What is a copyright?

Copyright means the exclusive right to copy an original literary, dramatic, musical or artistic work. It also protects performers' performances, sound recordings, broadcasts and computer programs. In addition to preventing outright copying, the protection also prevents unauthorized public performance, publishing, translation, conversion, adaptation, recording or broadcasting of the work or any substantial part of it.

What can be protected

Copyright applies to original literary, dramatic, musical, and artistic works, whatever the mode or form of expression. To be original, the work must be the product of the author's skill and labour and must not be copied from another's work. The originality requirement does not mean that the work must be the product of genius or have a high degree of creative skill or have any artistic merit. Thus, maps or engineering drawings as well as books, computer programs, plays, songs, paintings, photographs, etc. are all proper subject matter for copyright.

What cannot be protected

Copyright does not protect ideas or concepts. Only a specific expression of an idea or concept can be protected. For example, the author of a book on the history of Vancouver would have copyright in that specific book, but could not prevent publication of another book on the same topic. The copyright only prevents copying of the way in which the first book expresses the topic. Subsequent authors must cover the topic in their own words. Similarly, anyone may photograph or paint a picture of Niagara Falls, Lake Louise or the Empress Hotel, etc., but must not copy someone else's photograph or painting of those famous sites. (Ideas or concepts may be subject to patent protection. Please refer to our "Patents For Inventions" brochure for further details.)

Copyright does not apply to transient occurrences such as sporting events, although a film, videotape or broadcast of the event would be protected.

Copyright does not protect titles, names, slogans, or other short word combinations. These may however be subject to trademark protection. Please refer to our "Trademarks" brochure for further details.

Copyright does not protect features of shape, configuration, patterning or ornamentation which are applied to useful mass-produced articles. Such features may however be subject to industrial design or design patent protection. Please refer to our "Industrial Design Registrations" brochure for further details.

Duration

In most cases, copyright lasts for the lifetime of the author plus 50 years from the end of the calendar year of his/her death. For works of joint authorship, the 50 year period runs from the end of the year of death of the author who dies last. For records, tapes, photographs (where the original negative was owned by a corporation not controlled by the photographer) and similar manufactured devices embodying a copyright work, copyright lasts for 50 years from the end of the year in which the original master or negative is made.

How is copyright protection acquired?

In Canada, copyright protection arises automatically for works which are capable of being protected by copyright, provided that the work is original and:

• the author was a citizen of Canada or a qualifying foreign country at the time the work was created; or,
• if the work has been published, the first publication occurred in Canada or in a qualifying foreign country. Most industrialized countries are qualifying foreign countries.

Who owns copyright?

There are a number of exceptions, but in general:

• Initially, the author of a work owns the copyright in that work.
• If the work is an engraving, photograph or portrait and the original was ordered and paid for by some other person, then that other person owns the copyright in that work.
• If the author made the work in the course of his/her employment then the author's employer owns the copyright in that work.

Can ownership of copyright be transferred?

Yes. The owner of the copyright in a work may assign all or part of the copyright to another party or parties. The assignment must be in writing, signed by the owner. Even after assigning copyright, the author of the work can still claim authorship, restrain modification of the work in certain circumstances, and prevent the work from being used to endorse commercial products, unless such rights are waived. Copyright is personal property and passes to the author's estate on death, provided that the author retained ownership of copyright at the time of his/her death.

Stephen King owns his words, not his books

Ownership of copyright is not equivalent to ownership of the physical object(s) embodying the copyrighted work. For example, the famous author Stephen King does not own each of the many published copies of the books he has authored. However, Mr. King is the initial owner of the copyright in the words expressed in the books he has authored.

Is it necessary to register copyright?

No. Copyright protection arises automatically in Canada. However, registration of copyright is desirable if a dispute appears likely, or if some formal documentary certification of title is desired or required. Copyright protection is similarly available without registration in the United States and in many other countries.

Advantages of registration

• A certificate of Canadian copyright registration confers on the registered owner the legal presumption that copyright subsists in the work and that the registrant is the owner of the copyright.
• A copyright registration can be useful in negotiations involving sale or licensing of rights in the copyrighted work.
• The copyright registration remains of record and available for public inspection at the Copyright Office.
• If a defendant in a copyright infringement action proves that he was not aware, and had no reasonable grounds for suspecting that copyright subsisted in the work, then the plaintiff is entitled only to an injunction and not to damages. However, if copyright in the work was registered at the time of the infringement, then this defence is not available to the infringer.

The © notice is important

You have probably seen the Universal Copyright Convention notice which appears on copies of a published work. For example:

© 2004, John Smith

where 2004 is the year of first publication of the work and John Smith is the name of the copyright owner (as discussed above, the owner is not necessarily the author of the work). There is no legal significance to this notice in Canada. It does not indicate that the copyright is registered, but it does serve to notify the reader of the existence of copyright.

Information we require to register copyright

• the full name and address of the copyright owner;
• the jurisdiction of incorporation, if the applicant is a corporation;
• complete information on how ownership of copyright was acquired, if the copyright owner is not the author of the work;
• the full name, address, and citizenship of each author;
• the title of the work;
• the type of work (i.e. artistic, literary, musical, dramatic, or any combination, as the case may be); and,
• the date and place of first publication of the work (i.e., the date and place at which copies of the work were first distributed to the public), or a statement that the work has not been published.

A specimen of the work is not required and will not be accepted by the Canadian Copyright Office. However, it is highly desirable to retain an exact specimen of the version of the work in which copyright is registered, in case a question arises as to the nature of that work. In the United States, a complete copy of the work must be submitted with the copyright application for retention by the United States Copyright Office. Exceptions apply to some works, such as computer software.

What does registration cost?

It typically costs about CA $450 to register copyright in Canada in a single work, including the government fees and our service charges, plus applicable taxes.

The National Library Act

The National Library Act requires that two copies of any new book published in Canada and one copy of any sound recording manufactured in Canada and having some Canadian content be sent to the National Library of Canada in Ottawa within one week of publication.

For more information contact (Oyen Wiggs Green & Mutala LLP)