Category Archives: Canadian Copyright Law Blog

copyright, WIPO, Marrakesh Treaty

Canada Joins the Marrakesh Treaty

In September 2016, we see the first World Intellectual Property Organization (WIPO) treaty targeting those who use content, the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (Marrakesh Treaty or Marrakesh or MVT). Marrakesh becomes effective 30 September 2016. The treaty sets out limitations and exceptions for countries to include in their domestic copyright laws to allow the reproduction, distribution and availability of published works in accessible formats and to permit those works to be exchanged across borders. Like all WIPO treaties, Marrakesh requires ratification by 20 states to take effect. Canada recently adhered to Marrakesh as the 20th country.

International Copyright Law

 
June 2013 marked a milestone in international copyright law and in the role of the World Intellectual Property Organization (WIPO) with the finalization of a new treaty: the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (Marrakesh Treaty or Marrakesh or MVT).

 
One unique element of the Treaty is that it is the first WIPO copyright treaty devoted solely to copyright limitations or exceptions as opposed to rights for creators of copyright-protected works, performers and sound recording producers. Limitations or exceptions limit the exclusive rights of creators and allow consumers to use protected content without permission from creators. More than 600 negotiators from WIPO’s then-186 member countries met in June 2013 to finalize this historical Treaty. (WIPO currently has 188 member states.)

 
WIPO Copyright Treaties Set Minimum Standards

 
Similar to all WIPO treaties, the Marrakesh Treaty does not set out the law as it applies to works for the blind, visually impaired or otherwise print disabled. Rather, it sets out minimum standards that Treaty member-countries must adhere to and include in their own domestic copyright laws. The Treaty applies to all literary and artistic works (including text, notation and related illustrations) whether or not the works are published or otherwise made publicly available in any media. It is understood that this includes these works when they are in an audio form; for example, as audiobooks.

 
Fifty-one countries signed the Marrakesh Treaty; however the Treaty becomes effective only once twenty countries have ratified it. In order to ratify the Treaty, the ratifying country must have in its own copyright legislation the minimum standards that are in the Treaty. Once a country has ratified the Treaty, it is said to be a member of the Treaty.
Current Members of the Marrakesh Treaty.

 
The first 20 countries to ratify Marrakesh are (in alphabetical order):
Argentina
Australia
Brazil
Canada
Chile
Ecuador
El Salvador
Guatemala
India
Israel
Mali
Mexico
Mongolia
North Korea
Paraguay
Peru
Singapore
South Korea
United Arab Emirates
Uruguay

 

National Law Exceptions
Ratifying countries to Mararakesh must have a provision in their copyright statutes that sets out a limitation or exception for accessible format copies. The provision is an exception to the right of reproduction, the right of distribution, and the right of making available to the public to allow for the availability of works in accessible format copies for beneficiary persons. The provision should allow any necessary changes to the work required to make it accessible in the alternative format. Ratifying states may go a step further and extend this provision to the right of public performance.

 
As is the case with other copyright treaties, any limitations or exceptions provided for in domestic legislation must meet the following test as set out in Article 11 of the Treaty:
“…a Contracting Party may permit the reproduction of works in certain special cases provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”

It is up to each Treaty member country to interpret this test for any limitation or exception.

Duration of copyright protection in Canada

What is the Duration of Copyright Protection in Canada?

The Duration of Copyright in Canada

The Copyright Act provides the general rule for the length of copyright protection for published works as “the life of the author, the remainder of the calendar year in which the author dies, and a period of fifty years following the end of that calendar year.”  Under this life-plus-fifty rule, an author has copyright in a work he or she creates throughout his or her lifetime, and his or her heirs or assignees enjoy copyright for a period of fifty years until the calendar year end after the author’s death.

