"Today's business community continues
to grow as a direct result of the marketing genius of the
graphic artists community and the programming skills of software
developers. It is a crying shame that so many of these talented
artists are not protecting themselves."
Victor G. Arcuri - May 1983.
In this guide we will look at what a copyright is,
how it can benefit you, the advantages of registering, and how to
register. Keep in mind that this guide offers general information
only, and does not cover all the complex issues of Copyright Law. For
exact definitions and details, consult the Copyright Act, the
Copyright Rules, and decisions of the courts in specific cases. You
can find these texts in many libraries. You can also buy a copy of the
Act and Rules in any bookstore selling Federal government
If you have questions not covered by the related
sections you may direct them to:
ARVIC Search Services Inc.
2323-32 Ave. NE., Calgary, Alberta T2E 6Z3
Telephone: (403) 234-0844
Fax: (403) 294-0944 E-Mail
Canadian Copyright Guide
Table of Contents
In this section we will discuss
Copyright Includes the Sole Right To:
When Copyright Does Not Apply
A poem, painting, musical score,
computer program; are all valuable creations, although perhaps
no one can measure their true worth. Some may earn a lot of money in
the marketplace and others, none at all. Regardless of their merit or
commercial value, the law regards all such original creative works as
copyright material. This means that an owner of the copyright in a
poem, song, or other work, has a number of rights which are protected
under the Copyright Act.
By the same token the business owner who creates,
or has his employee create, any instruction manual, literature or
users guide also has a number of rights which are protected under the
Simply put, the Act prohibits others from copying
your work without permission. Its purpose, like that of other pieces
of intellectual property legislation, is to protect owners while
promoting creativity and the orderly exchange of ideas.
Copyright law has become increasingly complex over
the years to respond to a sophisticated communications environment. In
this high-tech age, there are many new ways of producing creative
works as well as of imitating or exploiting them without the creator's
permission. The photocopier, videocassette recorder, personal
computer, the Internet and digital reproduction are just a few
examples of modern devices that help artists communicate with their
audiences, but also makes it harder to control unauthorized use.
The Copyright Office - The federal
agency responsible for registering copyrights is the Copyright Office.
Registration is official acknowledgement of your copyright claim. It
means that the Copyright Office has recorded the details which you, or
your agent have provided, and gives a certificate attesting to this
In addition to registering copyrights, the Office
maintains records of all registrations and other pertinent documents
for public use and provides information to the public about the
Staff at the Copyright Office do not interpret the
Copyright Act or counsel in any matters other than registration or the
use of Office records. For professional advice, you may wish to
consult an intellectual property specialists with knowledge in the
The records of the Copyright Office are open to the
public; you may search through them to find information, such as, who
owns a certain copyright, and whether ownership has changed. Note that
registrations recorded after October 1991 are on a computerized
system. Staff will be pleased to give you the basic information needed
to conduct searches.
What is a copyright? - In the simplest
terms, copyright means the right to copy. Only the owner of the
copyright, usually the creator of the piece, is allowed to produce or
reproduce the work in question or to permit anyone else to do so.
Copyright law rewards and protects creative endeavour by giving the
sole right to publish or use your work in any number of ways. You may
also choose not to publish or to prevent anyone else from doing so. By
way of example, the business that creates instruction manuals,
descriptive literature, promotion material and price lists or develops
computer software has the right to prevent others from copying this
Copyright applies to all original literary,
dramatic, musical and artistic works. Each of these general categories
covers a wide range of creations. Here are just a few examples:
Literary Works - Books, pamphlets,
product literature, instruction manuals, operation manuals, poems and
other works consisting of text, including computer programs;
Dramatic Works - Films, videos,
plays, screenplays and scripts;
Musical Works - Compositions that
consist of both words and music, or music only (note that lyrics only
fall into the literary works category);
Artistic Works - Paintings,
drawings, maps, photographs, sculptures and architectural works.
Keep in mind that copyright also applies to all
kinds of recordings, such as records, cassettes, and compact discs,
which are called "mechanical contrivances" in the Copyright
Act. There is a separate copyright for the musical work, for example,
a song, and for the device, such as a cassette that produces the song.
Separate protection exists because the song and the sound recording
are considered to be two different works.
The word original is key
in defining a work that qualifies for copyright protection. Naturally,
you cannot obtain a copyright for someone else's creation. Originality
can be tricky to determine, however, and many court cases revolve
around the question of whether a work has been copied, even in part,
from somebody else's work.
