Copyright/General
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Copyright - General
Creation and Subsistence of Copyright
What is copyright?
As the name suggests, copyright is a set of rules regulating the copying of unique and original works of human creativity. Put another way, it is the legal protection that is given to the fixed expression of ideas. That expression can take many forms. It may be a literary or dramatic work, a painting, photograph, sculpture, etching or other work of art, a performance, a sound recording, a computer program, even a communication signal.
What does copyright protect?
Copyright protects tangible and unique expressions of creativity. The key word here is expression. Copyright only applies to the concrete form in which literary, dramatic, musical, and artistic works, or compilations like dictionaries, are expressed. To be protected, a work must be fixed. This means that it must be in a definite form, one that has some permanence. Copyright doesn't protect intangible things like ideas or concepts.
In its simplest terms, copyright dictates who has the exclusive right to
- produce, reproduce, adapt or translate a work;
- publish an unpublished work (or any substantial part of it);
- perform or display a work in public;
- communicate a work, or transmit it by telecommunication;
- rent out a sound recording or computer program.
As you can see, copyright offers many different kinds of protection.
What has to be done to create copyright?
Copyright "subsists" as soon as an original, tangible work is produced. This means that copyright in a work is created automatically, at the same time the work is created.
For example, as soon as you have written the first paragraph in your great Canadian novel, copyright in those words has been created, provided that your expression has been unique and original. This creates the potential for much argument over who was the first person to create a work.
How can one work create different kinds of copyright?
Copyright law seeks to looks at the many different ways that a creative work can be expressed or communicated, and reserve those expressions to the author or copyright holder, or to some other person to whom they might assign them.
A musical work offers a good way to understand the many layers of copyright protection that can exist at the same time. The music composed for the play and movie, The Sound Of Music, would qualify as a musical work, and would be protected from duplication, performance or broadcast by anyone but the copyright holder. No one but the holder of the publishing rights could copy the musical score and sell it in a music store, for example. If someone performed that musical work at a theatre, with permission, there would be separate copyright in the performance. No one but the holder of those performance rights could record that performance and sell it as a CD in a record store. And if that performance was broadcast on television, again with permission, further copyright in the transmission of that performance would also be created. No one but the broadcast rights holder could broadcast the performance on radio or television.
The holders of publishing, performance, and broadcast rights are often three different persons or organizations.
Does copyright last forever?
No, although it does last a very long time. The term of copyright in a work is generally the life of the author, the remainder of the calendar year in which the author dies, and a period of 50 years following the end of that calendar year. For example, if an author created a work in January of 1982, and died in July of 2040, copyright protection in that work would survive until December 31, 2090. If there are joint authors, the 50-year period begins to run at the end of the year of death of the last surviving author.
Once copyright in a work has expired, anyone can usually exercise the rights that were protected by copyright. An exception to this rule relates to broadcast and performing rights in a non-copyrighted work. These rights are protected for the term of their copyright, regardless of whether the copyright in the main work has expired.
I recently purchased a CD of a symphony orchestra playing classical music by Beethoven. Beethoven composed his symphonies more than 150 years ago. Does that mean that the copyright in his music has expired? Can I copy that CD recording and sell it?
No. Remember that a creative expression can take many forms. A novel, a composition, a musical arrangement, and a performance are all examples of creative expressions that are protected by copyright. Beethoven composed his symphonies many years ago, and the copyright in that composition has expired. But there is a distinction between Beethoven's composition and the unique arrangement and performance of that composition by the symphony orchestra. The orchestra's arrangement and performance, and the sound recording that captured it are recent, and still protected by copyright.
You could make your own unique recording of Beethoven's work and sell it, because there is no longer any copyright protecting his composition. You could not do the same for a Lennon and McCartney composition because that copyright still subsists. You would have to pay the copyright owner for the right to record and sell a Beatles song. (That copyright is currently owned by Michael Jackson.)
Ownership of Copyright
Who does copyright belong to?
Copyright in a work usually belongs initially to the author. The author is the person who creates the work. Unless the work is created in the course of employment, the author is first owner of copyright.
What about the materials I produce during my work day? Do I own the copyright in these?
No. This situation is an exception to the general rule that copyright is owned by the author of the work. Where the author of a work is employed under a contract of service or apprenticeship and the work was made in the course of his or her employment, the employer, not the author, is the first owner of the copyright.
There are exceptions to this exception. Where the work is an article or other contribution to a newspaper, magazine or similar periodical, the author has the right to restrain the publication of the work, except as part of a newspaper, magazine or like periodical. And of course, the parties are free to make an agreement that sets different rules on who owns copyright in this situation.
Can copyright be transferred?
Yes. Copyright in a work can be assigned by its owner to another person, organization or company, provided that the assignment is in writing. The copyright can be assigned in whole or in part, and can be for the full term of copyright, or any part of it. It can be assigned generally or subject to limitations such as those relating to territory, medium or sector of the market. Once the assignment is made, the original owner has only those rights that the parties have agreed to in the assignment.
Authors who submit manuscripts for publication are usually asked to assign their full copyright to the publisher, in exchange for a royalty payment. Royalty payments are usually based on a percentage of the selling price of each copy of the published work.
