Copyright Act of Canada

Copyright Act of Canada is Canada's federal statute governing copyright law in Canada. The Copyright Act of Canada which was first passed in 1921 and substantially amended in 1988 and 1997. In 2005 an attempt to amend the Canadian Copyright Act was made but Bill C-60 did not pass into law before Parliament was dissolved in November 2005. A further attempt was made in 2008 but Bill C-61 did not pass into law before an election was called in September 2008. Bill C-32 was tabled in June 2010.

The original Canadian Copyright Act

The first Copyright Act of Canada was passed in 1922 which came into force in 1924. Though Canada was no longer subject to imperial copyright law, it was closely modelled on the UK Copyright Act 1911. Until 1988 the Copyright Act of Canada saw only minor amendments while the Federal Government engaged in a number of studies on copyright reform. New technological developments and the emergence of computers, photocopiers and recording devices led to a recognition that copyright law needed to be updated. Between 1954 and 1960 the Royal Commission on Patents, Copyright, and Industrial Design, known as the Ilsley Commission, published a series of reports. Its brief was "to enquire as to whether federal legislation relating in any way to patents of invention, industrial designs, copyright and trademarks affords reasonable incentive to invention and research, to the development of literary and artistic talents, to creativeness, and to making available to the Canadian public scientific, technical, literary and artistic creations and other adaptations, applications and uses, in a manner and on terms adequately safeguarding the paramount public interest."^[1][2]

Reform in 1988 and 1997

In 1977 the Canadian department of Consumer and Corporate Affairs published the Keyes-Brunet Report, a working paper with the full title "Copyright in Canada: Proposals for Revision of the Law". In 1984 the Federal Government published "From Gutenberg to Telidon: A White Paper on Copyright" and in 1985 the House of Commons' Standing Committee on Communications and Culture published "A Charter of Rights for Creators - Report of the Subcommittee on the Revision of Copyright". A copyright reform process was initiated in two phases: Phase one was started in 1988 and saw several amendments to the original Copyright Act of Canada of 1922. Computer programs were included as works protected under copyright, the extend of moral rights was clarified, the provision for a compulsory license for the reproduction of musical works was removed, new licensing arrangements were established for orphan works in cases where the copyright owner could, and rules were enacted on the formation of copyright collecting societies and their supervision by a reformed Copyright Board of Canada.^[1]

Phase two of the reform took place in 1997 and saw the Copyright Act of Canada amended with a new remuneration right for producers and performers of sound recordings when their work was broadcast or publicly performed by radio stations and public places such as bars. A private copying levy was introduced on blank audio tapes used for private copying and exclusive book distributors were granted protection in Canada. New copyright exceptions were introduced for non profit educational institutions, libraries, museums, broadcasters, and people with disability, allowing them to copy copyrighted works in specific circumstances without the permission of the copyright owner or the need to pay royalties. Damages payable for copyright infringement and the power to grant injunctions were increased, and the 1997 reforms introduced a mandatory review of the Copyright Act of Canada.^[1]

Bills to amend the Copyright Act

Bill C-60

Main article: Bill C-60 (38th Canadian Parliament, 1st Session)

In June 2005, the government introduced Bill C-60 to amend the Copyright Act. Among the major changes proposed to the Act include:

• The removal of the photographer exception allowing them to gain de facto authorship to anything they photograph.
• Extends moral rights to performers of other people's works.
• Allows for infringement of copyright by circumventing rights management schemes when it is for the purpose of violating another right.

The bill was never passed into law as Parliament was dissolved after a motion of non-confidence was passed in November 2005.

Bill C-61

Main article: Bill C-61 (39th Canadian Parliament, 2nd Session)

In Summer 2008, the government introduced Bill C-61 in their continuing effort to update the Copyright Act, with numerous similarities to the previous Bill C-60 and the American DMCA. Industry Minister Jim Prentice introduced the bill to improve compliance with WIPO treaties. It was heavily criticized and praised by conflicting sides, of being too harsh and setting up "police states", to being needed copyright reform.^[3] The bill died on the table due to the September 7, 2008 election call.^[4] The bill died before it passed into law when the Conservative government called an election in September 2008.

Bill C-32

Main article: Bill C-32 (40th Canadian Parliament, 3rd Session)

On June 2, 2010, Bill C-32 was tabled by federal Industry Minister Tony Clement, full title An Act to Amend the Copyright Act. ^[5] While many aspects of the bill have changed from Bill C-61, those portions regarding legal protection of technological protection measures remain fundamentally unchanged. These measures have been criticised by consumer groups, including the Consumers Council of Canada, the Public Interest Advocacy Centre, Option consommateurs and Union des consommateurs;^[6] via the Canadian Consumer Initiative, they sent a letter to Heritage Minister James Moore, who had stated in the House of Commons that consumer interests were represented by the Canadian Chamber of Commerce, noting that the Canadian Chamber of Commerce "is a business lobby group that in no way represents consumer interests, and in fact opposes the position of consumer groups on copyright policy".^[6]

The bill never passed into law into law because before it could be passed, the government failed to maintain the confidence of the House of Commons in April 2011 and after the dissolution of Parliament, an election was called in April 2011.

