- Crown copyright
- Works in the public domain
- Moral rights
- Infringement of copyright
Crown copyright is governed by Section 12 of the Copyright Act (R.S.C., 1985, c. C-42), which covers all works that are “prepared or published by or under the direction or control of Her Majesty or any government department.”
Generally speaking, copyright provides authors / creators with the exclusive legal right to reproduce, publish and sell a work. In Canada, copyright comes into existence when a work is created. Under Canadian copyright legislation, rights of the author/creator are protected whether or not they have marked the work with the standard copyright symbol "©".
The author/creator may produce a copyright protectable work by writing a book, taking a photograph, coding a computer program, producing audiovisual materials, composing music, designing maps, or drawing plans or illustrations in either paper or digital format.
Generally speaking, copyright protectable works are divided into seven categories.
Literary works (Covers works in paper and digital formats)
Memoranda, email messages, journals, books, magazines, text books, talking books (the underlying work, not the recorded voice), periodicals, monographs, government records and reports, pamphlets, newspapers, poetry, genealogical materials, letters, statistics, computer software, statutes, law reports, judicial decisions, forms, court records, databases, published and unpublished research papers, brokers' reports, stock reports, annual reports, manuscripts, microforms (print on plastic), theses, conference proceedings, industry standards, Braille, postings to Internet newsgroups, large print materials, compilations of literary works on CD-ROMs and databases.
Video recordings, documentaries, films, radio, television and cable programs, plays, choreography, CD-ROMs containing compilations of dramatic works.
Patterns, art slides, maps, atlases, paintings, architectural drawings, plans, stage and costume designs, digital images, drawings, photographs, charts, mosaics, art prints, compilations of artistic works on CD-ROMs and on Websites.
Sheet music, songs with or without words, audiocassettes, audio CDs.
CDs, talking books, oral history tapes, vinyl albums, phonographs, audio books, audio cassettes, papers recorded at seminars, audio tapes of speeches and lectures, sound effects, spoken word recordings, language cassettes for ESL, compilations of sound recordings on CDs.
Recorded performances of actors, authors, singers, musicians and dancers on tapes, cassettes, CDs, CD-ROMs, video recordings and films, compilations of performances by performers on records, CDs and in audiovisual formats.
Television and radio signals
As a general rule, the author/creator is the first owner of copyright. Where permission to use copyrighted material is needed, it is only the author/creator who can permit usage of their works. The author/creator of a work is furthermore, the only party that can sell, license or give away the copyright. The author/creator can also transfer their copyright either entirely or in part.
Although an author/creator is the first owner of copyright in a work, there are exceptions.
Government of Canada works
Unless otherwise specified, copyright in works prepared by or under the direction or control of the Government of Canada (Crown) is owned by the Crown.
Works created by employees
Where an author/creator is employed, and the work is made as part of that employment, the employer instead of the author/creator is the first owner of the copyright.
Copyright in a sound recording belongs to the maker of the recording instead of the author/creator. A maker is the person who undertakes the arrangements necessary for the first fixation of the sound.
Performances by performers
Copyright in the performances of actors, singers, dancers and musicians belong to the performer.
Copyright in a signal emitted by a broadcaster belongs to the broadcaster of the signal.
As the result of an Order In Council passed in January of 1997, there is no requirement to seek permission to reproduce primary legal information of the Government of Canada and there are no applicable fees. The Reproduction of Federal Law Order applies only to Government of Canada legislation, statutes, regulations, court decisions and tribunal decisions and authorizes anyone, unless otherwise specified, to copy the aforementioned material without the usual restrictions that govern Crown copyright protected materials, provided that one is careful to ensure the accuracy of the materials reproduced and that the reproduction is not represented as an official version.
The Reproduction of Federal Law Order does not apply to any materials that have been copyright protected privately or separately by a third party which happens to have been included with, added to, or referred to in the Government of Canada legislation, statute, regulation and/or decision. An example of this would extend to the reproduction of value-added features such as the captions of headnotes, footnotes, summaries and additional comments which are added to decisions handed down by federally constituted courts and tribunals. These value-added features are not included in the Reproduction of Federal Law Order and therefore, reproduction is prohibited without having secured written authorization.
There is a difference between owning a physical object and owning the copyright associated with the physical object. Ownership of a physical object does not include ownership of the associated copyright. For example, the purchase of a magazine, book, photograph, map, film, or sound recording does not mean that you also own the copyright associated with any of these works. Therefore, in order to use the physical object outside of its intended purpose, you are obliged under the Copyright Act to obtain written permission from the author/creator. Failure to do so could be deemed an infringement of copyright.
As per the Copyright Act, copyright in a work exists for the life of the author/creator, the remainder of the calendar year in which the author/creator dies, plus fifty years after the end of that calendar year.
