Canadian copyright law provides authors and other creators the exclusive right to produce, reproduce, publish, or perform a work, or any significant portion of a work. There’s a lot of legal gobbledygook that can be downright confusing in Canadian copyright law. However, this is not an excuse not to know the basics, especially if you are someone who is creating – or are planning to create – original works.
We wanted to help highlight six interesting facts about Canadian copyright law. Things you may not know, or thought you knew but didn’t. Here’s our list.
1. You don’t have to ‘register’ your work in order to be protected by Canadian copyright law.
Copyright of a work in Canada exists automatically upon that work’s creation. You do not need to register. Canadian Copyright law does not require the official registration of your work in order to have that work protected.
Unless there’s a copyright assignment agreement assigning the copyright to someone else, the writer who created the work owns copyright to all of his or her work. That copyright extends for 50 years past the end of the calendar year in which the author dies. And, this copyright protection may extend beyond Canada to other countries. The only caveat is that the country in question must be covered by an international copyright convention, treaty, or organization (such as the World Intellectual Property Organization’s Copyright Treaty.)
Benefits of Registration
There are benefits of registration. A certificate of registration of copyright provides evidence that a copyright exists because it confirms that the registered individual (you) is the copyright owner. However, should you be subject to infringement, the certificate may not make it any easier for you to defend your copyright. It may, however, make it easier for those who wish to seek permission to use your copyrighted work.
2. Registering your copyright in Canada does not require submission of physical copies.
Don’t bother packaging up a hard copy of your beloved manuscript and shipping it off to the copyright office thinking you’re registering your work. It will be shipped right back to you – unopened. As a Canadian author you can also register your work with the U.S. Copyright Office, in which case a physical copy of the work is mandatory.
3. You don’t have to use the © symbol to be protected by copyright.
Canadian copyright law does not require you to mark your work with the © copyright symbol. You do not need to register your work with the Canadian copyright office in order to use the copyright symbol.
If you do use it, the format is: the symbol ©, followed by the copyright owner’s name, and the year of initial publication. It would look like this:
© Tom Earl Jones 2018
(There is differing advice around the proper construction of your copyright notice. In the US, the advice is copyright symbol-year-name, however relating to Canadian copyright law we found the advice above: copyright symbol-name-year.)
While it may not be necessary to use the symbol, I don’t see any reason why you wouldn’t. Let’s shout from the treetops that this original work is, indeed, under the protection of Canadian copyright law!
4. There is no “fair use” provision in Canadian copyright law.
That’s right. There is no ‘fair use’ provision in Canadian copyright law. ‘Fair use’ is a term used in the context of U.S. copyright law to cover third party use of excerpts (quotes) of copyrighted work. (We talk about this concept in our blog about US copyright law, which you can read here.)
There is, however, a ‘fair dealing’ provision in Canadian copyright law. Also sometimes referred to as ‘user’s right’ (as compared to an owner’s right), ‘fair dealing’ provides a statutory exception to copyright infringement. It applies to specific purposes under which a user may use portions of an original work without infringing upon copyright. Those purposes include: private study, research, criticism, education, news reporting, review, satire, and parody.
If one of these purposes applies to an intended use of select portions of your original work, the ‘fairness’ of this use can be determined by looking at how the use or intended use aligns with specific factors established by the Supreme Court of Canada.
The character of the dealing.
The character of the dealing refers to the way the user’s work has been dealt with. If you copy an excerpt of someone else’s copyrighted work, then widely distribute multiple copies, a court may consider that unfair. On the other hand, if you destroy the work immediately afterward, that may be considered fair use.
The purpose of the dealing.
Each specific case will be different. A court may determine copying is fair use even in some commercial uses. Or, even if the dealing falls under one of the allowable purposes, above, it could determine that a dealing is less fair. It depends on the circumstances.
The amount of the dealing.
How much of the original material is being used? Canadian copyright law doesn’t specify an amount, but considers an amount that is reasonably necessary. The key consideration under the ‘fair dealing’ provision will be whether the amount of copyrighted material used is reasonable and necessary. This applies whether you are using excerpts of someone else’s copyrighted work, or someone is excerpting yours.
Alternatives to the dealing.
Are there non-copyrighted alternatives available? This is a consideration for determining ‘fair dealing’. Could the criticism, for example, have been effective without reproducing portions of the copyrighted work? If the answer is yes, that could lead a court to decide against a finding of fairness.
Nature of the work.
Has the original copyrighted work being excerpted been published? Or is it unpublished? How widely available is the copyrighted work? This is one area where Canadian courts have ruled differently from courts in either the U.S. or the U.K. There is precedent from a 2004 case and a ruling by the Supreme Court of Canada that shifted the value away from protecting the time and effort of the original author to a balance between serving the public interest and rewarding authors for their efforts related to their intellectual property.
Effect of the dealing on the work.
This one is a big deal. You should consider this carefully as you decide whether to include excerpts of other’s copyrighted work. Does the dealing compete with the copied work? Is it a substitute for the copied work? A court in Canada would likely consider this ‘unfair’ if there was a detrimental affect on the copied work as a result of the copying.
5. No one polices or actively protects against copyright infringement.
The Canadian Intellectual Property Office is “not responsible for policing of checking on registered works and how people use them.” CIPO cannot guarantee that your copyright, registered or otherwise, won’t ever be challenged, infringed, or questioned.
6. Copyright is property with real value.
Copyright is actually a type of property under copyright law – in fact, it is “intellectual property”. You can sell, purchase, assign, or include copyright in your will to pass it on to your heirs.
Any type of creative work of an author, whether it is a nonfiction book, poem, helpful pamphlet, or other document, has intrinsic value. Monetization of some of these works, but not others, may be easy.
Regardless of the potential monetary value of a work, Canadian copyright law provides protection of all original creative works in accordance with the conditions established by the Canadian Copyright Act. The purpose of the Copyright Act is to protect the interest of copyright owners while encouraging creativity and fostering the free, but orderly, exchange of ideas.
Moving forward with enhanced copyright knowledge
Make better choices that advance your career as an author. Do this in part by understanding your rights to license, how to apply fair dealing provisions to a work, and the automatic protections you have to your intellectual property. Use this new knowledge about copyright law in Canada with confidence.
Oh, and yes, Canadian copyright covers this blog content.
© Ingenium Books 2018
Updated Note: Parliament completed its five-year review of the Canadian Copyright Act and issued a report, complete with 36 recommendations. If you like to geek out on this stuff as much as we do, you might be interested in a bit of further reading.