Copyright means the sole right to produce or
reproduce a work, or a substantial part of it in any form. It includes
the right to perform the work, or any substantial part of it, or in
the case of a lecture, to deliver it; if the work is unpublished, it
includes the right to publish it, or any substantial part of it.
Copyright Includes the Sole Right To:
Produce, reproduce, perform or publish any translation of the
Convert a dramatic work into a novel or other non-dramatic work;
Convert a novel, or non-dramatic work or an artistic work into a
dramatic work by way of performance in public or otherwise;
Make a sound recording of a literary, dramatic or musical work;
Reproduce adapt, publicly present a work by Cinematography;
communicate the work by telecommunication;
Represent an artistic work created after June 7, 1988, at a
In the case of a computer program that can be reproduced in the
ordinary course of its use, or a sound recording, to rent it out;
Authorize any such acts.
Copyrights vs trademarks, patents, industrial
designs and integrated circuit topographies.
People often confuse copyrights with other forms
of intellectual property, particularly trade marks, patents,
industrial designs and integrated circuit topographies.
Trademarks - are used to
distinguish the goods or services of one person or company from
those of another. Slogans, names of products, distinctive packages,
or unique product shapes are all examples of features that are
eligible for registration as trademarks. Sometimes, one aspect of a
work may be subject to copyright protection, and another aspect may
be covered by trademark law. For example, if you created a new board
game, he may enjoy a copyright on the artwork of the game board and
a trademark, for the game's title.
Patents - protect new and useful
inventions such as processes, equipment, and manufacturing
techniques. They do not cover any artistic or aesthetic qualities of
an article. Unlike copyrights, patents can only be obtained by
Industrial designs - are
protected for their original shape pattern or ornamentation used to
adorn a useful manufactured article. The artwork of your client's
game board may be subject to copyright protection. Industrial design
protection might be available for the board itself. Like patents,
designs are obtained only by registration.
Integrated circuit topographies
- are protected upon registration. Protection is for the topography
of an integrated circuit product, which is a manufactured device
made up of a series of layers of semiconductors, metals, insulators
and other materials. The three dimensional configuration is a
"topography". The original design of the topography is
When Copyright Does not Apply
Titles, names and short word combinations are
usually not protected by copyright. A "work" for copyright
purposes must be something more substantial. However, if a title is
original and distinctive, it is protected as part of the work it
Copyright is restricted to the expression of an
idea; it does not extend to the idea itself. You may have a brilliant
idea for an advertising campaign, but until the script is actually
written, or the advertisements purchased, there is no copyright
protection. In the case of a game, it is not possible to protect the
idea of the game, that is, the way the game is played, but the
language in which the rules are written would be protected as a
Other items which are not protected by copyright
include names or slogans; short phrases and most titles, methods of
procedure, such as a method of teaching or sculpting, etc.; plots,
characters, or factual information. In the case of a magazine article
including factual information, it is the expression of the information
that is protected, and not the facts. Facts, ideas and news are all
considered part of the public domain, that is, they are the property
of everyone. Note also that you cannot hold a copyright for a work
that is in the public domain. However, you can adapt or translate such
a work, and hold a copyright of an adaptation or translation.
The reporting of any event in which the public has
a right to attend, unless the event is by invitation only, is deemed
to be in the public domain. Conversations that are established to be
confidential or off the record are the property of the giver of the
material and not part of the public domain.
When Copyright Applies
||Does not apply to
||The title of the song
||The idea or plot
||A method of staging a play
|A magazine Article
||Hamlet - or any work in the Public domain
||The facts in an article
||The name of the software program
A copyright gives you the sole
right to produce or reproduce his work, through publication,
performances and so on, or to authorize such activities. Anyone who
does such things without permission is infringing, that is, violating,
your rights. Naturally, if you publishes, performs or copy anyone
else's work without their permission, you are infringing their rights.
One specific form of infringement is plagiarism.
This is copying someone else's work and claiming it as your own. An
obvious example would be taking a novel someone else wrote and
publishing it under your own name (or pen name). Plagiarism can also
entail using a substantial part of someone else's work. An example
would be copying a novel, and simply changing the title and names of
the characters. Ironically you do not own your life story. Any
information about you that is in the public domain can be the subject
of a book about you without consent.