For Crown copyrighted works, there is a slight difference. Section 12 of the Copyright Act stipulates that the term of copyright is the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year.
Crown copyright protected works should be identified as follows:
© Her Majesty the Queen in Right of Canada, as represented by the Minister of National Defence (year of publication)
Public domain refers to works that belong to the public. Works in the public domain can be used free of charge and do not require written permission from the author/creator.
Works can be in the public domain for a variety of reasons. For example: (1) the term of the copyright has expired; (2) the work was not eligible for copyright protection in the first place; or (3) the copyright owner has authorized the public to use the work without permission or payment.
Some examples of works in the public domain are explained below:
To be protected, a work must be something substantial. Sometimes an original and distinctive title can be protected but for the most part they do not meet the originality test established in the jurisprudence. If it were otherwise, libraries, archives and similar institutions would arguably require a license from every author/ publisher to publish their indexing systems containing this information.
Copyright protects the expression of an idea but does not extend to the idea itself. Until an idea is expressed in a fixed form (i.e. paper, electronic or digital media), there is no copyright protection. However, copyright extends beyond literal copying and may encompass certain intangible aspects of a work. More specifically, as defined in case law, works can be non-literally infringed through latent similarities.
It is the expression of facts that is protected by copyright, not the facts themselves. For example, the facts in a magazine article are in the public domain. Anyone can use those facts as long as they do not copy the way the author of the article has expressed them. As long as you use your own words, you will not infringe copyright.
When the term of copyright protection ends or expires, works fall into the public domain. A work in the public domain is free for everyone to use without permission or payment of royalties. In Canada, you can even modify public domain works without permission.
There are provisions in the Copyright Act (R.S.C., Chapter C-42, Sections 14.1 and 17.1), which set out the moral rights of an author/creator and performer respectively. Moral rights are personal to an author/creator or performer regardless of who owns copyright. Moral rights cannot be assigned but they can be waived.
Moral rights exist for the same period of time as the copyright in a work. Moral rights are generally meant to include the following:
This right includes the right to claim authorship, the right to remain anonymous, or the right to use a pseudonym or pen name.
In the case of a work being adapted, modified or translated, the author/creator or performer’s right of integrity must be respected. An author/creator or performer’s right to the integrity of their work is violated if a third party distorts, mutilates or modifies the work in a manner that is prejudicial to the honor or reputation of the author/creator or performer.
An author/creator or performer has the right to prevent anyone from using their work in association with a product, service, cause, or institution.
Infringement relates to a breach or violation of the rights of the copyright owner. There are two kinds of infringements: direct or primary infringement; and indirect or secondary infringement.
Direct or primary infringement is where a person, without permission, does something only the copyright owner has the right to do or authorize. For example, only the copyright owner has the right to make a copy or authorize the making of a copy. The making of a copy is direct infringement unless permission has been obtained or an exception applies.
A person is an indirect or secondary infringer where they know or should have known that a work either: (a) infringes copyright; or (b) would infringe copyright had it been made in Canada (hypothetical infringement test) and, without the consent of the copyright owner does anything set out in section 27(2) of the Copyright Act. Indirect infringement refers to persons who deal with infringing copies, or who, without legal authority, permit a public performance of a work. These provisions usually concern commercial dealings through sales of copies, commercial distribution or trade.
As detailed in the Copyright Act, the violation of copyrights can have civil and/or criminal implications. More specifically, a civil court deals with the consequences of infringing the copyright and/or moral rights of a copyright protected work, while a criminal court deals with the illegal use of a copyright protected work.
For example, a civil court may decide that damages be paid to the copyright owner as compensation for the harm caused by the infringement, along with part of the profits the infringer has made through their unauthorized use of their copyright protected work. A damage award is often accompanied by an injunction to prevent or stop future infringing activity. Additionally, the court can order that all infringing copies become the property of the copyright owner.
A unique feature of the civil remedy system defined in the Copyright Act is the ability of the copyright owner to elect, instead of damages and profits, an award of statutory damages for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally. For example, the court may award a sum of not less than $100 and not more than $5,000, with respect to all infringements involved in the proceedings for all works or other subject-matter, if the infringements are for non-commercial purposes. Alternately, the court may award a sum of not less than $500 and not more than $20,000, with respect to all infringements involved in the proceedings for each work or other subject-matter, if the infringements are for commercial purposes. Infringement of the Copyright Act can also have criminal consequences. The sanctions in the Copyright Act involve fines and possible imprisonment. For example, on summary conviction, the court can impose a fine not exceeding twenty-five thousand dollars or imprisonment for a term not exceeding six months, or both. Alternately, upon conviction on indictment, the court can impose a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years, or both. The criminal sections in the Copyright Act are traditionally used to deal with commercial piracy. Commercial piracy includes, for example, the making of unauthorized copies of DVDs, video games, compact discs, computer programs, or music in order to rent or sell them.
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