Intellectual Property Rights- Copyright Owners and Users

The Basics Copyright Law in Canada

In this article we will explore the basics of copyright law in Canada and answer these three questions.  

1. How can you protect your rights as the creator of intellectual property?
2. What is considered intellectual property under copyright law?
3. What is Fair Dealing and your rights as the user of copyright material?

Canadian Copyright Law Protects the Owner of the Copyright

If you create intellectual property you own the rights and those rights are protected under the Canadian Copyright Act.  Regardless of their merit or commercial value, Canadian law protects all original creative works the moment it is created and fixed in a material form, provided that conditions set out in the Copyright Act are met.

There are 3 basic conditions of copyright:

1. The expression of the work should be original or an independent creation produced with knowledge or skill.  Neither quality or novelty are required.   If not unique in the content/class of work, it must be sufficiently distinct from existing work so as represent some aspect of creativity, even a minimal amount. Even poorly created intellectual property is subject to copyright protection.
   
   
2. The author or creator, at the date of the making of the work, is or was a citizen or subject of, or a person ordinarily resident in, Canada or some other treaty country.  Though, there are exceptions whereby the minister extends protection to other countries.
   
   
3. The intellectual property must be fixed in some tangible medium of expression.  It applies to drafts and completed works, both published and unpublished.  The medium must be perceived, reproduced, communicated for more than a transitory or impermanent period.  

Simply put, once you have met the conditions of copyright, the Act prohibits others from copying your creative work without your permission.   Copyright automatically comes into existence as soon as you create the work, whether you register the copyright or not.  Your copyright lasts for your lifetime plus the 50 years following your demise.

Registering your work with the Canadian Intellectual Property Office is voluntary, but can be beneficial if need to prove you are the owner of the copyright or you need to enforce your copyright in a lawsuit against an alleged infringer that pleads it was an “innocent infringement” which is a common argument.

 Access the Guide to Copyright Act from the Canadian Intellectual Property Office  

Copyright Marking

Copyright is signified by “copyright marking” which includes the copyright symbol ©, the name of copyright owner (pseudonym is acceptable) and the year of first publication.  The marking serves as a deterrent or general reminder to everyone that the work is protected by copyright law.  Use of the marking under Canadian copyright law is not mandatory but some other countries do require it.  You can use the © symbol even when the work is not registered.

What can be copyrighted?

Though this is not an exhaustive list, copyright of intellectual property includes:

• Literary works: books, poems, essays, lectures, speeches, songs, pamphlets, blogs, computer programs or other original work created using text.
• Musical works: compositions with or without words, sound recordings, communication signals
• Visual art: paintings, drawings, maps, architectural drawings, photographs, sculptures, engravings.
• Dramatic creations:  movies, plays, screenplays, scripts, characters, dialogue, videos, vlogs.
• Performance: lectures, recitations, reading, improvisations of a dramatic work. 
• Musical or literary work, whether or not the improvised work is based on a pre-existing work.

Some works do not qualify for protection under copyright law.  These include: ideas, facts, short and one-word titles, impromptu speeches, brief live broadcasts, unexpressed ideas, and works that are not fixed in a material form.  If you have produced something and not written it down or recorded it in a somewhat permanent digital format you cannot hold copyright.  Additionally, works which are unoriginal – that is works which do not require skills and judgment to create cannot be protected by copyright law.  If you are unsure you must seek counsel.

Intellectual property rights vary by country and jurisdiction.  A work may be subject to rights in one country and be in the public domain in another. 

Public Domain

Significant amounts and types of copyright material exist in the public domain due to the fact that rights may never have existed, may have expired, been forfeited, expressly waived, or even inapplicable. The works of William Shakespeare and Leonardo da Vinci are in the public domain by virtue of the fact they were written before copyright law existed. In the United States computer software created prior to 1974 and cooking recipes are excluded from copyright. You might want to check Project Gutenberg and the Internet Archive where you will find tens of thousands of ebooks.

Internet Archive – non-profit library of millions of free books, movies, software, music, websites, etc.

