Skip to content | Skip to institutional links

Common menu bar links

Industry Canada
Programs and Services

A Guide to Copyrights: Copyright Protection

A Guide To Copyrights (PDF - 3.1 KB - 25 pages)

Please note : The publication A Guide to Copyrights is currently being updated to reflect recent changes to the regulations. A new version of this guide will soon be available. For more information and to receive these updates, please contact us. We apologize for the inconvenience.

What is a copyright?
What is covered by copyright?
Copyrights vs trade-marks, patents, industrial designs and integrated circuit topographies
When copyright does not apply
Infringement
Fair dealing and exceptions
Examples of infringement
Automatic protection for Canadian and foreign works
Authorship
Ownership
Duration
Moral rights

What is a copyright?

In the simplest terms, "copyright" means "the right to copy." Only the owner of copyright, very often the creator of the work, is allowed to produce or reproduce the work in question or to permit anyone else to do so. Suppose, for example, that you havewritten a novel. Copyright law rewards and protects your creative endeavour by giving you the sole right to publish or use your work in any number of ways. You may also choose not to publish your work and to prevent anyone else from doing so.

What is covered by copyright?

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, poems and other works consisting of text and 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 without music fall into the literary works category); and
artistic works: paintings, drawings, maps, photographs, sculptures and architectural 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.

performer's performance: performers such as actors, musicians, dancers and singers have copyrights in their performances;
communication signals: broadcasters have copyrights in the communications' signals that are broadcast;
sound recordings: makers of recordings, such as records, cassettes, and compact discs, which are called "sound recordings" in the Copyright Act, are also protected by copyright.

Keep in mind that there is a separate copyright for musical work, for example, a song, and for the device, such as a cassette, that contains the song. Separate protection exists because the song and the sound recording are considered two different works.

Copyright consists of legal rights attached to works and other subject matter. Which legal rights apply to which works or subject matter varies. In general, 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, and if the work is unpublished, it includes the right to publish it or any substantial part of it.

produce, reproduce, perform or publish any translation of the work;
convert a dramatic work into a novel or other non-dramatic work;
convert a novel, a 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 and publicly present a cinematographic work;
communicate the work by telecommunication;
present an artistic work created after June 7, 1988, at a public exhibition;
in the case of a computer program that can be reproduced in the ordinary course of its use to rent it out; and
to authorize any such acts.

in the case of a performer's performance which is not fixed, to communicate it by telecommunication and to make a fixation of the performance;
in the case of a performer's performance which is fixed with the performer's authorization, to make a reproduction of that fixation, or to reproduce a fixation that was not authorized by the performer, and to rent out a sound recording of the performance;
in the case of a sound recording, to publish, to reproduce and to rent out the sound recording;
in the case of a published sound recording the performer and the maker of the recording have a right to payment of "equitable remuneration" for its performance in public or its communication to the public by telecommunication;
in the case of a communication signal a broadcaster has the right to fix the signal, to reproduce any fixation of the signal that was made without the broadcaster's consent, to authorize another broadcaster to simultaneously retransmit the signal;
in the case of a television communication signal, to perform the signal in a place open to the public on payment of an entrance fee; and
to authorize any such acts.

Copyrights vs trade-marks, patents, industrial designs and integrated circuit topographies

People often confuse copyrights with other forms of intellectual property, including trade-marks, patents, industrial designs and integrated circuit topographies.

Trade-marks 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 trade-marks. Sometimes, one aspect of a work may be subject to copyright protection and another aspect may be covered by trade-mark law. For example, if you created a new board game, you might enjoy a copyright on the artwork applied to the face of the game board, the rules of the game and a trade-mark 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 registration.

Industrial designs are protected for their original shape, pattern, ornamentation or configuration (or any combination of these things) applied to a finished manufactured article. The artwork of your game board may be subject to copyright protection. Industrial design protection might be available for the board itself. Industrial design protection, for example, might be available for the shape of a table or the ornamentation on the handle of a spoon. An industrial design may be made by hand or machine. Like patents, industrial designs are obtained only by registration.

Integrated circuit topographies are protected upon registration. An integrated circuit product is a microchip. Protection is for the topography of an integrated circuit product which is a manufactured device made up of a series of layers of semi-conductors, metals, insulators and other materials. The three-dimensional configuration is a "topography." The original design of the topography is protected.

For more information about these forms of protection, contact us.

When copyright does not apply

Titles, names and short word combinations are usually not protected by copyright. A "work" or other "subject matter" 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 relates to.

You may have a brilliant idea for a mystery plot but until the script is actuallywritten, or the motion picture produced, 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 arewritten would be protected as a literary work. Copyright is restricted to the expression in a fixed manner (text, recording, drawing) of an idea; it does not extend to the idea itself.

Other items which are not protected by copyright include:

names or slogans;
short phrases and most titles;
methods, such as a method of teaching or sculpting, etc.;
plots or characters; and
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 everyone's property.

