Canadian Copyright Law Principles

CCM 201

Instructor: Lesley Ellen Harris, Copyrightlaws.com

SLA Click University

Certificate in Copyright Management: Principles & Issues

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POLL

• How would you rate your knowledge of Canadian copyright law?– Minimal– Medium– High

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Miriam Webster’s Online Dictionary

• Copyright Pronunciation: \-rīt\

• Function: noun

• Date: 1735

• : the exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something (as a literary, musical, or artistic work)

• http://www.m-w.com/dictionary/copyright

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Black’s Law Dictionary, 5th ed.

• Copyright. The right of literary property as recognized and sanctioned by positive law. An intangible, incorporeal right granted by statue to the author or originator of certain literary or artistic productions, whereby he is invested, for a limited period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them.

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Canadian Copyright Act

• Copyright means

– “the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever…”

What does copyright law mean to you?

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CCM 201

• Primer on Canadian copyright law

• Other CCM courses deal with– digital issues; special library copyright

issues; global copyright issues

• Putting your knowledge to work– managing copyright and educating others

about copyright

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Copyright Background

• Federal legislation

• Same Act since 1924, subject to amendments

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Changes

• 1988: protection of computer software, right to exhibit an artistic work, collective admin of copyright

• 1997: special provisions for libraries, archives and museums

• 1989 (FTA), 1994 (NAFTA), 1996 (TRIPs)

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Canadian Copyright Law

• Copyright Act

• Policy behind provisions

• Court Cases

• International treaties and bilateral agreements

• Copyright uses are more global now than ever

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Canadian Copyright Law

• Different than U.S. copyright law

• Based on same general principles from Berne Convention

• Some odd situations due to differences

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Automatic

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Criteria for Copyright Protection

• Originality

• Fixation

• Nationality of creator and place of publication

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Originality

• The work must:– originate with the author– not be a copy of another work– must be from independent, creative effort

rather than a mechanical arrangement– author must use skill, experience, labour,

taste, discretion, selection, judgement, personal effort, knowledge, ability, reflection, imagination

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Fixation

• Be “expressed in some material form, capable of identification and having a more or less permanent endurance.”– handwritten letter– print book– e-document saved on a hard drive or disk

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What’s Not Fixed?

• Lectures, speeches, sermons (if not previously written down)

• Improvised comedy skit or jam session

• Image or text on a computer screen (which has not been saved)

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Nationality and Place of Publication

• Author must be a citizen or resident of Canada or another treaty country

• Berne Treaty countries at: www.wipo.org

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Not Necessary for Protection

• Publication of a work

• Copyright notice

• Registration with Canadian Copyright Office

• (more on notice and reg’n later…)

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Categories of Protected Works

• Copyright subsists

– “in every literary, dramatic, musical and artistic work”

– sound recordings, a-v works– performers’ performances

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Literary Works

• Books

• Periodicals

• Inter-office memo

• Computer software

• Fiction

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Dramatic Work

• Play

• Fixed choreographic work

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Musical Work

• A composition or song

• Music + words

• Not a CD containing the music

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Artistic Works

• Photographs

• Original art and art reproductions

• Maps, charts, drawings

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Collective Work

• A collective work is “any work written in distinct parts by different authors, or in which works or parts of works of different authors are incorporated”

• Encyclopedia, dictionary, newspaper

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Compilations

• A compilation is “a work resulting from the selection or arrangement of literary, dramatic, musical or artistic works or parts thereof, or a work resulting from the selection or arrangement of data”

• Encyclopedia, Web site, DVD

• “Exercise of skill and judgement”

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Federal Government Materials

• Called Crown works

• Federal, provincial and territorial Crown works are protected by copyright

• Federal legislation, court decisions, etc. may be copied without permission or fees

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Canada-U.S. Oddity

• US government works are not protected by copyright

• Cdn government works are protected

• If using a US government work in Canada, you need permission -- but you do not need permission to use the same work in the US

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Questions?