Project Gutenberg – 50,000 items in its collection of free eBooks  

Project Gutenberg Canada

Project Gutenberg Australia

Fair Dealing and Your Rights as a User of Copyrighted Content

The Canadian Copyright Act does not exist solely to protect the rights of authors.  An integral provision in the act called Fair Dealing makes it clear that “users’ and creators’ rights are equally important components of copyright.”  It has been inexistence since 1921 to promote creativity, innovation, and the orderly exchange of ideas.  In the last two decade the Supreme Court of Canada reaffirmed that one of goals of the act was to promote public interest in the encouragement and dissemination of works of the arts and intellect.   Please note something similar exists in the United S, called the “Fair Use Act”.

Without having a license from the copyright holder, under the provisions of the Fair Dealing Act, as a user, you have important rights that allow for the use of copyright-protected material without permission from the copyright holder.  Under certain circumstances, Fair Dealing allows for copyrighted works to be used for research, private study, criticism, review, news reporting, education, parody, and satire.

Guideline for Fair Dealing

In Canada, if you plan to use another person’s protected copyrighted works for any purpose you must ensure your copying is fair.  To determine fairness you must consider six factors:

1. Purpose of the dealing:  What is your real purpose? Does it fit in a category allowed under the Copyright Act? Research, private study, education, parody, satire, criticism, review, and news reporting are all allowable purposes under Fair Dealing.  Some dealings, even if for an allowable purpose, may be more or less fair than others; copying done for commercial purposes may not be as fair as that done for charitable purposes. 
   
   
2. Character of the dealing:  Are you planning to distribute the copy to others.   Limited distribution would tend towards fairness.
   
   
3. Amount of the dealing:  In relation to the work as a whole, what amount are you planning to copy?  A trival amount poses no argument, since the Act only protects a 'substantial' use of the work. A lesser amount would tend towards fairness, though in some instances it may be possible to deal with a whole work fairly. For example, it may be necessary to deal with reproducing an entire photograph, in order to critique it; however, it is unlikely that it would be necessary to reprint most of a book for the same purpose.
   
   
4. Alternatives to the dealing:  Is there a non-copyrighted alternative/equivalent that you could use?  Is the copying even required to achieve your ultimate purpose?
   
   
5. Nature of the dealing:  What is the publication status of the work?  Is it confidential? If unpublished, reproduction with acknowledgement could lead to promotion and a wider public dissemination of the work.  However, promoting work that is confidential would pose problems in terms of what is considered fair.
   
   
6. Effect of the dealing on the work:  Will copying (such as distributing the copy to others) have a competitive affect on potential sales of the original work.  Competition suggests dealing is unfair.

This guideline is referred to as the six-factor test for fairness. This guideline is in-exact. That is because the Fair Dealing Act is purposefully flexible.  In Canada, there are no specific legal descriptions or formulas about how much you can copy or how you can distribute them.   It is from the decision of the courts from which the six-factor test was determined.  The guideline is used by the education, journalism, and film production sectors, just to name a few.   Based the six-factor test for fairness the Council of Ministers on Education developed a Fair Dealing Decision tool that is useful for most everyone who deals with intellectual property:

Fair Dealing Website 

Fair Dealing DecisionTool  (2020) 

Copyright Matters – Key Questions and Answers 

Fair Dealing Guidelines

Fair Dealing in Canada – Myths and Facts

If you are a podcaster you need to read this:   Legal Guide to Podcasting

Other Things to Consider about Fair Dealing

Before you use intellectual material belonging to another copyright holder, bear in mind the risk you are taking if you infringe on copyright law.  Consider the Fair Dealing requirements and use the six-factor test first.

• It may be easy to obtain permission from the creator.
  
  
• If you do copy, in all cases, cite the author/creator.  To avoid copyright infringement, you can link to the site rather than copy.
  
  
• On your website, you can post a Fair Dealing disclaimer to disclose that your site may contain content not authorized for use by the copyright owner. A disclaimer helps protect your site from copyright infringement claims, as long as your use of copyrighted content falls within the guidelines of the Fair Dealing portion of the Canadian Copyright Act.
  
  
• Check the public domain for works that might suit your needs.  The public domain consists of all the creative work to which no exclusive intellectual property rights apply. 

If you lead a group of researchers, educators or journalists, educate them on Fair Dealing.  Establish a step-by-step process to determine whether or not you can copy/communicate copyright protected work.