Copyright – Frequently Asked Questions

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What is copyright?

The exclusive right to copy, publish, record, perform, broadcast, translate, convert or adapt an original creative work or permit someone else to do so.

What does copyright protect?

Original literary, dramatic, musical and artistic works. Originality does not require quality, skill or artistic merit, so long as the work originates with the author and is not copied from someone else.

What are examples of original works?

  • Literary works: software, tables, compilations, books, poems and film scripts
  • Dramatic works: plays, films and cartoons
  • Musical works: advertising jingles, songs and symphonies.
  • Artistic works: maps, blueprints, paintings, sculptures, photographs and drawings

What is not protected?

  • Ideas or concepts, unless it is an expression of them
  • Names, titles, slogans or short word combinations are not protected by copyright, although they may be protected as trade marks
  • Features of shapes, configurations, patterns or ornamentations which are mass produced

Who owns the copyright?

Usually the author or creator, unless the work was created in the course of employment – in which case it may belong to the employer – or the copyright has been legally transferred to someone else. Much depends on whether you are an independent contractor or employee and whether there was an agreement to the contrary.

What is the difference between an employee and an independent contractor, and how can I tell whether there was “an agreement to the contrary”?

The courts look at the degree of control exercised by the “employer”, the ownership of the tools, the chance of profit and risk of loss and how integrated the person is in the employer’s business. This is a tricky area in which it would be wise to get legal advice.

How is ownership of copyright transferred?

Copyright ownership can be transferred to someone else by a legal assignment in writing signed by the owner.

What if I commissioned and paid for the work to be done, but there is no written assignment?

Unless the work was a photograph, portrait, engraving or print, if there is no written assignment the copyright ownership may still be with the author or creator.

How can I not own the work when I paid for it?

It is possible to own the physical copy of the work, but not the right to reproduce it. For example, you can buy an original painting and own the physical canvas, but not have the right to make copies of that painting for resale unless you have a written assignment of copyright from the owner or a licence to reproduce it.

What is the difference between an assignment and a licence?

  • An assignment is a transfer of ownership of the copyright to a work.
  • A licence is an agreement which gives the licensee permission to use or reproduce the work subject to certain conditions.

What is copyright infringement?

It is an infringement to use copyright material without the permission of the owner.

What if I only take part of the work or make some changes?

If there is a substantial similarity and you do not have permission, it is still infringement.

Aren’t there some exceptions under the Copyright Act?

Yes, there are “fair dealing” exceptions which allow the use or reproduction of a copyrighted work for private study, research, criticism, review or news reporting, but these are fairly narrow.

How long does copyright last?

With some exceptions, generally copyright lasts for the life of the author or creator plus 50 years.

Am I free to copy a work after the term of protection has expired?

Yes if you stick to the original. Although Shakespeare’s plays are in the public domain, it would still be an infringement to copy a recent Penguin edition of “Hamlet”, complete with its annotations, footnotes and editorial comments, because a separate copyright subsists in that version of the original work.

Do I have to register?

No, protection arises automatically on creation. However, there are some advantages to having a registration if there is a dispute.

What are the advantages of registration?

  • It creates a legal presumption that the registrant is the copyright owner
  • It also limits the defences available to the defendant in an infringement action and may entitle the owner to damages

Is a Canadian copyright enforceable outside of Canada?

Yes if it is a country which belongs to the Berne Convention, the Universal Copyright Convention, the Rome Convention or the World Trade Organization, but it may be advisable to register your copyright in certain key countries such as the United States.

How do I register?

You can download an application and instructions from the Canadian government website at http://strategis.ic.gc.ca and file it electronically. The fee is $50.

If you want to make sure you get it right, we can prepare and file the application for you.

 

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