Note that the duration of copyright in Canada is determined by the life of the author, and not by the life of the owner of copyright.  So if an author sells his copyright and assigns the rights in his work to another person or company, the duration of copyright is still calculated based on the life of the author – and not the new owner. This is also true where works made during the course of employment grant copyright to someone other than the author of the work – copyright is determined based on the life of the author. Where duration is tied to the life of the author, the date when the work was created or first published is irrelevant with respect to the term of copyright protection.

Calculation of the duration of copyright is based on the calendar year plus fifty years, as opposed to the actual date of the author’s death.  For instance, if a writer died on March 1, 1980, copyright in his or her books expires on December 31, 2030.  In fact, most creations of the same author (unless any creations are subject to a specific provision other than the general rule of copyright) will be protected for the same amount of time.

There are various exceptions to the above general rule of life-plus-fifty protection. For example, Crown or government works in Canada are protected until published and for an additional fifty years from the date of publication. A complete explanation of the duration of copyright protection in Canada and exceptions to the life-plus-fifty rule are in Chapter 8, Canadian Copyright Law, Fourth Edition.

Duration of Moral Rights Protection in Canada

The Copyright Act specifically states that moral rights last for the same term as the copyright in a work. So, moral rights endure for the life of the author plus fifty years from the calendar year end of the author’s death.  This term allows heirs to sue on behalf of a deceased author where it seems that a modification to a work resulted in prejudice to the author’s honour or reputation, or to protect any other of the moral rights.

Has Copyright Duration in Canada Recently Been Extended?

Effective 23 June 2015, Canada extended the protection of copyright in specific works only – in performances and sound recordings. The duration of copyright protection in performances and sound recordings is now 70 years after the release date of the sound recording. See Canada Extends Copyright Protection in Sound Recordings.

What is a Public Domain Work in Canada?

Once copyright has expired in a work, the work is said to be in the “public domain.”  The work is no longer protected by copyright and can be used freely, without obtaining permission from or compensating, the copyright owner.  For example, works of Mozart and Shakespeare are in the public domain and can be copied freely (provided the works are not adaptations).

In Canada, the duration of copyright cannot be extended or renewed.

Once copyright expires, moral rights also expire, and a work may be freely adapted and used without the author’s name on it. In some countries, moral rights are in perpetuity and exist even after copyright in a work expires.

Learn more about Canadian copyright law.

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Copyright Cases in 2014 – Canada

Canadian Copyright Law Court Cases in 2014

Those following Canadian copyright law in the courts will likely always remember 2012 as an important year in copyright cases when five different cases were decided by the Supreme Court of Canada. Of course, every year is different when it comes to copyright law in the courts. Below are three summaries of court cases on Canadian copyright law in 2014.

2014: The year in review for Canadian copyright law, by Gowlings’ lawyers Kevin Sartorio and Toba Cooper

LSUC: The year in review in copyright (2014) by McCarthy Tétrault lawyer Barry Sookman

IP Year in Review – 2014 – The Perpetual Motion of IP Law by IP Osgoode’s Giuseppina D’Agostino

And for an international perspective on copyright cases in 2014, see:

2014 – The Copyright Year by The 1709 Blog

 

New Copyright Border Regime in Canada

New Copyright Border Regime Now in Effect

A new copyright border regime is now in effect in Canada. Border remedies allow the detention (at the border) of allegedly infringing or pirated copyright materials from being imported into Canada. Until January 1, 2015 under the old copyright border regime, a copyright owner could only get Canadian Customs officers at the border to detain suspected infringing copies of works if the copyright owner or exclusive licensee had a court order from the Federal Court of Canada or from a superior court of law in one of the provinces. Details of border remedies and how to obtain a court order are set out on pages 226 – 228 of Canadian Copyright Law, Fourth Edition. The border remedies set out in the Copyright Act are in addition to any other rights a copyright owner may have under the Customs Act.