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How to Protect Works

• Do nothing

• Automatic protection

• Registration– voluntary– registration with Canadian and/or US

Copyright Office

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Why Register?

• Incentives:– reg’n is a public record of your copyright

claim– reg’n is necessary before commencing a

law suit– reg’n will assume you are the copyright

owner (and other side has to prove othewise)

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Copyright Notice

• Not mandatory• Universal symbol ©• Symbol, Copyright Owner, Year of 1st

Publication

• © Lesley Ellen Harris 2010

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Why Use ©?

• Reminder that copyright exists in the work

• Helps people locate the copyright owner of the work

• Recommended

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Who Owns a Work?

• Author = First owner

• Author = person who “fixes” the work

• Only author can authorize uses of her works

• Author may assign her rights

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Employment Works

• Exception to author as first owner rule– works created in the course of employment

belong to employer– independent consultants own works unless

agreement to the contrary

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Employees

• Question of fact:– created at work?– part of work duties?– created on employer’s equipment?– employer provide benefits and withhold

taxes?– Not always clear– Best to have written agreement in advance

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Canada-US Comparison

• Canada: Employer owns employees works but employee remains author

• US: Under work for hire provision, employer is the “author” and not just the owner of the work

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Length of Copyright

• Life plus 50 years (calendar year)

• Based on life of author, not owner

• Employer owned - based on life of author

• Different durations in different countries

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Canada-US Comparison

• Canada: life + 50

• US: life + 70

• Canadians may need to clear rights for 70 years if using a work online, even though duration is only life + 50

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Public Domain

• No copyright

• Expiration of copyright

• Free to use and adapt in any manner

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Rights

• Exclusive bundle of rights

• Right of reproduction– photocopy, scan– applies to copying an entire work or a

“substantial part”• quantity copied• quality copied

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Performance Right

• Right of public performance– all music we hear– any performance in a non-domestic setting

• reading a poem at a rally• playing music on a radio in a restaurant

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Other Rights

• Right to first publish a work and make it available to the public

• Right to adapt and translate a work

• Right to transmit a work via cable, satellite and telephone wires

• Right to authorize any of the rights

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Moral Rights

• Applies to all works– name on work, or remain anonymous– prevent works from being modified– use of work in association with a service,

cause, etc.

• Duration based on life of author

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Canada-US Comparison

• Canada: moral rights apply to all works

• US: moral rights only apply to works of fine art

• If using a work in Canada, may need to clear moral rights in a work in which moral rights does not exist in the US

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Limitations on Rights

• Exclusive rights but subject to limitations– fair dealing– specific exceptions

• for libraries• general exceptions

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Fair Dealing

• Is a defense to a claim of copyright infringement

• Is intentionally ambiguous

• Is often misunderstood

• Ultimately up to a court of law to decide

• Set parameters of fair dealing in a written Copyright Policy

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Reviewing Fair Dealing

• Purpose must be: research, private study, criticism, review or news reporting

• Is a substantial part of the work being copied? Consider quantity and quality.

• Could that copying be considered fair?

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Is the copying fair?

• How much has been copied?

• Nature of work copied

• Competition between original and copy

• How the copy is used

• Value of the copy

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Exceptions

• Fair dealing applies to all

• Special provisions for libraries, archives and museums– for non-profit libraries– management and maintenance– single copy– ILL

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Exploitation of Rights

• Author/owner has control of rights

• Right to authorize rights may license or assign– entire work or partial work– all rights or particular rights– divide geographically– time

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Copyright Collectives

• One stop shopping

• Small uses– photocopying– some digital uses– public performance of music

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Infringement

• Using a work without permission

• An exception does not apply

• Even if no money is made

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Remedies

• Injunction

• Damages and profits

• Criminal remedies– commercial piracy

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Copyright Reform

• The law changes

• New technology; new application of law

• Bills and amendments to Copyright Act

• Court cases

• General news– supplementary readings

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Questions?