Some activities, if carried out in private, are not
considered infringement. For example, if you give a private
performance of someone else's song or plays in your own home, this
would not be infringement. On the other hand, making a copy of a video
cassette movie protected by copyright is infringement, even if you
only watches it at home.
People such as critics, reviewers
and researchers often quote works by other authors in articles, books,
and so on. They are not necessarily infringing copyright. The
Copyright Act provides that any "fair dealing" with a work
for purposes of private study or research, or for criticism, review or
newspaper summary, is not infringement. However, in the case of
criticism, review, or newspaper summary, the user is required to give
the source and authors name, if known.
The line between fair dealing and infringement is a
thin one. There are no guidelines that define the number of words or
passages that can be used without permission from the author. Only the
courts can rule whether fair dealing or infringement is involved.
Examples of infringement:
- Reprinting an instruction manual or users manual without the
copyright owner's permission.
- Playing music of others as part of your advertisement.
- Giving a public performance of copyright play without permission
- Photocopying information for distribution.
- Quoting a few lines of the article in a research paper (fair
- Playing records at home
- Giving public performance of a play by Shakespeare (no copyright
- Gaining permission from the author and paying him or her a fee
For a complete list of exceptions to infringement,
refer to the Copyright Act.
Automatic Protection (for Canadian and foreign works)
When you create an original work,
you will have copyright protection provided that, at the time of
creation, you were:
- A Canadian citizen or British subject, or
- A resident within Her Majesty's Realms and Territories, or
- A citizen or subject of, or a person ordinarily resident in, a
Berne Copyright convention country, or a Universal Copyright
convention country, or
- A citizen or subject of any country to which the Minister has
extended protection by notice in the Canada Gazette.
You would also obtain automatic copyright if your
work was first published in one of the above countries, even if he was
not a citizen or subject of Canada or of one of those countries.
In short virtually everyone living in Canada can
enjoy the benefits of automatic copyright protection. In addition,
Canadians are protected in most foreign countries since most belong to
one of two international treaties the Berne Copyright Convention or
the Universal Copyright Convention. Citizens of member countries,
enjoy the benefits of Canadian copyright laws, and Canada also extends
protection to certain other member countries by way of notice in the
Canada Gazette. Sound recordings, are not covered under the copyright
treaties, but Canada does extend protection for sound recordings to
citizens of member countries. There is quite a variation
internationally as to the nature of the protection given to sound
The author is normally the person
who creates the work. See the discussion Authorship later in
this guide under "Registration of Copyright".
Generally, if you are the creator
of the work you own the copyright. However, if you create a work in
the course of employment, the copyright belongs to your employer
unless there is an agreement to the contrary. Similarly, if a person
commissions a photograph, portrait, engraving or print, the person
ordering the work, in exchange for valuable consideration, is the
first owner of copyright unless there is an agreement to the contrary.
Also, you may legally transfer rights to someone else, in which case
that person owns the copyright.
Copyright usually exists for the
life of the author, the remainder of the calendar year in which the
author dies, and for 50 years following the end of that calendar year.
Therefore, protection will expire on December 31st of the 50th year,
after which the work becomes part of the public domain and anyone can
use it. For example, Shakespeare's plays are part of the public
domain; everyone has an equal right to produce or publish them.
However, there are certain exceptions to the
general rule of the life of the author plus 50 years. These are:
- Three types of works, i.e., photographs, certain cinematography,
and sound recordings where protection is based on the date of
creation or publication, not the life of the author;
- Works of Crown copyright;
- Certain special rules relating to works which are normally
protected for the life of the author plus 50 years,
Photographs - The copyright exists
for the remainder of the calendar year of the making of the initial
negative or Photo, or, where there was no negative or other plate, the
making of the initial photograph, and 50 years thereafter.
Certain cinematographic works -
Films and videos made since 1944 which do not have an original
arrangement, acting form or combination of incidents (i.e., most home
videos) are protected for the remainder of the calendar year of first
publication and for 50 years following the end of that calendar year.
However, if they were not published within 50 years following the end
of the calendar year of their making, copyright lasts for 50 year
following the end of the calendar year of their making. (In other
words, if a film or video is published within 50 years of its making,
it is protected for 50 years from the date of publication. If it is
not published within that 50 year period, it is protected for 50 years
from the date of making.) Films and videos of this type that were made
before 1944 were protected for 50 years from the date of making. Films
and videos which have an original arrangement, acting from or
combination of incidents have always been protected for the life of
the author plus 50 years.
