A copyright is an “intellectual property” right that is commonly misused, misunderstood, and confused for other intellectual property protections. This article will explain what exactly a copyright is, address some of the common questions asked about copyrights, and explain the differences between copyright and other intellectual property rights.
What is copyright?
Copyright allows for the exclusive right to produce or reproduce, in any form, an original piece of work in its entirety or in part. It is important to note that copyright does not confer ownership over a piece of work. It simply allows the copyright holder to reproduce a piece of work or permit others to do so.
In Canada, copyright automatically begins upon the creation of work. However, the work must be original for a copyright to exist. Although copyright starts with the creation of work, the creator of a workpiece is not the only one who can hold a copyright in the created work.
In addition to the creator of a work, a copyright holder can be another individual, institution, or a government body. An entity or individual other than the creator of a piece of work can receive copyright through a copyright assignment.
A copyright assignment is an agreement whereby the creator of an original piece of work or holder of copyright transfers the copyright to another individual or entity. Once a copyright is assigned, the previous holder of the copyright loses control over how the copyrighted work is used and cannot reclaim exclusive ownership after a period of time.
What type of work does copyright cover?
Copyright applies to a myriad of original material. Below is a list of works that copyright applies to:
- Digital Media,
- Performances, and
- Software Programs.
The above list is not exhaustive.
How long does a copyright last in Canada?
Copyright in Canada lasts for the creator’s lifetime, plus an additional 50 years from the end of the year that the creator died.
Should copyright be registered?
Copyright does not need to be registered for it to be legally enforceable. However, registering a copyright provides material benefits. For one, registered copyright constitutes an official proof of ownership and creates the automatic assumption that a copyright exists in a piece of work. In the event of litigation, the copyright holder will not need to prove that their work is copyrighted.
What rights does copyright provide?
The Copyright Act grants copyright owners the sole and exclusive right to create or recreate a work, and an exclusive right to ownership. It essentially gives copyright owners, with limited exceptions, the right to do whatever they want with the work.
The Copyright Act outlines three sets of rights. These are (1) economic rights, (2) moral rights and (3) neighbouring rights.
Economic rights grant the copyright owner the exclusive right to reproduce a work or to allow another entity or individual to do so.
Moral rights protect the integrity of a work and the identification of its creator. Moral rights in copyright are complex. For the purposes of this piece, it is enough to know that moral rights include the right of attribution, the right of association, and integrity rights. The right of attribution allows the author of an article of work to publicly name himself or herself as the owner of the work. The right of association protects the author’s good name and reputation. Specifically, it allows the author to choose the context that their work is displayed in and the causes to which their work is associated with. For example, an author’s name and reputation are at risk of being damaged if the author is an open and avid vegan, but their work is on display at a meat processing plant. Finally, moral rights also include integrity rights. Integrity rights allow an author of a work to preserve the intended meaning of the work and protect it from destruction or defamation.
Neighbouring rights protect the rights of performers, broadcasters, and makers of sound recordings by ensuring they receive monies for the broadcast or public performance of their recordings.
Are there limitations to copyright?
For the most part, copyright applies to creative works. Nothing that is already in the public domain is eligible for copyright protection, nor are any facts or ideas.
When is a piece of work considered to be in the public domain?
A piece of work can belong to the public domain for a multitude of reasons. Underlined below are the ordinary circumstances in which a piece of work become public domain:
- If the copyright registration on the work has expired
- If a piece of work fails to meet the requirements for copyright set out in the Copyright Act
- If the copyright owner gives copyright work to the public
- A copyright owner’s declaration to the public allowing the use of their copyrighted work without payment or permission
Are there exceptions to copyright?
The Copyright Act outlines fair dealing provisions as an exception to copyright laws. The fair dealing provision permits the use of copyright-protected without permission or payment of copyright royalties. The following must be established for the use of copyrighted work to qualify as a fair dealing:
First, the “dealing” must be for a purpose as stated in the Copyright Act. These purposes include, amongst others, research, private study, criticism, review, news reporting, education, satire or parody, and educational use of a copyright-protected work.
Second, the dealing must be “fair.” The fair dealing guideline sets out what dealing is considered “fair” and provides reasonable safeguards for the owners of copyright-protected works under the law.
It is important to note that the fair dealing provision allows for limited use of copyrighted work; it does not condone full replication.
Copyright versus other intellectual property protections
Copyright protects original pieces of work. Patents, on the other hand, protect new innovations and improvements to past innovations, and trademarks protect brand names and symbols of commerce.
Jeff is an employment lawyer in Toronto. He is the Principal of the Dutton Employment Law Group at Monkhouse Law. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles.