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August 28, 2014

WHAT IS PROTECTED BY COPYRIGHT?

Original literary, dramatic, musical, and artistic works. That is, an original expression (of an idea) fixed in some (usually, tangible) form: fixed or unfixed performances of a work by a performer; sound recordings, including sound recordings of a performance; broadcasts (communication signals).

Canada also provides limited protection for moral rights: the right to the integrity of the work; the right to be associated with the work as its author.

Canada also has limited protection for moral rights in respect of live aural performances and performances fixed in a sound recording: the right to the integrity of the performance; the right to be associated with the performance as its performer.

CLASSES OF PROTECTED OBJECTS

Classes of protected objects: books; songs; films; videos; photographs; artistic works; illustrations; paintings; drawings; maps; articles; marketing materials, pamphlets and other writings; user manuals; website contents and look & feel; computer programs, including HTML; javascript and PHP code; tables; lectures; operas and other musical works; dramatic or dramatico-musical works; plays; choreography; compilations; translations; charts; plans; engravings; sculptures; architecture; works of artistic craftsmanship; sketches; performances; sound recordings (phonograms); broadcasts; etc.

EXAMPLES OF WHAT CAN BE PROTECTED BY COPYRIGHT

The following are some examples of what can be protected by copyright: Ayn Rand’s novel Atlas Shrugged; Rambo the movie; Salvador Dali’s paintings; architectural plans for the CN Tower; computer code (but not the underlying idea) for Microsoft Windows operating system; computer code for Facebook; instructions manual for iPhone; the Last Command album by W.A.S.P. (separate copyrights in music, lyrics, songs as a whole, compilation of songs as a whole, cover artwork; video for the songs “Blind In Texas” and “Wild Child” (including separate copyrights for performances of the songs, sound recordings of the songs); photograph of Einstein with his tongue out; any and each live performance of “I Wanna Be Somebody” by W.A.S.P.; sound recording of Michael Jackson’s “Thriller”; broadcasts of the Olympics; etc.

WHAT IS NEEDED TO GET PROTECTION?

The work must be minimally original and must be expressed in some form capable of being perceived by others. The performance, sound recording, and broadcast must be minimally original and must be expressed in some form capable of being perceived by others.

WHAT COPYRIGHT DOES NOT PROTECT

Some examples of what copyright does not protect: ideas; plots; facts; methods; most short phrases and slogans; underlying works; general style of performance; processes; algorithms; features of shape, configuration, patterning or ornamentation as they are applied to useful mass-produced article (manufactured in 50 or more copies); professional secrets of sound recording.

COPYRIGHT IS ENFORCEABLE AGAINST?

Anyone who uses a work, performance, phonogram, or broadcast without the copyright owner’s consent.

WHAT CONSTITUTES USE?

WHAT ARE OTHERS PROHIBITED FROM DOING?

Simply put, copyright prohibits others from copying the expression. In greater detail: it prohibits others from doing anything with the work or a substantial part of the work that only the copyright owner has the right to do, unless the copyright owner gives consent.

This refers to the exclusive right of the copyright owner to do or authorize others to do the following: publishing an unpublished work; producing or reproducing the work in any material form whatever (which includes making a single copy); performing the work in public; creating and using any translation of the work; converting or adapting a work into a different form; presenting the work at a public exhibition; communicating the work to the public by telecommunication (which includes sending it over the internet); renting out the work (in case of computer programs or recorded musical works); selling or otherwise distributing an infringing copy of the work (even if the infringing copy was made by someone else).

With respect to performances: recording previously unrecorded performances; broadcasting previously unrecorded performances; making copies of unauthorized recordings of the performance; renting out sound recordings of the performance.

With respect to sound recordings: publishing unpublished sound recordings; making copies of the sound recording; renting out of the sound recording.

With respect to broadcasts: recording broadcasts; making copies of unauthorized recordings of a broadcast; authorizing simultaneous retransmissions of the broadcast; demonstrating TV broadcasts in a place open to the public for a fee.

WHERE IS THE OWNER / AUTHOR / INVENTOR PROTECTED?

Each country protects separately, but protection is almost automatically worldwide thanks to international treaties (Berne Convention, WCT, Rome Convention, WPPT, TRIPS).

LENGTH OF PROTECTION

In Canada, the general term of protection of the copyright is the life of the author (or the last surviving coauthor in case of co-authorship) of a work plus 50 years after his death.

In most other countries, the general term of protection of copyright is the life of the last surviving author or coauthor plus 70 years.

In Canada, the term of protection for neighbouring rights is 50 years after: unfixed performance takes place; fixation of the performance; fixation of the sound recording; broadcast takes place.

