Canadian copyright law governs the legally enforceable rights to creative and artistic works under the laws of Canada. Canada passed its first colonial copyright statute in 1832 but was subject to imperial copyright law established by Britain until 1921. Current copyright law is established by the Copyright Act of Canada which was first passed in 1921 and substantially amended in 1988 and 1997. All powers to legislate copyright law are in the jurisdiction of the federal government by virtue of section 91(23) of the Constitution Act 1867.
History
Colonial copyright law
It is unclear to what extent British copyright law, or imperial law, starting with the 1709 Statute of Anne applied to then colonies including Canada. The first Canadian colonial copyright statute was the 1832 Copyright Act, long title “An Act for the Protection of Copy Rights”, passed by the Parliament of the Province of Lower Canada, granting copyright to residence of the Province. The 1832 Copyright Act was short, and declared ambitions to encourage emergence of a literary and artistic nation and to encourage literature, bookshops and the local press. After the Provinces of Upper and Lower Canada (Ontario and Quebec) were reunified to form the Province of Canada, the 1832 Copyright Act was repealed and with minor changes enacted as the 1841 Copyright Act, long title “An Act for the Protection of Copy Right in this Province”.[1]
The 1841 Copyright Act only granted copyright in books, maps, charts, musical compositions, prints, cuts and engravings. Copyright was only awarded if it was registered and a copy of the work deposited in the office of the registrar of the province before publication. The author or creator was required to be resident in the province in order to obtain copyright under the Act. Though the Act was unclear on whether the work needed to have been first published in the Province. The objective of the colonial copyright statutes was to encourage the printing of books in Canada, though this was not made explicit to avoid conflict with imperial copyright law, which was primarily designed to protect English publishers. Britain forcefully demanded guarantees that British and Irish subject were eligible for protection under Canadian colonial copyright law in the same way residence of the Canadian colony were.[2]
One year after Canada passed its colonial law on copyright, the UK Parliament passed a new imperial statute on copyright, the Copyright Act 1842. The statute explicitly applied to “all Parts of the United Kingdom of Great Britain and Ireland, the Islands of Jersey and Guernsey, all Parts of the East and West India, and all the Colonies, Settlements, and Possessions of the Crown which now are or thereafter may be acquired”. Any book published in London would therefore be protected by copyright law in the entire British Empire, including Canada, which was a young British colony.[3] The imperial Copyright Act 1842 had an immediate impact on Canada and became infamous because it effectively prohibited the importation and sale of reprints of any book under British copyright printed in other countries. Previously Canada had mostly imported books from the United States, but it was now unlawful for Canadian merchants to engage in this trade. Instead merchants were required to import books under British copyright from printers in Britain, though British market prices were unaffordable for most residents of Canada. As British publishers systematically refused to license books for printing to Canadian printers, the Canadian Government questioned the responsible self-government arrangement.[4] In a provocative move Canada passed “An Act to extend the Provincial Copyright Act to Persons Resident in the United Kingdom” in 1847, granting British authors protection only if their works had been printed and published in the Province of Canada. The 1841 and 1847 statutes were subject to minor revision in 1859 and the requirement for the works to be printed in Canada, buried in the text, was later noticed and denounced by the imperial British Government.[5]
The British North America Act 1867 became Canada’s first constitution and granted the Federal Government power to legislate on matters such as copyright and patents. In 1868 the Canadian Federal Parliament passed “An Act respecting Copyrights” re-establishing the publication requirements of the 1847 statute, prompting demand from the British Government that Canada should revise its laws so as to respect imperial copyright law.[6] Under imperial copyright London printers had a monopoly and attracted most authors from the colonies to first publish with them because imperial copyright law granted protection in all colonies. London printers refused Canadian printers the licensed to print books first published in London and authors had little incentives to first publish in Canada, as colonial copyright law only granted protection in Canada. The Canadian Federal Government thought to further strengthen the Canadian print industry with a 1872 bill that would have introduced a projected licensing scheme that allowed for a reprinting of books under foreign copyright in exchange for a fixed royalty. The British Government opposed the bill and it never received Royal Assent.