Bill C-11

On September 29, 2011, Bill C-11 was introduced into Canadians 41st Parliament by the federal Industry Minister Christian Paradis with the short title Copyright Modernization Act ^[7] This Bill resembles Bill C-32 from the previous Parliament which did not pass due to the dissolution of Parliament. Most of the opposition to the Bill from the opposition parties, in particular the official opposition NDP is about two aspects:^[8] 1) The fact that its not prohibited to circumvent digital locks even for lawful purposes and henceforth all the fair use rights in the bill can easily be removed by the usage of such a digital lock. 2) The missing compensation of creators of works through a scheme similar to the one used in the past that puts a levy on recording media at the time of sale of such blank media.

Provisions of the Copyright Act of Canada

Rights granted

Copyright grants the sole and exclusive right to create and recreate a work whether wholly or substantially. It also includes the sole rights to:

• publish the work if unpublished
• perform the work in public
• to produce, reproduce, perform or publish any translation of the work,
• in the case of a dramatic work, to convert it into a novel or other non-dramatic work,
• in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise,
• in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed,
• in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work,
• in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,
• to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan,
• in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program, and
• in the case of a musical work, to rent out a sound recording in which the work is embodied,

and to authorize any such acts.^[9]

Originality

The Act provides protection for all "original literary, dramatic, musical and artistic" works. Close attention has been paid to the use of the word "original". It has been well established that the foremost requirement for the subsistence of copyright is that the work be original.

The CCH Canadian case re-evaluated the meaning of "original" and found that for a work to be original it must be the result of the exercise of "skill and judgment". More specifically: skill, meaning the "use of one's knowledge, developed aptitude or practiced ability in producing work", and judgment, meaning the "use of one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work". Nevertheless, originality does not require any novelty or creativity. It does require intellectual effort beyond mere mechanical exercise.

The determination of originality on the basis presented in CCH Canadian depends on the facts. For a large part, it depends on degree to which the work originated from the author. Many factors are considered, The medium or form used is significant. Whether it comprises elements that are in the public domain or not, whether it the ordering of data or facts, or whether the form is pedestrian or novel. Mere selection is generally not enough. As well, it is significant to consider whether there are any artistic elements to it.

Fixation

Copyright provides the protection of expression of ideas. This entails that there must be a form, or "fixation", to the expression. It is fixation that distinguishes an expression from an idea.

In Canadian Admiral Corp. v. Rediffusion, the court considered fixation: "for copyright to exists in a 'work' it must be expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance." In this case, the court found that there was insufficient fixation in the live broadcast of a sports event. Any sort of broadcast, telecast, or display of a spectacle on its own is not sufficient to be fixed. At the least, it must be simultaneously recorded in some fashion to be fixed.

To the possible exception of choreographed works, there is a requirement that the work be recorded in a relatively permanent form. Typing a note into a computer screen may be sufficiently permanent. Some cases have shown that unstructured speech or other spontaneous or improvised creations, such as a sports game, cannot contain copyright.

Exclusion

Both facts and ideas are by their very nature uncopyrightable. This will often create difficulties when it becomes necessary to separate the idea from the expression as well as in the separation of fact from the arranging and use of those facts. Where the distinction between idea and expression becomes obscured the Courts often take a precautionary view that it cannot be copyrighted so as to avoid preventing others from expressing the same idea.

Minor designs that are largely ornamental or functional are excluded as well. For example, coloured blocks used as tools in an educational program are excluded.

Ownership

The copyright of an artist's work is owned directly by the artist in most cases with the exception of engravings, photographs, portraits, and works created in the course of employment. Furthermore, these rights can be alienated through assignment and licenses.

An artist's moral rights, however, are inalienable and stay with the artist their entire lives. As with copyrights, moral rights are inheritable.

Government works

Section 12 of the Copyright Act reserves copyright for all works produced by the government for a period of 50 years following the end of the calendar year when the work has been performed. In addition, the Copyright Act applies to government works, but "without prejudice to any rights or privileges of the Crown". The exact extent of these reserved rights are not clear, see^[10] for more on this.

Music Recordings

The music industry created a loophole in Canadian copyright laws when it asked for a levy on blank audio media. Since 1999, these private copying levies on blank audio recording media (such as audio cassettes, CDs and CD-Rs) have raised millions of dollars for songwriters, recording artists, music publishers and record companies. In exchange, and subject to certain exceptions, the act of copying music onto an audio recording medium for the private use of the person who makes the copy does not constitute copyright infringement.^[11] Also, the statutory private copying provision is silent as to whether the person doing the private copying must also be the owner of the music being copied.