An assignment of copyright does not assign an author's Moral Rights in the work.
What is a copyright collective?
A copyright collective is a non-profit society, association or corporation that administers copyright rights on behalf of many authors, artists, and copyright holders, and carries on the business of collecting and distributing royalties or levies payable under the Copyright Act. It avoids the logistical problems that would arise if each copyright holder had to individually collect royalties from many sources, such as libraries or radio stations.
An example of such a collective is CANCOPY. It is the organization that acts on behalf of artists, writers and publishers to grant permission to copy. A licensing fee or royalty is collected and given back to the artist, writer or publisher.
Protection of Copyright
Copyright seems to have pretty wide coverage, but is it really taken that seriously? I see people copying books and papers all the time, especially at the library.
Copyright rules are very strict, and in Canada those rules are set out in the federal Copyright Act. There are, however, a number of exemptions to copyright that relate to who uses copyrighted materials or how they are used. Some of those exemptions relate to
- Fair Dealing with the copyrighted work;
- Educational Exemptions;
- Libraries, Archives and Museums
- reproduction in an alternate format at the request of a person with a perceptual disability.
Who protects the copyright in a work? For example, if I hold the copyright in a short story, and someone else publishes it, will the government step in to protect my copyright?
It is up to the copyright owner, or the collective representing it, to enforce its copyright by means of a civil action. The Copyright Act gives the copyright owner a variety of remedies, such as an injunction, damages, an accounting of profits, and delivery of the copyrighted materials back to its rightful owner.
When copyright is infringed, the infringer is liable to pay such damages to the owner of the copyright as the owner has suffered due to the infringement. The infringer may also be liable to pay back any profits made from the infringement that were not taken into account in calculating the damages.
Why does the law recognize copyright?
Copyright is a means of encouraging creativity. Copyright law basically protects an author's right to benefit economically from the exploitation of his or her creative work. By protecting an author's economic interests, it is believed that an author will be encouraged to produce innovations that will benefit all of society.
Does copyright have to be registered to be protected?
There is no need to register or file any documents, although that is sometimes done for evidentiary purposes. When a work is registered, an author can point to the registration as proof that he or she was the first person to create it.
A work may be registered in the Federal Register of Copyrights for a fee.
I see various copyright notices on all kinds of materials. Does that mean that those materials have been registered or have some special protection?
Copyright exists from the moment a work is created, and no notice is required. A notice doesn't mean that a work has been registered, and doesn't have any magical effect. But a notice can create certain presumptions as to the ownership of the copyright when it appears in connection with a work.
A copyright notice is usually expressed with the symbol ©. That is the symbol adopted by the Universal Copyright Convention for use on copyrighted materials.
Are there any requirements to be an author of a work protected by copyright?
Anyone can be an author, but in order to be protected by Canadian copyright law, an author must meet certain requirements. Most importantly, the author must be a citizen or subject of, or ordinarily live in, a country that
- has signed the Berne Convention on copyright protection, or
- has signed the Universal Copyright Convention on copyright protection, or
- belongs to the World Trade Organization.
Different Kinds of Works
What is a literary work?
A literary work includes the kinds of written works one would expect, like novels and books. But it also includes tables and computer programs, letters, instruction manuals, even legal contracts and brochures.
There is no requirement that a literary work have any aesthetic, literary or artistic merit. It doesn't even have to be informative, or have a purpose. Generally, it is enough if it has been put into print or writing.
What is a dramatic work?
A dramatic work, as the name suggests, is a work with an element of drama in it. It includes any piece created for recitation, choreography or mime, "the scenic arrangement or acting form of which is fixed in writing or otherwise." It also includes a cinematographic work.
Examples of dramatic works are as follows:
- a screenplay
- a ballet
- a movie
- a radio sketch
The important feature of a dramatic work is its fixed nature. A sporting event, although it can be very dramatic, is not considered a dramatic work, for example, because it is not determined. The outcome of the game, and the arrangement of the plays are not set or controlled by a writer or producer. A broadcast of a sporting event, however, is protected by copyright, because communication signals are copyrighted.
What is a musical work?
A "musical work" means any work of music or musical composition, with or without words. It isn't the same thing as a musical performance; a performance is in a category all its own.
If I told a movie producer about an idea I have for a screenplay, would my idea be protected by copyright law?
No, it would not. An idea, on its own, cannot be protected by copyright. However, the tangible expression of that idea is protected. Consider, for example, that your idea for a movie involves an object from space on a collision course with Earth. You propose that astronauts are sent to blow up the object before it strikes the planet. This entertaining idea is just that — an idea. It is not a creative expression that is unique and tangible. Many people have had an idea about creating just such a movie, and it would be impossible to say who actually thought of it first.
However, a screenplay is not an idea. It is the tangible expression of an idea or concept. It has specific dialogue and direction. An original screenplay is unique — although two people may have the same idea, they will not express it the same way. That is why the idea about a space disaster was presented very differently in the movies, Armageddon and Deep Impact. Both movies were based on the same idea, but the tangible expression of that idea was quite distinct.
This page was last updated in December, 1998.
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