Copyright in Canada Part 1: Copyright Protection Primer

Protect your Intellectual Property with a Copyright. Image (c) William Andrew / Getty Images

Things that you create, such as artistic, musical, and literary works are intellectual property and protected by copyright. But what rights does copyright give you and how can you protect your copyright? Here’s a copyright in Canada primer to answer your copyright questions.

What kinds of works does copyright protect?

All original literary, dramatic, musical and artistic works are covered by copyright.

As you would imagine, each category includes a wide variety of material. Literary works, for instance, include computer programs as well as poems. Photographs are covered by copyright in the artistic category.

What’s the difference between a copyright, a trademark, and a patent?

Copyright, trademarks, and patents protect different kinds of intellectual property. Trademarks distinguish the goods and/or services or one person or company from another. A company might trademark a slogan or the name of a product, for example. Patents protect inventions, such as new processes, equipment or manufacturing techniques. Trademarks and patents are not inherent; they can only be obtained through registration.

When do you have copyright?

The good news; copyright is inherent when an original work is created. In other words, when you create an original work, you automatically have copyright protection. This copyright protection not only exists in Canada, but extends to other countries (as long as the country in question is covered by an international copyright treaty, convention or organization).

There are (as always) some exceptions to automatic copyright protection. For example, if you create a work “in the course of your employment”, the copyright will belong to your employer unless there is an agreement to the contrary. A similar situation exists if a person commissions a photograph, engraving, portrait or print; he or she will own the copyright unless there’s an agreement to the contrary.

Note, too, that you cannot copyright an idea. “Copyright is restricted to the expression in a fixed manner (text, recording, drawing) of an idea; it does not extend to the idea itself” (Canadian Intellectual Property Office).

What are copyright rights?

Generally, copyright protection gives the sole right to produce or reproduce a work or a substantial part of it in any form. (Copyright literally means the right to copy.) For more on exactly what rights are covered by copyright in various forms of original works, see A Guide to Copyrights; Copyright Protection (Canadian Intellectual Copyright Office).

How long does copyright exist?

Generally, copyright exists for fifty years after the death of the author. There are quite a few exceptions to this general rule of copyright duration, depending on the type of work involved. For details, see A Guide to Copyrights; Copyright Protection (Canadian Intellectual Copyright Office).

How do you protect your copyright?

The bad news is that there are many people out there who don’t understand the concept of copyright or don’t wish to acknowledge copyright.

To protect your copyright, the Intellectual Property Institute of Canada (IPIC) recommends that you mark and register your work.

“Copyright protection in Canada does not require any marking of the work; however, to obtain maximum international protection it is recommended that the work be marked with the international copyright symbol ©, the date of first publication (or date of creation for an unpublished work) and the name of the copyright owner, thus: "© 1993, Mary Smith" …” (IPIC).

Copyright registration is easy; it’s a matter of filling out a Copyright Registration form and sending in a fee ($50 when your application is submitted through the Canadian Intellectual Property Office Web site and $65 otherwise). You do not need to send a copy of your original work.

The next page of this article explains what copyright infringement is, how "fair dealing" affects copyright infringement, and what can be done when copyright infringement occurs. Click to continue reading.

So far this copyright primer has explained what copyright is, how long copyright exists and the additional steps you can take for copyright protection. This page deals with copyright infringement and what to do about it.

What is copyright infringement?

Legally, copyright infringement occurs when someone does something that falls within the exclusive rights of the copyright holder. The most common type of copyright infringement is copying part or all of a copyrighted work without permission.

The Copyright Act lays out permissible exceptions to copyright infringement in its section on fair dealing. “The Copyright Act provides that any "fair dealing" with a work for purposes of private study or research, or for criticism, review or news reporting is not infringement. However, in the case of criticism, review, or news reporting, the user is required to give the source and the author's, performer's, sound recording maker's or broadcaster's name, if known” (Canadian Intellectual Property Office). If you read the Copyright Act, you’ll notice that there are no specifics about how much of a work can be used for these purposes, such as a particular number of lines or paragraphs.

Notice that “fair dealing” is not the same thing as “fair use”. “The Canadian concept of “fair dealing” should be distinguished from the American concept of “fair use”, as the latter expression is broader in scope and the former restricted to the purposes mentioned in the Copyright Act” (Fair Dealing in Canada, Laurent Carrière, lawyer and trademark agent).

The Copyright Act also makes exceptions for particular classes of users. Non-profit educational users and non-profit libraries, archives and museums, for instance, have exceptional “rights to copy”, subject to certain restrictions. (See the Copyright Act for details.)

What are the remedies for copyright infringement?

In the best case scenario, when copyright infringement occurs, action such as a cease and desist letter solves the problem. However, if the parties involved can’t reach an amicable settlement, it may be time to take the offenders to court. “Remedies for copyright infringement include awards of damages or injunctions to prohibit infringing conduct. Copyright owners can opt to receive damages based on actual damages suffered, including lost profits, or prescribed statutory damage amounts. In addition, the Copyright Act creates criminal offences and imposes penalties which include, for indictable offences, fines of up to $1 million and imprisonment for a maximum of five years” (IPIC).

In summary, copyright protection is automatic in Canada when you create an original work. However, because there are so many people who copy works without permission, you may want to take additional steps to let them know your work is copyrighted. After all, policing your copyright rights is up to you.

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