Overview : Copyright

Copyright is unlike any other area of intellectual property.

Unlike any other area of intellectual property, all you need to do to have an original work protected by copyright is to create it. Registration is not a precondition to your work being protected by copyright. It arises merely by virtue of the work having been created. It is not unusual for people and companies to not even know that they own copyright in something that they have created.

Moreover, because most countries are members to one or more international treaties for protection of copyright, such as Universal Copyright Convention, the Berne Convention (over 160 member-states), WCT or TRIPS (over 150 member-states), once the work is created in one of these countries, it is also automatically protected in all other member-states. So even though in theory copyright, as all other intellectual property rights does not act extraterritorially, it is recognized in most countries of the world without any need to comply with any formalities.

What does copyright protect?

Copyright protects various results of human creative activity to the extent that such results have been expressed in a manner capable of being perceived by others. Most copyright laws refer to such results as “works”. World Intellectual Property Organization’s Glossary on Terms of the Law of Copyright and Neighboring Rights defines works eligible for copyright protection as “all original intellectual creations expressed in a reproducible form”.

It is very important to distinguish ideas from their expressions. Copyright does not protect ideas, but it does protect their expressions. This is where the reproducibility requirement comes from. Until the idea is expressed in a manner that would allow others to reproduce it, it is still merely an idea that cannot be protected by copyright. As soon as the idea takes some shape, it moves to the realm of expressions, even if it is still a draft.

This is an example of the relationship between ideas and expressions. Before I started writing content for this page, I had a pretty good idea of what I am about to write. I knew what areas I would need to cover, all the definitions were in my mind, and I knew where I was going with that. But it was still an idea, until I started typing. The first thing I created was an outline, something you see as headings in bold. This was already an expression, even though it is unlikely that it would have attracted strong copyright protection, because the outline as such is not terribly original. Then, as I wrote these paragraphs, I created an expression, an original literary work that fully qualifies for copyright protect.

My idea to create a website related to copyright is not protected. The scope of protection of my outline is very limited and would not cover anything beyond the headings themselves. The contents of this page in their totality, however, are protected by copyright, even if the quality of my literary talent does not quite match that of [insert the name of your favourite writer].

Besides mere ideas, copyright traditionally does not protect methods, processes, principles, scientific discoveries or facts. Also, it is important to always bear in mind that copyright is separate from ownership of a material object in which a work is embodied. Hence, if you buy a laptop with a pre-installed operating system, you will own the laptop, but you will not own copyright in the OS – whether it is Windows, MacOS, Linux or some other open source or proprietary operating system. Assuming that the operating system was installed legally, all you will have with respect of it is a limited license granted to you by the copyright owner to the OS.

What original works can be protected by copyright?

According to Canadian Copyright Act, copyright subsists in “every original literary, dramatic, musical and artistic work”, which includes “every original production in the literary, scientific or artistic domain, whatever may be the mode or form of its expression, such as compilations, books, pamphlets and other writings, lectures, dramatic or dramatico-musical works, musical works, translations, illustrations, sketches and plastic works relative to geography, topography, architecture or science.”

While division of works into literary, dramatic, musical and artistic may be useful in terms of enumeration, the actual scope of these categories is generally understood in the broadest possible sense. It is important to note that copyright protects works regardless of their artistic merit or quality, and also when it has very little in common with what is traditionally understood as literature, art or science.

For example, a comment you leave in someone else’s blog may well be protected by copyright as a literary work. Likewise, an icon someone designs for your iPhone app may also be protected by copyright as an artistic work. Software code is also traditionally protected as literary works.

Is anything else protected by copyright?

Yes, performers’ performances, phonograms (sound recordings) and communication signals, which are usually called “neighboring” or “related” rights in other countries, are collectively referred to as “other subject-matter” and are covered by copyright in Canada, albeit the scope of such protection is substantially more limited compared to copyright in works.

What does it mean when a work is protected by copyright?