[7] In order to encourage the local printing and publishing industry Canada made a number of diplomatic and legislative efforts to limit the effects of the imperial Copyright Act 1842. In a compromise arrangement Canada passed the Copyright Act 1875 granting British authors protection under Canadian copyright law if they reprinted or republished their works in Canada. It received Royal Assent the same year and was subsequently amended in 1889, 1890, 1891, 1895, 1900 and 1906. The requirement of reprint and republication was always maintained. The Copyright Act 1921 eventually removed copyright from control of the UK Parliament.[8]
The first Copyright Act of Canada was passed in 1922 which came into force in 1924. Though Canada was no longer subject to imperial copyright law, it was closely modelled on the UK Copyright Act 1911. Until 1988 the Copyright Act of Canada saw only minor amendments while the Federal Government engaged in a number of studies on copyright reform. New technological developments and the emergence of computers, photocopiers and recording devices led to a recognition that copyright law needed to be updated. Between 1954 and 1960 the Royal Commission on Patents, Copyright, and Industrial Design, known as the Ilsley Commission, published a series of reports. Its brief was "to enquire as to whether federal legislation relating in any way to patents of invention, industrial designs, copyright and trademarks affords reasonable incentive to invention and research, to the development of literary and artistic talents, to creativeness, and to making available to the Canadian public scientific, technical, literary and artistic creations and other adaptations, applications and uses, in a manner and on terms adequately safeguarding the paramount public interest."[9][10]
In 1977 the Canadian department of Consumer and Corporate Affairs published the Keyes-Brunet Report, a working paper with the full title "Copyright in Canada: Proposals for Revision of the Law". In 1984 the Federal Government published "From Gutenberg to Telidon: A White Paper on Copyright" and in 1985 the House of Commons' Standing Committee on Communications and Culture published "A Charter of Rights for Creators - Report of the Subcommittee on the Revision of Copyright".[11]
Reform: Phase one 1988
Eventually a copyright reform process was initiated in two phases: Phase one was started in 1988 and saw several amendments to the original Copyright Act of Canada of 1922. Computer programs were included as works protected under copyright, the extend of moral rights was clarified, the provision for a compulsory license for the reproduction of musical works was removed, new licensing arrangements were established for orphan works in cases where the copyright owner could, and rules were enacted on the formation of copyright collecting societies and their supervision by a reformed Copyright Board of Canada.[12]
Reform: Phase two 1997
Phase two of the reform took place in 1997 and saw the Copyright Act of Canada amended with a new remuneration right for producers and performers of sound recordings when their work was broadcast or publicly performed by radio stations and public places such as bars. A levy was introduced on blank audio tapes used for private copying and exclusive book distributors were granted protection in Canada. New copyright exceptions were introduced for non profit educational institutions, libraries, museums, broadcasters, and people with disability, allowing them to copy copyrighted works in specific circumstances without the permission of the copyright owner or the need to pay royalties. Damages payable for copyright infringement and the power to grant injunctions were increased, and the 1997 reforms introduced a mandatory review of the Copyright Act of Canada.[13]
Bills to amend the Copyright Act
In June 2005, the government introduced Bill C-60 to amend the Copyright Act. The bill was never passed into law as Parliament was dissolved after a motion of non-confidence was passed in November 2005. In Summer 2008, the government introduced Bill C-61 in their continuing effort to update the Copyright Act, with many similarities to the previous Bill C-60 and the American DMCA. The bill dies before it passed into law when the Conservative government called an election in September 2008. On June 2nd, 2010, Bill C-32 was tabled.
Sources of law
Like most other common law countries there are no inherent rights to works, performances, or sound recording at the common law[clarification needed]. Copyright exists solely in statute. According to section 91(23) of the Constitution Act, 1867 the federal government is granted exclusive power to enact laws related to copyright. The evolution of copyright in Canada has been guided by international treaties signed by Canada that try to unify copyright laws across the globe.