Note too, that you cannot hold a copyright for a work that is in the public domain. You can adapt or translate such a work and have a copyright for your adaptation or translation.

Copyright applies to:

a song
a novel
a play
a magazine article
a computer program

Copyright does not apply to:

the title for a song
the idea for a plot
a method of staging a play
Hamlet (a work in the public domain)
the facts in the article
the name of the program (this might be protected through a trade-mark registration)

Infringement

A copyright gives you the sole right to produce or reproduce your work, through publication, performances and so on, or to authorize such activities. Anyone who does such things without your permission is infringing, that is, violating, your rights. Naturally, if you publish, perform 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 that someone elsewrote 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.

Some activities, if done in private, are not considered infringement. For example, if you give a private performance of someone else's song, or play, in your own home, this would not be infringement. Making a copy of a musical tape for private use is not infringement because a royalty payment to the owners of the song rights has been paid when the blank audio tape was purchased. On the other hand, making a copy of a videocassette movie protected by copyright is infringement, even if you only watch it in your own home.

Fair dealing and exceptions

People such as critics, reviewers and researchers often quote works by other authors in articles, books, and so on. Are they infringing copyright? Not necessarily. The Copyright Act provides that any "fair dealing" with a work for purposes of private study or research, or for criticism, review or news reporting is not infringement. However, in the case of criticism, review, or news reporting, the user is required to give the source and the author's, performer's, sound recording maker's or broadcaster's 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. In addition to fair dealing, the Copyright Act has exceptions for different categories of users. One category is non-profit educational institutions. These are permitted to make copies and perform works and other subject matter protected by copyright, free of charge, in the classroom, subject to certain restrictions. Educational institutions are also permitted to make use of works protected by copyright if they are done on the premises of an educational institution for educational or training purposes, provided there are no suitable substitutes available in the commercial marketplace. Educational institutions may copy news and news commentary (excluding documentaries) from radio and television broadcasts and keep the copy for educational use on school premises for up to one year from the date the tape is made. All other types of radio and television broadcasts can be copied by educational institutions and kept for up to 30 days to decide whether the copy will be used for educational purposes. If the copy is used for educational purposes, a royalty set by the Copyright Board must be paid.

Another category of user having exceptions under the Copyright Act are "non-profit libraries, archives and museums." These institutions may copy published and unpublished works protected by copyright in order to maintain and manage their collections. Examples are making a copy for insurance purposes and to preserve a rare, original work which is deteriorating.

This can be done as long as copies are not commercially available in a medium that meets the institution's needs. Libraries, archives and museums may copy an entire article of a scholarly, scientific or technical nature provided the copy is used for private study or research purposes. Articles in a newspaper or periodical which are not scholarly, scientific or technical can also be copied if the article is at least 12 months old at the time the copy is made, and provided the copy is used for private study or research purposes.

Another category of user to benefit from exceptions is persons with a "perceptual disability." This term refers to someone who has difficulty reading or hearing. Persons with a perceptual disability, or at the request of a person with a perceptual disability, or for a non-profit organization acting for his or her benefit, to copy a work protected by copyright in alternate formats such as braille, talking books or sign language. The exception applies unless a work in an alternate format is already commercially available.

For a complete list of exceptions to infringement, refer to the Copyright Act.

Examples of infringement

Infringement:

reprinting an article without the copyright owner's permission;
playing records at a dance without the copyright owners' permission;
giving a public performance of a play without permission;
photocopying articles for a class of students without permission; and
taping your favourite band at a music concert without permission.

Not infringement:

quoting a few lines of the article in a research paper (fair dealing);
playing records at home;
giving a public performance of a play by Shakespeare (no copyright exists/public domain);
obtaining permission from the author and paying a fee to him or her (if requested) in order to use an article; and
borrowing a musical tape from a friend to copy onto a blank tape for private use (a royalty payment to the owner of the song rights has been paid when the blank tape was purchased).

Automatic protection for Canadian and foreign works

When you create a work or other subject matter protected by copyright, you will automatically have copyright protection provided that, at the time of creation, you were:

a Canadian citizen or a person ordinarily resident in Canada;
a citizen or subject of, or a person ordinarily resident in, a Berne Convention country, a Universal Copyright Convention country, a Rome Convention country (for sound recordings, performer's performance and communication signals only), or a country that is a member of the World Trade Organization (WTO); or
a citizen or subject of, or a person ordinarily resident in any country to which the Minister has extended protection by notice in the Canada Gazette.

In some cases, you would also obtain automatic copyright if your work was first published in one of the countries included among those who have signed the Berne, Universal Copyright or Rome conventions or the WTO agreement, even if you were 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 or more of the international treaties — the Berne Convention or the Universal Copyright Convention, the Rome Convention or are members of the WTO. Citizens of countries which are members of those conventions enjoy the benefits of Canadian copyright law in Canada. Canada also extends protection to certain non-member countries by way of notice in the Canada Gazette.