According to s. 3 of the Copyright Act, copyright, in relation to a work, means the sole right to use the work in certain ways, and to authorize such use by others.

This covers three major areas: publishing an unpublished work or any substantial part thereof; producing or reproducing the work or any substantial part thereof in any material form whatever; and performing the work or any substantial part thereof in public.

Further, the Act enumerates, in a non-exhaustive list, several specific uses in respect of which copyright vests in the owner the sole right: creation and use of any translation of the work; conversion or an adaptation of the work into a different form; mechanical reproduction of the work; presenting the work at a public exhibition; communicating the work to the public by telecommunication; renting out the work (in case of computer programs or recorded musical works).

Because copyright vests in the copyright owner the right to control various ways in which the work can be used, and because there may exist very flexible schemes in which copyright owner decides to allow some but not other uses of the work, copyright is often referred to as a “bundle of rights”.

In practical terms, in order to use the work created by someone else, in most cases the copyright owner’s permission is required.

There are two major exceptions to this general rule.

First, there is a time limit after which the work is no longer protected and is said to have fallen into the public domain. Currently, the terms of copyright protection in Canada is merely 50 years counted from January 1 following the author’s death. This is usually referred to as “Life + 50”. Most developed countries currently protect copyright for 70 years counted from January 1 following the author’s death.

Second, copyright laws usually contain a list of specific cases where the use of a work protected by copyright requires neither the copyright owner’s permission, nor the payment of royalties. The most notable exceptions in Canada today are:

• use for the purpose of research or private study;
• use for the purpose of criticism or review;
• use for the purpose of news reporting;
• certain uses by educational institutions;
• certain uses by libraries, archives and museums;
• incidental use;
• certain uses by broadcasters;
• certain uses by persons with perceptual disabilities;
• and certain others.

The proposed Bill C-11 significantly encroaches the rights of authors and copyright owners and expands this list by legalizing unauthorized use of works:

• for the purpose of education, parody or satire;
• to create non-commercial user-generated content;
• by reproducing them for private purposes;
• by recording programs for later listening or viewing;
• by making backup copies;
• to ensure interoperability of computer programs;
• and certain others.

What remedies are available to copyright owners whose copyright was infringed?

Under s. 34 of the Copyright Act, where copyright or a moral right has been infringed, the owner of the copyright or the holder of the moral right is entitled to all remedies by way of injunction, damages (including exemplary and punitive damages), accounts, delivery up and to other remedies that are or may be conferred by law for the infringement of a right.

In addition to damages, an owner of the copyright may recover possession of all infringing copies and of all plates used or intended to be used for the production of infringing copies, as if they were the property of the copyright owner.

Instead of damages and profits, a copyright owner may elect to recover statutory damages that range from $500 to $20,000 with respect to all infringements involved in the proceedings for each work or other subject matter. Under the proposed Bill C-11, statutory damages for infringements effected for non-commercial purposes will range from $100 to $5,000 with respect to all infringements for all works or other subject matter involved in the proceedings. Courts have discretion to reduce statutory damages if they would otherwise be grossly out of proportion to the infringement.

Remedies may be limited to injunction when the infringer was not aware and had no reasonable ground for suspecting that copyright subsisted in the work. This limitation only applies to works and other subject-matter that had not been registered with the Canadian Intellectual Property Office.

Why register copyright in Canada?

While registration of copyright is optional and does not create substantive rights, it can provide substantial benefits in case of a dispute.

Registration certificate serves as evidence of ownership in the work or other subject-matter so registered. It is a useful addition to the statutory presumption that copyright subsists in the work or other subject-matter and that their respective creators are the owners of copyright. It must be noted that the certificate is not conclusive proof of ownership, it merely strengthens the registrant’s position.

Registration creates a presumption that the infringer was aware of the subsistence of copyright in the work or other subject-matter, and therefore, the provision of the Copyright Act the limits the remedies of the copyright owner to injunction only in cases of innocent infringement no longer applies.

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