New Canadian copyright border enforcement remedies

Canada’s Combating Counterfeit Products Act

On 9 December 2014, Canada’s Combating Counterfeit Products Act passed and received Royal Assent. The sections of the Act on Canada’s new border enforcement regime came into force on 1 January 2015. The Act amends the Trade-Marks Act and the Copyright Act and this blog post focusses on the changes to the Copyright Act. In terms of copyright, the changes will help copyright owners combat the importation and distribution of unauthorized goods in Canada. One of the explicit border measures now include rights holders being able to “request for assistance” (RFA)  to the Canadian Border Services Agency (CBSA) Intellectual Property Rights Program to detain unauthorized goods. The copyright works in question do not have to be registered with the Canadian Intellectual Property Office. In addition, the CBSA is now able to send samples and information to rights holders about the detained goods, as well as information about the identity of the importer, if a request for assistance has been filed. It will no longer be necessary to obtain a court order and have full knowledge of the particulars of the incoming unauthorized goods. Click for form BSF738 – Request for Assistance.

There is no fee to file an RFA however rights holders are liable for costs related to storage, handling and destruction of any detained goods in specified circumstances, and must begin a civl action within 10 days of any notice of detention (extendable by 10 days) or the goods will be released.

Canada Gazette

For further information, see the Explanatory Note by the Government of Canada in the Canada Gazette on 31 December 2014 fixing 1 January 2015 as the day on which certain provisions of the Combating Counterfeit Products Act come into force.

Learn more about Canadian Copyright Law.

 

 

 

Who is liable for online infringement?

The New Canadian Notice and Notice Regime

Who is Responsible for Online Copyright Infringement in Canada?

Are Internet service providers (ISPs) and search engine providers responsible when their subscribers and users infringe copyright? In the book Canadian Copyright Law (beginning at page 220), there is a discussion about who is liable for online copyright infringement in Canada. At the time of writing the book, there was no legally required system in Canada for ISPs and others to remove allegedly infringing content hosted by their service, even when a copyright owner notified the ISP. Although not mandatory, many Canadian ISPs have been voluntarily using a notice and notice regime.

What is a Notice and Notice Regime?

A notice and notice regime means that when an ISP receives a notice from a copyright holder that an ISP subscriber may be infringing copyright, the ISP forwards the notice to the subscriber. In the 2012 amendments to the Canadian Copyright Act, this regime has been codified and becomes mandatory as of 2 January 2015.

Government of Canada on the Notice and Notice Regime

A press release from the Government of Canada states the following:

The Notice and Notice regime is a made-in-Canada solution and will legally require Internet intermediaries, such as ISPs and website hosts, to take certain actions upon receiving a notice of alleged infringement from a copyright owner.

Specifically, ISPs and hosts are required to forward notices, sent by copyright owners, to users whose Internet address has been identified as being the source of possible infringement. The intermediary must also inform the copyright owner once the notice has been sent.

The Copyright Modernization Act sets clear rules on the content of these notices. Specifically, they must be in writing and state the claimant’s name and address, identify the material allegedly being infringed and the claimant’s right to it, as well as specify the infringing activity, the date and time of the alleged activity, and the electronic address associated with the incident. The Government is bringing the regime into force after determining that the Act provides sufficient flexibility for the regime to function without regulations.

Intermediaries must retain records associated with these notices for six months or longer (up to one year) in case a copyright owner decides to pursue legal action.

A copyright owner can also send a notice to a search engine provider.

If a notice is sent to a search engine provider for allegedly including infringing material on a website and that material has since been taken down, the search engine provider is expected to remove any copies they may have generated (e.g., for caching purposes) within 30 days. If copies are not removed, copyright owners could pursue damages after 30 days.

Learn more about Canadian Copyright Law.

How are Photographs Protected by Canadian Copyright Law?

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.

 

Images and Canadian copyright law

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.

New Look for Copyright Section of Canadian Intellectual Property Office Site

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

Canadian Intellectual Property Office 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.

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Canada Joins the Two WIPO Internet Treaties

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.

What is a Copyright Policy or Copyright Guidelines?

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.

“Orphan Works” in Canada – Unlocatable Copyright Owner Licences in 2012-2013

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.