careful! When the content is created by freelancers, the “general rule” applies, which means the freelancers, not the businesses, own the rights to their creation, unless otherwise specified in a contract.
General rule applies to non-employees
If your business is signing contracts with freelancers, be sure to specify which rights you want to retain as a business, including authors’ rights. That way, you can guarantee that the rights are assigned to the business when it uses the services of freelancers.
This provision of the Act applies to anyone who isn’t an employee of the business, including volunteers.
By putting the provisions down in writing in a contract, the business or organization can make sure it’s the legal owner of the content created as part of its operations and can avoid legal action and other complications.