Sound Recordings - Copyright for
audio cassettes, recordings and similar devices, known as mechanical
contrivances, lasts for the remainder of the calendar year of the
making of the initial plate (master recording, tape, etc.) and 50
years after that.
Works of Crown Copyright - These
are works created for or published by the Crown, i.e., government
publications. Copyright in these works lasts for the remainder of the
calendar year in which the work was first published, and for 50 years
after that. Copyright in unpublished works is perpetual.
Rules - The following rules apply
only to works which are normally protected for the life of the author
plus 50 years. These rules do not apply to the works in groups above,
but they apply to all earlier works.
- Joint authorship - Copyright exists for the life of the
author who dies last and 50 years following the end of that
- Author unknown - In the case of a work where the
identity of the author is unknown, the copyright subsists for
whichever of the following terms ends earliest: i) the remainder
of the calendar year of the first publication of the work and a
period of 50 years after that, or ii) the remainder of the
calendar year of the making of the work and 75 years after that.
- Posthumous works - These are works which have not been
published (or, for certain types of works, have not been published
or performed or delivered in public) during the lifetime of the
author. The copyright in these works exists from the date of
publication, performance or delivery in public, whichever may
first happen, until the end of that calendar year and 50 years
- Unpublished works - Works which have never been
published (or, for certain types of works, have never been
published nor performed or delivered in public) have unlimited
Even if an owner sells his
copyright to someone else, he still retains what are called
"moral rights". This means that no one, including the person
who owns the copyright, is allowed to distort, mutilate or otherwise
modify your work in any way that is prejudicial to your honour or
reputation. Your name must also be associated with the work as its
author, if reasonable in the circumstances. In addition, your work may
not be used in association with a product, service, cause or
institution in a way that is prejudicial to your honour or reputation
without your permission.
Graphic Artists - This group of
individuals is responsible for the majority of the creative genius in
use by today's' business community. The decision of a business owner
to use such works without first obtaining title is the single most
stupid act a business person can undertake.
Following are some situations which may infringe
the authors moral rights.
Example 1: You sold the copyright of a
song to a certain publisher who converts the music into a commercial
jingle without permission.
Example 2: You sold the copyright for a
novel to a publisher who decides to give it a happy ending, instead of
the tragedy that you wrote.
You cannot sell or transfer moral rights to anyone
else, but you can waive them when you sell or transfer the copyright,
or at a later date. A contract of sale or transfer may include a
waiver clause. Moral rights exist for the same length of time as
copyright, that is, for the lifetime of the author plus 50 years more,
and pass to the heirs of the author, even if theydo not inherit
ownership of the copyright itself.
REGISTRATION OF COPYRIGHT
In this Section we will discuss.
- The Benefits
- How to Register
- Registration Fees
- What the Registration Covers
- Indicating Copyright
An artist does not have to register
his copyright to have protection. However, when he registers he will
receive a certificate which can be used to his advantage in the event
that his work is infringed.
A certificate of registration is evidence that an
artists work is protected by copyright and that he, the person
registered, is the owner. In the event of a legal dispute, you do not
have to prove ownership; the onus is on his opponent to disprove it.
However, registration is no guarantee against
infringement. An artist will have to take legal action on his own if
he believes his rights have been violated. Also, registration is no
guarantee that his claim of ownership will eventually be recognized as
legitimate. Note also that the Copyright Office does not check to
ensure that an artists work is indeed original, as was his claim.
Verification of claims can only be done through a Court of law.
How to register
You register a copyright by
completing a simple application form and sending it to the Copyright
Office, along with the appropriate fee. You do not send a copy of your
work along with the application. The Copyright Office does not review
or assess works in any way, nor does the Office check to see whether
the title of your work has already been used. Many works may appear
with the same title, but if each work has been created independently,
each will have its own copyright protection. A sample of a copyright
application is included in chapter eleven.
Please note, however, that you may need to send
copies of your work to the National Library of Canada. Under the
National Library Act, two copies of every book published in Canada,
and a copy of every sound recording manufactured in Canada that has
some Canadian content, must be sent to the National Library within one
week of publication. (Your publisher may have already made these
arrangements.) For more information on this, contact:
Legal Deposit National Library of Canada
395 Wellington Street
type "Legal Deposit" in the Site Search field
Telephone: (819) 997-9565
When an application form is received in the
Copyright Office, it is reviewed to make sure it was completed
properly. If necessary, suggestions for changes are made, the relevant
information is entered into a data base and a registration certificate
Once a registration has issued, the Copyright
Office has the authority to make small corrections, such as the
removal of clerical errors made in preparing an application or a
registration document. However, only the Federal Court of Canada can
Authorize substantial changes.
