Photographs and Canadian Copyright Law
Under the Canadian Copyright Act, photographs are protected in the same manner as other artistic works (such as sculptures, paintings, sketches.) The Canadian Copyright Act defines a copyright-protected photograph to include “photo-lithograph and any work expressed by any process analogous to photography.” This means that photographs made with a negative or without a negative (e.g., Polaroid photographs) are protected by copyright in Canada. And so are photographs you take with your smart phone or with your digital camera. Prior to 1 January 1994 only photographs with a negative were protected under Canadian copyright law.
Like all copyright-protected works in Canada, photographs are protected automatically once they are in a fixed form. A fixed form would be saved on your smart phone or on your camera’s memory card. Chapter 3 of Canadian Copyright Law, Fourth Edition, discusses the notion of automatic copyright protection upon the creation of the work.
Digital photographs are protected under Canadian copyright law.
Registering Copyright in Photographs in Canada
Are you required to register your images with a government office in order to obtain copyright protection in Canada? No, since copyright protection is automatic in Canada in photographs and in all eligible works, there is no need to register your photographs. However, you can register the copyright with the Canadian Copyright Office. Registering your photographs in the Canadian Copyright Office can often make it easier for those who want to use your images to find you and obtain permission to use them.
Photographers who register their works often register several images in one registration application in order to save both administrative time and money. Registration will provide you with some proof that you created the images in question and are the first copyright owner in these photographs. You can register images at any time—but best to do so earlier rather than later as that can help you provide proof of ownership of copyright in the images at the earliest date possible. Detailed information on registering your copyrights with the Canadian Intellectual Property Office is on pages 44 to 48, Canadian Copyright Law, Fourth Edition, in the section entitled: How to Register Copyright with the Canadian Government, Canadian Intellectual Property Office (CIPO).
Learn more about Canadian Copyright Law.
The Role of The Canadian Intellectual Property Office (CIPO)
The Canadian Copyright Office which is part of the Canadian Intellectual Property Office (CIPO) is discussed in various parts of the book Canadian Copyright Law, Fourth Edition (CCL). For example:
- page 20 of CCL discusses responsibility for copyright in Canada and the role of CIPO
- page 44 discusses how to register copyright with the Canadian Government through CIPO
- page 255 examines locating a copyright owner through online and in-person searches in the Canadian Copyrights Database and in-person at CIPO
The Copyright Section
The Canadian Intellectual Property (IP) Office has a comprehensive website for each area of IP in Canada. The site was recently updated and is more visually appealing and much easier to navigate than before.
When you enter the copyright section of the site, there is a slider which provides you with various choices: a guide to Canadian copyright law; a link to search copyright records; and an explanation of Canadian copyright law. You can also easily choose things such as register a copyright, view registration fees, order documents, and transfer copyright ownership. Even more information is set out by several icons: learn; apply; online services; and resources. Many of the links return you to the older website design though it’s possible that these older pages will soon be updated.
Have URL’s Within the CIPO Changed?
Canadian Copyright Law, Fourth Edition, includes several URLs within the CIPO website. I asked @CIPO through Twitter whether the URLs in its new website had changed and the reply was: @copyrightlaws Most of our links haven’t changed. If you encounter issues, let us know here: http://ow.ly/B6aw3. And if you do encounter any changed URLs, please let me know too so I can post them here and share the updates with other readers of Canadian Copyright Law, Fourth Edition. Email Lesley.
A Useful Site for Canadian Copyright Law
This website is very useful as a primary resource for researching Canadian copyright law issues. The Canadian Copyright Act and Copyright Regulations as well as additional copyright information is only a click away once you enter the site. There is also a “What’s new” section which at the time of writing this post says, “There is no recent news at this time.” Though in the same area as the what’s new section is a reminder that says E-filing: save time and money, Register in 5 days! Impressive turn around for copyright registration. View the new CIPO website.
Learn more about Canadian copyright law.
Keep up-to-date on copyright seminars, news and blog posts – subscribe to copyright e-letter.
There are a couple of initiatives by the U.S. Copyright Office that may be of great assistance to Canadians (Americans and others too) who need to locate copyright owners, register copyright- protected works under the U.S. Copyright Office registration system, and understand how the U.S. Copyright Office consistently approaches and interprets the U.S. Copyright Act and the Office’s mandate.
New U.S. Copyright Office Website
The U.S. Copyright Office website has an entire new look. It is much cleaner and easier to navigate. On the home page, you are initially given four choices: register a copyright; record a document; search records; and learn about statutory licensing. As Canadians you are likely entering the U.S. Copyright Office website to register your work or to search the records to locate a copyright holder. Registering a work with the U.S. Copyright Office is described in detail on pages 52-55 of Canadian Copyright Law. This updated site has a tutorial on completing an electronic copyright registration. Another common use of the U.S. Copyright Office site is to search the records to locate a copyright holder and perhaps obtain permission to use a work. A tutorial that details each step of searching the records is also accessible from the home page of the website. There is tons of other useful information so worth taking a look and browsing through the new website.