Copyright is meant to protect the expression of ideas but never ideas in themselves. Copyright subsists in original literary, dramatic, musical, and artistic work, whether published or unpublished.
Originality
The Act provides protection for all "original literary, dramatic, musical and artistic" works. Close attention has been paid to the use of the word "original". It has been well established that the foremost requirement for the subsistence of copyright is that the work be original.
The CCH Canadian case re-evaluated the meaning of "original" and found that for a work to be original it must be the result of the exercise of "skill and judgment". More specifically: skill, meaning the "use of one's knowledge, developed aptitude or practiced ability in producing work", and judgment, meaning the "use of one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work". Nevertheless, originality does not require any novelty or creativity. It does require intellectual effort beyond mere mechanical exercise.
The determination of originality on the basis presented in CCH Canadian depends on the facts. For a large part, it depends on degree to which the work originated from the author. Many factors are considered, The medium or form used is significant. Whether it comprises elements that are in the public domain or not, whether it the ordering of data or facts, or whether the form is pedestrian or novel. Mere selection is generally not enough. As well, it is significant to consider whether there are any artistic elements to it.
Fixation
Copyright provides the protection of expression of ideas. This entails that there must be a form, or "fixation", to the expression. It is fixation that distinguishes an expression from an idea.
In Canadian Admiral Corp. v. Rediffusion, the court considered fixation: "for copyright to exists in a 'work' it must be expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance." In this case, the court found that there was insufficient fixation in the live broadcast of a sports event. Any sort of broadcast, telecast, or display of a spectacle on its own is not sufficient to be fixed. At the least, it must be simultaneously recorded in some fashion to be fixed.
To the possible exception of choreographed works, there is a requirement that the work be recorded in a relatively permanent form. Typing a note into a computer screen may be sufficiently permanent. Some cases have shown that unstructured speech or other spontaneous or improvised creations, such as a sports game, cannot contain copyright.
Exclusion
Both facts and ideas are by their very nature uncopyrightable. This will often create difficulties when it becomes necessary to separate the idea from the expression as well as in the separation of fact from the arranging and use of those facts. Where the distinction between idea and expression becomes obscured the Courts often take a precautionary view that it cannot be copyrighted so as to avoid preventing others from expressing the same idea.
Minor designs that are largely ornamental or functional are excluded as well. For example, coloured blocks used as tools in an educational program are excluded.
Ownership
The copyright of an artist's work is owned directly by the artist in most cases with the exception of engravings, photographs, portraits, and works created in the course of employment. Furthermore, these rights can be alienated through assignment and licenses.
An artist's moral rights, however, are inalienable and stay with the artist their entire lives. As with copyrights, moral rights are inheritable.
Government works
Section 12 of the Copyright Act reserves copyright for all works produced by the government for a period of 50 years following the end of the calendar year when the work has been performed, unlike the United States, where the government does not hold copyright. In addition, the Copyright Act applies to government works, but "without prejudice to any rights or privileges of the Crown". The exact extent of these reserved rights are not clear, see[14] for more on this.
Music Recordings
The music industry created a loophole in Canadian copyright laws when it asked for a levy on blank audio media. Since 1999, these private copying levies on blank audio recording media (such as audio cassettes, CDs and CD-Rs) have raised millions of dollars for songwriters, recording artists, music publishers and record companies. In exchange, and subject to certain exceptions, the act of copying music onto an audio recording medium for the private use of the person who makes the copy does not constitute copyright infringement.[15] Also, the statutory private copying provision is silent as to whether the person doing the private copying must also be the owner of the music being copied.
Some argue that the private copying levy legalized copying in the digital age, to the consternation of the music industry.[16] However, Canadian courts have not extended the definition of "audio recording medium" to exempt music copied onto computer hard drives, digital audio recorders (such as iPods or MP3 players), or other types of permanently embedded memory.[17]
Foreign works
Section 5 of the Copyright Act applies the act to all for British subjects and residents, as well as citizens, residents, and corporations of Berne convention countries.