Since duration of a copyright is
usually based on an author's lifetime, it is important for the
Copyright Office to know the author's name.
If you are the creator of a work (e.g., writer,
artist, composer, playwright or programmer) you are considered its
author. In most cases, therefore, you should insert your name and
address in the relevant section of the copyright application form. If
the work was created by an employee of yours the employee's name
should appear on the form as author (even though you own the
copyright). If there are two authors of the same work, give the names
and addresses of both. If there are many contributing authors, all
their names and addresses should be given. However, if the work was
created by many people under the direction or an editor-in-chief, that
persons name may be given as author.
The author of most types of works is the individual
who created the work. For all works normally protected for the life of
the author plus 50 years (ie., literary works, musical works) the
author must be an individual as opposed to a corporation.
However, for three types of works, photographs,
certain cinematographic works, and sound recordings, there are special
rules defining who the author is. For these types of works, the author
may be either an individual or a corporation. The author of a
photograph is the person who owned the negative or original photograph
(if there was no negative, as in Polaroid or electronic photography)
at the time it was made. For cinematographic works made prior to
January 1, 1994 which do not have an original arrangement, acting form
or combination of incidents (i.e., most home videos) the author is the
person who owned the negative or original video tape at the time it
was made. For cinematographies made on or after January 1, 1994, there
is no special rule and the author is simply the person who created the
work. For sound recordings made prior to January 1, 1994, the author
is the person who owned the master tape or original recording at the
time it was made. The author of a sound recording made on or after
January 1, 1994 is the person by whom the arrangements necessary for
the making of the sound recording were undertaken.
When deciding who the author of a work is, you must
use the rule which applied at the time the work was created regardless
of when the work is registered.
The persons authorized to sign the copyright
application form are:
- You (the applicant) or his agent;
- A partner, in the case of a firm
- A director, secretary or other principal officer in the case of
a corporation; or
- Your heirs or legal representatives. (An authors work is part of
his or her estate, and the heirs or successors may register a
copyright if this has not been done before the author's death.)
Some authors prefer to use a nomdeplume, or pen
name, rather than their real names on their published works. You may
include this nomdeplume on an application for registration, but you
must also give the full legal name. This is necessary because, without
his legal name, it would be difficult to determine the full duration
of the copyright, i.e., your lifetime plus 50 years.
Nature of the work - A artist will
have to include on the application which category his work fits into;
literary, artistic, musical, dramatic, or a combination of these, or
mechanical contrivance. You will also have to indicate whether his
work is published or unpublished. A work is considered published when
copies of it have been issued to the public. Also, the construction of
an architectural work and the incorporation of an artistic work into
an architectural work constitute publication.
The following do not constitute publication: The
performance in public of a literary, dramatic or musical work, the
delivery in public of a lecture, the communication of a work to the
public by telecommunication, or the exhibition in public of an
Length of the registration - The
registration process takes about eight weeks if the Copyright Office
staff reviews your application and accepts it without further
questions. If amendments are required, the processing time may be
longer. Registration occurs once any amendments have been made and the
application is accepted. The Office then issues a certificate of
The applicant must pay the
prescribed fee when applying for registration of copyright. That fee
covers the review of his application and, if it is acceptable, a
registration certificate will be issued at no additional charge.
However, if his application is withdrawn or refused, the fee is not
refunded. Send your payment with the completed application form.
AS OF OCTOBER 1997 THE GOVERNMENT FEE TO REGISTER A
COPYRIGHT WAS ONLY $65.00.
Registration is valid for as long as the copyright
for the work exists. Once you register copyright, you do not have to
pay any additional fees to maintain or renew it. If you register the
copyright of an unpublished work, you do not have to register again
What the Registration Covers
Normally, each song, book,
recording, and so forth is considered a separate work and requires a
separate application and fee. There is no blanket type registration
for several works by one author. However, if you are registering a
book of poems, songs, photographs, etc., you may register the book as
one work. Also note, that if the work is published in a series of
parts, such as an encyclopedia, one registration covers all the parts
in the series.