Compendium of U.S. Copyright Office Practices, Third Edition
On 19 August 2014, Register of Copyrights Maria A. Pallante released a draft of the Compendium of U.S. Copyright Office Practices, Third Edition – a 1,200 page document that in many parts reads as a treatise on U.S. copyright law. The Compendium sets out administrative practices relating to registration and recordation policy. It remains in draft form for 120 days pending final review and implementation. Prior editions of the Compendium were for the most part internally directed and this third edition is a comprehensive overhaul that makes the practices and standards of the Office more accessible and transparent to the public. It addresses basic copyright principles such as standards of copyrightability, joint authorship, work for hire, and routine questions like fees, records retrieval and other procedural issues. The compendium will be of help to Canadians seeking in-depth information on what applications for copyright registration will be accepted by the U.S. Copyright Office, who may file a copyright registration application, examination practises, and copyright office services.
Both the updated U.S. Copyright Office website and the Compendium are helpful resources to add to Chapter 15, An Overview of American Copyright Law, in Canadian Copyright Law.
Learn more about Canadian copyright law.
Two New Copyright Treaties
On December 20, 1996, negotiators from 160 countries reached agreement on two new copyright treaties: the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). These treaties deal with copyright needs in the digital era and changing international copyright norms in light of new technologies. See WIPO.
WIPO Treaties Enter into Force in Canada in August 2014
At the time of writing Canadian Copyright Law, Fourth Edition, Canada had not yet ratified these treaties. See page 64 of Canadian Copyright Law; you can now update this information. On May 13, 2014, the Government of Canada deposited its instrument of ratification of the WCT and the WPPT. Each treaty will enter into force, with respect to Canada, on August 13, 2014.
A copyright compliance policy or copyright guidelines can have many purposes. Purposes include:
- providing information to help determine who owns works created during employment
- explaining the terms and conditions in licenses for using digital content
- establishing a procedure for clearing permissions in copyright-protected works
- providing guidelines on interpreting fair dealing
One way to explain the role of a copyright compliance policy or copyright guidelines is as a summary of copyright management procedures for your organization or institution. Depending on the contents of the policy or guidelines, it can also be an educational tool and serve as reference material on copyright issues relevant to your organization or institution. Another important role of a copyright compliance policy or guidelines is to provide a single, consistent approach to copyright issues.
Although it may initially be read cover-to-cover, a copyright compliance policy or guidelines is more likely to be consulted on an as-needed basis, so a strong index and/or search tool is recommended to ensure its effectiveness. A policy or guidelines should always be “live” and be reviewed and updated periodically to reflect changes in copyright law, technology, organizational policies, and the way in which you use copyright-protected materials in your organization.
What is the purpose of your Copyright Policy or Guidelines?
Do you have a Copyright Compliance Policy or Guidelines? Does it stay true to your purpose(s)? Or are you now articulating your purposes so that you can develop a Policy or Guidelines? Need assistance developing a copyright policy or guidelines? Click here.
What is an Orphan Work?
An orphan work is one in which the copyright owner cannot be identified or located. Many countries are grappling with how to legislatively deal with orphan works. The Canadian Copyright Act has had a provision in its Act since 1988 to allow the Copyright Board of Canada to provide licences for the use of published works where the copyright holder cannot be located. Pages 273 – 278 of the book Canadian Copyright Law discusses how the unlocatable copyright owner provision works, how to apply to obtain a licence to use a work of an unlocatable copyright owner, and examples of licences granted by the Board.
Unlocatable Copyright Owner Licences
In the Copyright Board’s recently issued 2012-13 Annual Report, it is stated that 24 applications for an unlocatable copyright owner licence were filed with the Copyright Board and eight licenses issued in the fiscal year 2012-13. Licences were issued for the following purposes:
- synchronization, reproduction and communication to the public by telecommunication of an excerpt of a song
- reproduction and communication to the public of posters, periodicals and monographs
- the digital reproduction and the communication to the public by telecommunication of two jokes
- the mechanical reproduction and public performance of a musical work
- the reproduction and the republication on hard copy of the text in a book (this was a renewal of a previously granted licence)
- reproduction and communication of a photograph in a documentary film
- the reproduction, the making available and the communication to the public by telecommunication of three paintings
Do you have a work in which you cannot identify or locate the copyright owner? Apply to the Copyright Board of Canada for a licence!
Learn more about Canadian Copyright Law.
Automatic Protection in Canada and the U.S.