Duration
According to s. 6 of the Act the copyright of a work lasts the life of the author plus 50 years from the end of the calendar year of death.[2]
For joint authors, the copyright of a work lasts the life of the author who dies last, plus 50 years from the end of the calendar year of that death.[3]
According to s. 9(2), the duration of foreign works generally follow the Rule of the shorter term except in the case of NAFTA countries (i.e. USA and Mexico). Works from NAFTA countries follow the Canadian duration rule.
Unknown or Anonymous Authors
Where the identity of the author is unknown (if the author is anonymous or pseudonymous) then the copyright lasts for either 50 years from the publication of the work or 75 years from the making of the work, whichever is shorter.[4] However, if author’s identity becomes commonly known during this time, the term provided in section 6 applies.
There are separate provisions for joint authors whose identities are unknown[5], and posthumous works.[6]
Photographs
There is a separate provision for the author of photographs. According to s. 10[7] of the Act, the author of the photograph is the person or corporation who was either 1) the owner of the initial negative or other plate at the time when that negative or other plate was made, or 2) was the owner of the initial photograph at the time when that photograph was made, where there was no negative or other plate. In contemporary terms, this means that the author of a photograph is usually the person who owns the film in the film camera, or whoever owns the digital camera.
Where the author is a person or a corporation whose majority shareholder is the photographer, s. 6 applies, and the term of copyright for the photograph is the life of the author plus 50 years from end of the calendar year of death.
Where the author is a corporation, the term of copyright for the photograph is the making of the initial negative or initial photograph, plus 50 years.
There is also separate provision for the copyright ownership of photographs. In particular, unless a contract exists to the contrary, the copyright of any engraving, photograph or portrait is owned by the person who ordered the work once payment is made. The copyright is owned by the author until payment is made. This only applies to works that were "made for valuable consideration". See s. 13(2)[8] of the Act.
Rights granted
Copyright grants the sole and exclusive right to create and recreate a work whether wholly or substantially. It also includes the sole rights to:
publish the work if unpublished
perform the work in public
to produce, reproduce, perform or publish any translation of the work,
in the case of a dramatic work, to convert it into a novel or other non-dramatic work,
in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise,
in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed,
in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work,
in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,
to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan,
in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program, and
in the case of a musical work, to rent out a sound recording in which the work is embodied,
Copyright, generally, protects against production and reproduction of a work. Infringement is judged by the interpretation of the language of the type of work and the means of reproduction.
Moral rights protect the "integrity" of the work, and the right to be "associated" with the work. Infringement of moral rights happens when the work is "distorted, mutilated or otherwise modified ... to the prejudice of the artist".
In defense to infringement, there are rights to fair dealing, which in Canada are limited to research or private study, criticism or review, or news reporting.
In 2008, Bill C-61 was proposed by Industry Minister Jim Prentice to improve compliance with WIPO treaties. It was heavily criticized and praised by conflicting sides, of being too harsh and setting up "police states", to being needed copyright reform.[19] The bill died on the table due to the September 7, 2008 election call.[20]
In June 2010, federal Industry Minister Tony Clement introduced Bill C-32 to Parliament entitled, An Act to Amend the Copyright Act.[21] While many aspects of the bill have changed from Bill C-61, those portions regarding legal protection of technological protection measures remain fundamentally unchanged. These measures have been criticised by consumer groups, including the Consumers Council of Canada, the Public Interest Advocacy Centre, Option consommateurs and Union des consommateurs;[22] via the Canadian Consumer Initiative, they sent a letter to Heritage MinisterJames Moore, who had stated in the House of Commons that consumer interests were represented by the Canadian Chamber of Commerce, noting that the Canadian Chamber of Commerce "is a business lobby group that in no way represents consumer interests, and in fact opposes the position of consumer groups on copyright policy".[22]
^See both Federal Court of Appeal cases: Canadian Private Copying Collective v. Canadian Storage Media Alliance [2005] 2 F.C.R. 654 and Apple Canada Inc. v. Canadian Private Copying Collective [2008] F.C.J. No. 5.