There is no requirement to mark
your work under the Copyright Act. The Universal Copyright Convention
provides for marking with a small "c" in a circle, the name
of the copyright owner and the year of first publication, for example,
©Jane Doe, 2005.
Although not obligatory such marking can serve as a
reminder to others of a copyright as well as providing the name of the
owner. Some countries that are members of the Universal Copyright
Convention but not of the Berne Copyright Convention, require such
marking. You may use this notice even if you have not registered his
Policing your copyright - The
Copyright Office is not responsible for ensuring your copyright is not
being infringed. This is the artists responsibility. Suppose a person
publishes literature very much like yours simply disguising the
plagiarism with a few name changes. It is up to you to launch legal
action. It will then be up to the courts to decide whether indeed you
have been wronged. However, the copyright act does contain criminal
remedies which apply to certain types of serious infringements or
Agreements and licenses - As the
owner of a copyright you may confer rights to produce, or reproduce, a
creative work to other people through a legal agreement. There are
many kinds of agreements, with the main types being assignments and
An assignment occurs when you transfers part, or
all, rights to another party. The assignment may be for the whole term
of the copyright, or for a certain part of it either generally or
subject to territorial limitations. In this case you have given up
rights for a certain period, or completely. You do not have to
register his assignment with the Copyright office, but it is wise to
do so. Suppose the original copyright owner does assign the rights to
two separate parties for the same work. If one party does not register
its assignment, the assignment that was registered will be considered
the valid one.
A license gives someone else permission to use your
work for certain purposes and under certain conditions, but you still
retain ownership. You have not given up rights. To be valid, an
assignment or license must be in writing and signed by the owner.
Assignments and licenses, which are considered "grants of
interest" in a copyright, may be registered with the Copyright
Office. All you have to do is send in the original agreement or a
certified copy of it, along with the prescribed fee (see the fee
schedule). Registration takes about six weeks. The Copyright Office
will retain a copy and return the original along with a certificate of
Royalties - Royalties are sums
paid to copyright owners as commission for sales of their works or
permission to use them. For example, a composer is entitled to a
royalty every time a radio station publicly plays his or her record.
You do not have to pay royalties for a private performance, such as
playing music at home. But you do if you are holding a dance or
concert, since this is considered a public performance. In many cases,
the concert hall, hotel, or other facility will have already made the
necessary arrangements for paying royalties.
Tariffs - Tariffs are set fees
that users must pay for using certain copyright material. For example,
cable companies pay tariffs for permission to transmit programs. Both
tariffs and royalties account for a great many business transactions
every day. To help regulate this complex and growing sector of the
economy, the government has set up public tribunal known as the
Copyright Board. This Board reviews and approves fees set by the
Canadian performing rights society SOCAN, the Society of composers,
Authors, and Musical Publishers of Canada, sets tariffs for cable
retransmissions and arbitrates tariffs if there is a disagreement
between a licensing body and another party.
In addition, the Board grants licenses for the use
of published works in certain cases. For example, if you wanted to use
a published work, but can not locate the owner he could apply to the
Copyright Board for permission. You would most likely have to pay a
fee which would be kept by the Board on behalf of the owner until that
person can eventually be located. For more information contact: The
Secretary of the Copyright Board of Canada 56 Sparks Street, Suite 800
Ottawa, Ontario K1A 0C9 Tel.: (613) 952-8621 Fax: (613) 952-8630
Collectives - Sometimes people
might find it inconvenient or difficult to administer the rights they
hold through the copyright system. In such cases, they might choose to
join a collective. That is, an organization that collects royalties on
behalf of its members. Collectives, also known as licensing bodies,
grant permission to people to use works owned by their members and
determine the conditions under which those works can be used. The
organization may also launch a civil suit on behalf of a member in the
case of copyright infringement. There is a wide range of collectives
covering such areas as television and radio broadcasts, sound
recordings, reprography (photocopying), performances, video recordings
and visual arts.
One example is a reprography collective called
CANCOPY which negotiates licenses with users, such as schools and
organizations, and collects fees on behalf of copyright owners for
permission to photocopy their works. Suppose you is the owner of the
copyright in a history of Canada: membership in the collective allows
it to grant permission to teachers; for example, to copy chapters of
your client's book and collect fees on his behalf.