These initial periods are final and cannot be extended.

WHO OWNS THE RIGHT?

WHO SHOULD APPLY FOR REGISTRATION OF THE RIGHT?

The first owner of copyright in a work is usually the individual who created the work (the author).

The first owner of the copyright in a performer’s performance is the performer.

The first owner of copyright in a sound recording is the maker of the sound recording.

The first owner of copyright in a communication signal is the broadcaster that broadcasts it.

The most notable exception to this rule pertains to works created during the course of employment, in which case the default rule is that it is the author’s employer who is automatically the first owner of copyright.

Copyright may be transferred to any other person or company.

As to moral rights, as in most other countries, they cannot be assigned to third parties in Canada. However, in Canada, it is possible to waive moral rights.

DO AUTHORS / COPYRIGHT OWNERS HAVE ANY RIGHTS IF THEY DO NOT APPLY FOR PROTECTION?

Yes.

Generally, copyright is secured when the work is created. However, there are significant benefits obtained by registration

WHAT ARE THE BENEFITS OF REGISTERING COPYRIGHT?

Benefits of registering copyright: a registration certificate creates a presumption that the work is protected by copyright; a registration certificate creates a presumption that the performance, sound recording, or a broadcast is protected as a neighbouring right; a registration certificate creates a presumption of ownership of the work, performance, sound recording, or a broadcast; a registration certificate serves as evidence of ownership of the work, performance, sound recording, or a broadcast; a registration creates a presumption that the infringer was aware that the work is protected by copyright; a copyright owner may demand damages from an unaware defendant; in the U.S., a copyright owner may only claim statutory damages (that is, compensation that is not derived from what the plaintiff lost as the result of the infringement) for infringement of copyright, if the copyright has been registered; registration creates a presumption that the infringer was aware of the subsistence of copyright in the performance, sound recording or a broadcast; Copyright owner may demand damages from an unaware defendant.

HOW IS THE RIGHT ESTABLISHED?

Copyright emerges merely by virtue of a qualifying work being created.

Registration of copyright adds certain procedural rights and creates evidentiary presumptions, but is not required to claim that the work is protected by copyright. Copyright exists regardless of whether the work has been registered.

Neighbouring rights emerge merely by virtue of a qualifying performance, sound recording or broadcast being created.

Registration of copyright adds certain procedural rights and affords evidentiary presumptions, but is not a legal requirement for subsistence of the right itself.

DEFENCES AGAINST ACCUSATION OF COPYRIGHT INFRINGEMENT:

Copyright infringement defences: less than a substantial part of the work or other subject matter is used; work / other subject matter is no longer protected by copyright; plaintiff is not the copyright owner (wrong plaintiff); in the case of infringement of moral rights, plaintiff is not the author or performer (wrong plaintiff);; plaintiff granted the defendant a license; expiration of limitation period (3 years).

Canada also recognizes certain circumstances, in which unauthorized use of another’s work does not constitute an infringement. These circumstances form part of the so called fair dealing doctrine, which provides for the following exceptions from the general rule that protected works may only be used with the consent of the copyright owner: use for the purpose of research or private study; use for the purpose of criticism or review; use for the purpose of news reporting; certain uses by educational institutions; certain uses by libraries, archives, and museums; incidental use; certain uses by broadcasters; certain uses by persons with perceptual disabilities; use for the purpose of education; use for the purposes of parody or satire; creation of non-commercial, user-generated content; use by reproducing works for private purposes; use by recording programs for later listening or viewing; making backup copies; use to ensure interoperability of computer programs; and certain other exceptions.

AVAILABLE REMEDIES

Copyright remedies: injunction; damages (including exemplary and punitive damages); statutory damages from $500 to $20,000 for each work, performance, sound recording or broadcast if infringement is for commercial purposes; statutory damages from $100 to $5,000 for all works if infringement is for non-commercial purposes; statutory damages from $100 to $5,000 for all performances, sound recordings and broadcasts if infringement is for non-commercial purposes; accounting of profits; delivery up of infringing materials to the plaintiff.

WHEN CAN IT BE REGISTERED?

Because registration is not a prerequisite for existence of copyright, it can be registered at any time.

Registration after the infringement will not usually grant the plaintiff the presumptions otherwise made available by the registration.

HOW LONG DOES THE REGISTRATION TAKE?

2–4 weeks in Canada, unless the Copyright Office staff requests that the application be amended.

About 6 months in the U.S., unless the Copyright Office staff requests that the application be amended.

There are no mandatory maintenance fees.

GOVERNMENT FEES RELATING TO REGISTRATION

$50 per work / performance / sound recording / broadcast in Canada.

$35 per registration in the U.S.

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