Copyright protection in Canada and the U.S. is automatic upon creation of a work in a fixed form. For example, once a poem is on paper, it is protected by copyright. Or once an article is saved on your computer, it is protected by copyright. Registration of the work is not mandatory in either country but there are advantages to registering a work and many Canadian authors and copyright owners register their works with the Canadian Intellectual Property Office (CIPO) and/or the U.S. Copyright Office. (Chapter 4, Canadian Copyright Law, Are Formalities Required to Obtain Copyright Protection?) discusses automatic protection and registration.)
Fees for Copyright Registration
Canadian registration fees: Filing an application for copyright registration for a work or other subject-matter in Canada via the CIPO website is $50 CDN. Filing an application by fax or mail is $65 CDN.
U.S. registration fees: U.S. copyright registration fees are changing on 1 May 2014. The current fee of $35 US for filing a copyright registration online will remain for single authors (not joint authors), single works (not collections) and for works that are not a work made for hire. All other works will cost $55 US to file online. Filing a paper form is currently $65 and this will increase to $85.
On 1 May 2014, you should pencil in the new fees in your copy of Canadian Copyright Law – page 53 is where you’ll see the fees. Click for a full list of the new copyright office fees.
The following table compares copyright registration in Canada and the U.S. as of 1 May 2014.
|U.S. Copyright Office
$35 or $55 US
Thanks Wiley for creating this fabulous bookmark to distribute at conferences, courses and book signings.
The amount of blogs on Canadian copyright law have increased both in quantity and quality over the past few years and most of us have our favourites. However, before examining interpretations and opinions on Canadian copyright law, I recommend that you first read the Copyright Act itself and some of the many important court cases intrepreting Canadian copyright law.
Below are primary resources on Canadian copyright law that were helpful in writing Canadian Copyright Law, Fourth Edition as well as posts on this blog related to these resources. Use this list as a starting point and add further resources that engage you.
Canadian Copyright Act
The Canadian Copyright Act and Copyright Regulations are primary sources for Canadian copyright law.
Canadian Government Sites Relating to Canadian Copyright Law
Heritage Canada has information on the history of Canadian copyright law, publications, a glossary and more. It also has a microsite on the Copyright Modernization Act (the most recent amendments to the Canadian Copyright Act.)
At Copyright Board of Canada you can obtain a licence to use works of unlocatable copyright owners, a list of Canadian copyright collectives and more.
The government office responsible for copyright registrations is Canadian Intellectual Property Office (CIPO). CIPO also provides general information on Canadian copyright law. Also see blog post: How to Obtain Permission to Use Canadian Government Content.
Supreme Court of Canada Copyright Cases
Supreme Court of Canada (SCC) cases: The following list shares some important Supreme Court of Canada cases interpreting Canadian copyright law.
- Cinar Corporation v. Robinson, 2013 SCC 73, Date: 20131223 (See blog post: Copyright in the Supreme Court of Canada in December 2013: Cinar v. Robinson.)
- Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, Date: 20120712
- CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, Date: 20040304
- Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, Date: 20040630
- Robertson v. Thomson Corp., 2006 SCC 43, Date 20061012
- Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34, Date: 20020328
World Intellectual Property Organization
The World Intellectual Property Organization (WIPO) administers several copyright treaties to which Canada belongs.
Canadian Copyright Law Questions
Copyright Qs & As on Canadian Copyright Law. This is a forum where you can see various questions and answers and post your own questions.
Many people do not realize that the familiar copyright symbol © is not mandatory under Canadian copyright law. Why then do we see that popular copyright symbol in every published book and on all sorts of copyright-protected materials?
The Copyright Symbol ©
The copyright symbol is a reminder to the world at large that copyright exists in a work. You place the symbol on your work – it becomes obvious to people that that article, blog post or image is protected by copyright. If you ever end up suing a possible copyright infringer for using your work without your permission, the copyright symbol provides evidence that the alleged infringer should have known that copyright existed in your work.
Locating a Copyright Owner
Using a copyright symbol may also help people who want to use your work to locate you and ask you for permission to use your work. Including your name is part of marking your copyright-protected works with the copyright symbol.
Suing for Copyright Infringement in the United States
Using the copyright symbol is also important if you are suing someone for copyright infringement in the United States since the U.S. Copyright Act precludes an alleged infringer from submitting that he did not know that copyright existed in a work where a proper copyright notice had been placed on the work.
Should You Use the Copyright Symbol?
Bottom line: although not mandatory under Canadian copyright law, you should consider placing the symbol along with year of first publication of the work and the name of the copyright owner on all content. Put it in a visible spot that is sure to alert the user. One format for this copyright marking is:
© 2014 Lesley Ellen Harris
You can go further and add a hyperlink so people who want to use your work can easily contact you. You can also add any wording to indicate any free uses of your content – uses that you do not necessarily want to be emailed about by persons requesting permissions.
For further information on using the copyright symbol in Canada, see pages 36 – 38, Canadian Copyright Law, Fourth Edition.
The International Copyright Symbol post sets out information on the copyright symbol symbol in Canada and internationally.