Remember that you may not make photocopies of
material protected by copyright (other than for purpose of fair
dealing) without permission, nor may a library. To seek permission,
contact the owner or CANCOPY, if the owner is a member at; CANCOPY 214
King St. West, Suite 312, Toronto, Ontario M5H 3S6 Tel.: (416)
971-9882 Fax: (416) 971-5633. Your client may obtain a list of some
other Canadian collectives through the Copyright Office or the
Performing rights societies - A
performing rights society is a collective that deals with musical
works, collecting royalties on behalf of composers, lyricists,
songwriters and MUSIC publishers for the public performance or
broadcasting of their music. There is currently only one such
organization in Canada. SOCAN, the Society of Composers, Authors and
Music Publishers of Canada. SOCAN 41 Valleybrook Drive Don Mills,
Ontario M5B 2S6 Tel.: (416) 445-8700 Fax (416) 445-7108
WHAT BUSINESS'S SHOULD COPYRIGHT
The single least expensive form of
protection for intellectual property is copyright. It is the one form
of protection that every business person should be acquainted with.
Advertisements - All printed
displays used to convey your business message to the buying public. If
you hire an advertising agency to produce advertising copy then the
copy should be the subject of a copyright registration.
Annual Reports of a Public Company
- These reports are not considered to be in the public domain. Even
though the securities commission may require a company to serve public
notice of the affairs of the company that does not give the reader of
the report any right to copy or reproduce it.
Computer Software - When you hire
an outside programmer, or assign the task to an employee, to develop
software specific to the operation of the business, or the development
of any macros for use in the day to day operation, you should insure
that the time and money you have invested into this work does not fall
into the hands of someone else the programmer may work for.
Customer or mailing lists - Once
material is stored on a computer, such as lists, it is a literary work
and can not be copied.
Drawings - All detailed drawings
depicting how a product is used, installed or placed is material that
is the proper subject of a copyright registration.
Instruction or User Manuals - Any
manual on how to use or install products, the benefits of use or how
to participate in an event or game is the proper subject of a
Literature - When used to promote
a product or business is both an artistic and literary work that is
the proper subject of a registration.
Logo's - Any and all characters,
caricatures, or logos used in association with your business and
described as being an artistic creation should be protected.
Newsletters - When circulated to
staff or clients often contain material that would be of interest to
others. This literary work is the proper subject of a copyright
registration as the material is specific to promoting of the business
to its customers.
Price Lists - Every competitor
wants your price lists. You can prevent the wide spread distribution
of price lists by competitors by registration of same as a copyright.
PROTECTION WITHOUT REGISTRATION
Every business person can protect
his or her self by introducing a few simple procedures into there
existing business practice. First! He must begin to service public
notice of his claim to ownership. He can achieve this by placing a
copyright notice on everything that he distributes. This includes all
the items that would be the subject of a copyright registration. In
addition we strongly suggest he adopt polices whereby he enters into
simple one page agreements with everyone with whom he comes into
contact. They include;
Employees - Under provincial
statutes most, if not all the work generated by an employee is
considered to be the property of the employer. However, it is
incumbent upon the employer to prove that the artistic works were
created in the normal course of employment. Therefore an employment
contract that clearly spells out an employees duties and confirms the
fact that any intellectual property that is created by the employee
during the term of his employment is the employers property unless so
stated in writing is a must.
Suppliers - All suppliers should
sign agreements wherein they confirm that the exact composition of any
material you purchase from them is considered to be confidential and
not an item to be discussed with anyone.
Directors - Directors of a
corporation are most often not employees. However, they bring to the
corporation, creative skills that are presented for the use of the
corporation. Such directors need to sign agreements wherein they
confirm that the creative material they supply to a corporation is an
asset of the corporation for which they have no claim at law.
Shareholders - Almost all
shareholders of new corporations bring to the corporation a collection
of assets that in most cases consist of their skills. These skills are
most often transmitted to employees who carry on work based on such
skills. These shareholders need to enter into agreements with the
corporation that confirm the skills recognized as assets are the
property of the corporation, once shares in the corporation are
Outside Consultants - When a
corporation hires an outside consultant to create business plans,
marketing plans, proposals or software or any other copyrightable
material they should sign an agreement confirming the authors rights
in the material are transferred to the corporation. Failure to have
such an agreement executed could result in the author making copies or
variations of the material available to others.
Graphic Artists - Are by
definition creators of new intellectual property. They are artists who
provide you with specific works of art. You may decide you do not like
the work they create. However, do not, under an circumstances, use the
material they have created without clarification as to the ownership
of the material. Once you take position of the artistic works, make
certain you have an assignment of the copyright or you have paid for
something that you can not use.