Some argue that the private copying levy legalized copying in the digital age, to the consternation of the music industry.^[12] However, Canadian courts have not extended the definition of "audio recording medium" to exempt music copied onto computer hard drives, digital audio recorders (such as iPods or MP3 players), or other types of permanently embedded memory.^[13]

Foreign works

Section 5 of the Copyright Act applies the act to all for British subjects and residents, as well as citizens, residents, and corporations of Berne convention countries.

Copyright terms

According to s. 6 of the Act the copyright of a work lasts the life of the author plus 50 years from the end of the calendar year of death.[2]

For joint authors, the copyright of a work lasts the life of the author who dies last, plus 50 years from the end of the calendar year of that death.[3]

According to s. 9(2), the duration of foreign works generally follow the Rule of the shorter term except in the case of NAFTA countries (i.e. USA and Mexico). Works from NAFTA countries follow the Canadian duration rule.

Unknown or Anonymous Authors

Where the identity of the author is unknown (if the author is anonymous or pseudonymous) then the copyright lasts for either 50 years from the publication of the work or 75 years from the making of the work, whichever is shorter.[4] However, if author’s identity becomes commonly known during this time, the term provided in section 6 applies. The act also makes provisions for posthumous works.[5]

Orphaned works

The act established licensing arrangement for works where the copyright owner can not be located.[6]

Photographs

There is a separate provision for the author of photographs. According to s. 10 [7] of the Act, the author of the photograph is the person or corporation who was either 1) the owner of the initial negative or other plate at the time when that negative or other plate was made, or 2) was the owner of the initial photograph at the time when that photograph was made, where there was no negative or other plate. In contemporary terms, this means that the author of a photograph is usually the person who owns the film in the film camera, or whoever owns the digital camera.

Where the author is a person or a corporation whose majority shareholder is the photographer, s. 6 applies, and the term of copyright for the photograph is the life of the author plus 50 years from end of the calendar year of death.

Where the author is a corporation, the term of copyright for the photograph is the making of the initial negative or initial photograph, plus 50 years.

There is also separate provision for the copyright ownership of photographs. In particular, unless a contract exists to the contrary, the copyright of any engraving, photograph or portrait is owned by the person who ordered the work once payment is made. The copyright is owned by the author until payment is made. This only applies to works that were "made for valuable consideration". See s. 13(2)[8] of the Act.

Penalties

According to section 34(4) of the copyright act, specific penalties will be decided by the court. Section 35(1) states that an infringer is liable for the financial gain made through infringement, and "such damages to the owner of the copyright as the owner has suffered due to the infringement" ^[14]

A copyright holder can instead elect to protect his/her copyright under section 38, which allows for "a sum of not less than $500 or more than $20,000 as the court considers just." ^[14]

There are three categories of remedies to copyright infringement. They are Border, Civil, and Criminal. Border enables Customs to detain infringing materials at the border. Civil allows the copyright holder to take direct action against a person or company who violates his or her rights. Criminal is used when it is too costly to sue or to stop or try to dissuade people from committing the act again.

See also

• Fair dealing in Canada
• File sharing in Canada

References

1. ^ ^{a b c} Makarenko, Jay (13 March 2009). "Copyright Law in Canada: An Introduction to the Canadian Copyright Act". Judicial System & Legal Issues. Mapleleafweb. http://www.mapleleafweb.com/features/copyright-law-canada-introduction-canadian-copyright-act#history. Retrieved 15 August 2010. 
2. ^ "Patents, Copyright and Industrial Designs, Royal Commission on". The Canadian Encyclopedi. http://www.thecanadianencyclopedia.com/index.cfm?PgNm=TCE&Params=A1ARTA0006135. Retrieved 15 August 2010. 
3. ^ TheStar.com | Canada | Troubling details in new downloading law
4. ^ http://www.itworldcanada.com/Pages/Docbase/ViewArticle.aspx?ID=idgml-2ea4d00b-3de4-462b&Portal=448d158c-d857-4785-b759-ffa1c005933c&sub=46833
5. ^ [1]
6. ^ ^{a b} Nowak, Peter (16 June 2010). "Consumer groups blast Moore over copyright". CBC News. http://www.cbc.ca/consumer/story/2010/06/16/copyright-reform-consumers.html. Retrieved 2010-06-17. 
7. ^ parl.gc.ca
8. ^ openparliament.ca
9. ^ Copyright Act (R.S., 1985, c. C-42)
10. ^ Vaver commentary on copyright and the state in Canada and USA
11. ^ Copyright Act of Canada, R.S.C. 1985, c. C-42, s.80.
12. ^ CRIA about-face on iPod levies tied to concerns over legitimizing downloads
13. ^ See both Federal Court of Appeal cases: Canadian Private Copying Collective v. Canadian Storage Media Alliance [2005] 2 F.C.R. 654 and Apple Canada Inc. v. Canadian Private Copying Collective [2008] F.C.J. No. 5.
14. ^ ^{a b} http://www.cb-cda.gc.ca/info/act-e.html

External links

• Copyright Act, full text
• First reading bill C-32