Tag Archives: Canadian Copyright Act

Canadian Copyright Law Quiz

Think you know Canadian copyright law? Test your knowledge on Canadian copyright law with these 10 concepts about Canadian copyright law.

Canadian copyright law

True or False?

1. Copyright law is the same throughout the world. T F

2. Canada is a member of the leading copyright convention, the Berne Convention. T F

3. Canada and all countries have the same copyright duration: life + 50 or fifty years after the author’s death. T F

4. If you have permission to reproduce an image in a print book, you may also post that image on your website. T F

5. Once you have copyright protection in Canada you automatically have protection in at least 172 countries that belong to the Berne Copyright Convention. T F

6. Copyright registration is mandatory in Canada. T F

7. Fair use and fair dealing are exactly the same thing and both exist in the Canadian Copyright Act. T F

8. Even if an author has assigned the copyright to you, the author still has the right to prevent modifications that may be harmful to her reputation or honour. T F

9. If you cannot locate a copyright owner in Canada, then you may use that person’s content if you put in reasonable efforts to locate the owner even without obtaining an unlocatable copyright owner license from the Copyright Board of Canada. T F

10. There is an exception in the Canadian Copyright Act for individuals for the use of noncommercial user-generated content, which is sometimes called the YouTube or mashup provision. T F

ANSWERS: 1F; 2T; 3F; 4F; 5T; 6F; 7F; 8T; 9F; 10T.

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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.

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Canada Extends Duration of Copyright in Sound Recordings

Extension of copyright duration in CanadaCanada has now extended the protection of copyright in performances and sound recordings to 70 years after the release date of the sound recording. This new term is effective 23 June 2015. So pencil in on page 132 of Canadian Copyright Law, Fourth Edition,  the new duration for sound recordings: 70 years.

Origin of Extension of Duration of Copyright in Canada

On 21 April 2015, the Canadian government released its Economic Action Plan 2015. Page 305 of the Plan deals with the protection of sound recordings and performances. The plan proposes to amend the Canadian Copyright Act and to extend the duration of copyright protection in Canada of performances and sound recordings from 50 years to 70 years after the release date of the sound recording. The stated purpose of this term extension is to ensure that performers and record labels are fairly compensated for the use of their music for an additional 20 years. The Plan states:

The mid-1960s were an exciting time in Canadian music, producing many iconic Canadian performers and recordings. While songwriters enjoy the benefits flowing from their copyright throughout their lives, some performers are starting to lose copyright protection for their early recordings and performances because copyright protection for song recordings and performances following the first release of the sound recording is currently provided for only 50 years.

Who Benefits from the Extension of Copyright?

In its press release, Music Canada mentioned that artists such as Leonard Cohen, Neil Young, Gordon Lightfoot, Joni Mitchell and Anne Murray would benefit from this term extension as their works would have otherwise been entering the public domain over the next five years. The press release quoted Gordon Lightfoot saying, “I’m still releasing albums but my fans love my older songs. Thanks to the federal government for the recent legislation. Its’ passage will make sure the sound doesn’t go down on my early songs.”

The extension of copyright protection in Canada is only for performers (singers and musicians) and record companies (or anyone who make sound recordings.) The duration of protection for books, paintings or computer software is not affected. However, the duration of copyright in these works is usually much longer than in sound recordings since the duration is based on the life of the author; the duration remains at 50 years after the author has died.

The extension of the duration to 70 years will also benefit Canadian artists who will now be able to collect royalties from the exploitation of their recordings in European Union countries which only provide a 70 year copyright protection to nationals of countries that also provide 70 years of protection. This reciprocity will help increase royalties for artists.

P.S. Toronto-based lawyer Bob Tarantino point out the finer details of the extension of copyright for sound recordings .

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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.

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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.

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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).

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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.

“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!

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