Advertising Agents - This group of
artists falls into the same category as a graphic artists. The
material they supply can be classified as a literary work.
Customers - When you properly
serve public notice with every item sold, the public can not claim
ignorance when they infringe on rights. A copyright notice should be
attached to every sold item.
COMMON QUESTIONS ABOUT COPYRIGHT
Q) What is a copyright?
A) A copyright is sole exclusive right to copy a creative work or
allow someone else to do so. It includes the sole right to publish,
produce or reproduce, or perform a work in public, translate a work,
communicate a work to the public by telecommunication, to exhibit an
artistic work in public under certain conditions, and in some cases,
rent the work.
Q) To what does copyright apply?
A) Copyright applies to all original literary, dramatic, musical and
artistic works. These include books, other writings, music,
sculptures, paintings, photographs, films, plays, television and radio
programs, and computer programs. Copyright also applies to sound
recordings which such as records cassettes and tapes.
Q) What is not protected by Copyright?
A) Themes, ideas, most titles, names, catch phrases and other short
word combinations of no real substance.
Q) Who owns the copyright?
A) Generally, the owner of the copyright is: a) the creator of the
work; or b) the employer, if the work was created in the course of
employment unless there is an agreement to the contrary; c) the person
who commissions a photograph, portrait, engraving or print for
valuable consideration employment unless there is an agreement to the
contrary; or d) some other party, if the original owner has
transferred his or her rights.
Q) How do I obtain copyright?
A) You acquires copyright automatically when he creates an original
Q) Do I have to do anything to be protected?
A) No. Since you obtained copyright automatically, he is automatically
protected by law. However, it is still a good idea to register your
client's copyright and to indicate a notice of copyright on his works.
Q) What are the benefits of copyright registration?
A) Registration gives you a certificate stating that he is the
copyright owner. He can use this certificate in court to establish
ownership. (The onus is on your client's opponent to prove that you
does not own the copyright.)
Q) How do I register a copyright?
A) You file an application with the Copyright Office, along with a
prescribed fee. The application form and instructions for filling it
out are available from the Copyright Office. The registration process
normally takes six to eight weeks. The fee covers review of your
client's application, registration, and his official certificate.
Q) Once I have registered, do I have to pay further
fees to maintain my copyright?
A) No. The registration fee is a one time expense.
Q) How long does copyright last?
A) Generally, copyright in Canada exists for the life of the author
plus 50 years following his or her death. There are some exceptions.
Please refer to the section called "Duration" in the part
"Copyright Protection". Copyright protection always expires
on December 31 of the last calendar year of protection.
Q) Does the Copyright office check to ensure that
my claim of copyright is legitimate?
A) No, the Office does not verify ownership. Only the courts can do
Q) Do I need to mark my work with a notice of
A) This isn't necessary to be protected in Canada, however, your
client must mark his work to be protected in some other countries.
Even though it is not always required, marking is useful since it
serves as a general reminder to everyone that the work is protected by
Q) Is the copyright of a Canadian author valid in
A) Yes, as long as the country in question belongs to either the Berne
Copyright Convention or the Universal Copyright Convention. These
conventions include most countries in the world.
Q) Is the copyright of a foreign author valid in
A) Yes. Please refer to the section entitled "Automatic
Protection for Canadian and foreign works".
Q) Should I send copies of my work with my
A) No, copies aren't required.
Q) What is the difference between an assignment and
A) An assignment is a transfer of ownership of the copyright from one
party to another. A license is a contract which, for specific
purposes, allows someone to use a work temporarily.
Q) What is copyright infringement?
A) Unauthorized use of copyright material. Plagiarism - passing off
someone else's work as your own is a form of infringement.
Q) What is fair dealing?
A) Use or reproduction of a work for private study, research,
criticism, review or newspaper summary.
Q) Will the Copyright Office prevent others from
infringing my rights?
A) No. The responsibility for policing your client's copyright rests
with the owner.
Q) Can libraries or educational institutions make
multiple copies of parts of books or articles for student use?
A) No. The making of multiple copies requires the consent of the
copyright owner. This consent may be obtained through a licensing
agreement with a photocopying collective. However, the Copyright Act
does allow the copying by individuals of parts of works for private
study or research. Such copying should be minimal. This exception
falls within the fair dealing section of the Act.