Sound recordings themselves are protected internationally under the Rome Convention and under the copyright treaties, but there is quite a variation internationally as to the nature of the protection given to sound recordings. In Canada, sound recordings enjoy a broad range of protection under the Copyright Act.

Authorship

The author is normally the person who creates the work. See the discussion "Authorship" later in this guide under "Registration of copyright."

Ownership

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 for valuable consideration is the first owner of copyright unless there is an agreement to the contrary. The consideration must actually be paid for the copyright to belong to the person commissioning the photograph, portrait, engraving, or print. Also, you may legally transfer your rights to someone else, in which case, that person owns the copyright.

Duration

Copyright in Canada protects "intellectual" as opposed to "physical" property. One difference between intellectual and physical property is that ownership of physical property, such as a boat or a toaster, is perpetual. One continues to own physical property until it is given away, sold, consumed or destroyed. Ownership of intellectual property, like copyright, is different. Copyright ends at a legally defined point in time. These points in time are set out in rules in the Copyright Act. There is one general rule and many special rules that apply to certain kinds of works.

General rule

The general rule is that copyright lasts 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 the calendar year. Therefore, protection will expire on December 31 of the 50th year. After that, 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. This rule applies to all categories of works except those to which special rules apply. Some of the more important special rules are listed below.

Photographs

There are three possible terms of copyright protection for a photograph:

First, where the author is a natural person, the term of protection is the remainder of the calendar year in which the author dies, and for 50 years following the end of the calendar year.
Second, if the author of the photograph is a corporation in which the majority of voting shares are owned by a natural person who is the author of the photograph (e.g. a commissioned photograph), then the term of copyright protection is the remainder of the calendar year in which the author dies, and for 50 years following the end of the calendar year.
Third, if the author of the photograph is a corporation in which the majority of voting shares are not owned by a natural person who is the author of the photograph (e.g. a commissioned photograph), then the term of copyright protection is the remainder of the year of the making of the initial negative or plate from which the photograph was derived or, if there is no negative or plate, the remainder of the initial photograph, plus 50 years.

Certain cinematographic works

The duration of protection for cinematographic works which do not have an original arrangement, acting form or combination of incidents (e.g. most home videos) is the remainder of the calendar year of first publication and for 50 years following the end of that calendar year. However, if the cinematographic work is not published within 50 years following the end of the calendar year of its making, copyright lasts for 50 years following the end of the calendar year of its making. (In other words, a film or video published within 50 years of its making is protected for 50 years from the date of publication. If it was not published within that 50-year period, it is protected for 50 years from the date of making.) These rules apply to all cinematographic works where the arrangement, acting form or combination of incidents do not give the work an original character (i.e. most home videos).

Films and videos which do have an original arrangement, acting form or combination of incidents have always been protected for the life of the author plus 50 years.

Sound recordings

This category includes audio cassettes, CDs, recordings and similar devices. Copyright lasts for 50 years after the end of the calendar year of the first fixation of the sound recording.

Performer's performance

Copyright lasts for 50 years after the end of the calendar year in which the performance is first fixed or, if it is not fixed, 50 years after it is performed.

Communication signals

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 is perpetual until the work is published. Laws enacted by the Government of Canada, decisions and reasons for decisions of federally constituted courts and administrative tribunals are subject to special copyright rules. Anyone may, without charge and without asking permission, reproduce federal laws, decisions and reasons for decisions of federal courts and administrative tribunals. The only condition is that due diligence is exercised in ensuring the accuracy of the material reproduced and the reproduction is not represented as an official version.

For additional information please refer to Justice Canada's Web site. Permission to use works owned by the Crown may be obtained from:

Crown Copyright Officer
Canadian Government Publishing
Public Works and Government Services Canada
Ottawa ON K1A 0S9
Tel.: 613-996-6886
Fax: 613- 998-1450
E-mail: copyright.droitdauteur@pwgsc.gc.ca

Joint authorship

In the case of a work which has more than one author, the term will be measured using the life of the author who dies last and 50 years following the end of that calendar year.

Unknown author

In the case of a work where the identity of the author is unknown, but the work is protected for the life of the author, the copyright subsists for whichever of the following terms ends earlier:

the remainder of the calendar year of the first publication of the work and a period of 50 years after that; or
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 which have not been published or performed or delivered in public) during the lifetime of the author.

The duration of the copyright in these works depends upon the date of creation of the work. If the work was created after July 25, 1997, the term of copyright protection is the life of the author, the remainder of the calendar year in which the author dies, and for 50 years following the end of the calendar year.

If the work was created before July 25, 1997, then three different scenarios can exist:

First, the author dies, the work is published, performed or delivered prior to July 25, 1997, the copyright lasts for the remainder of the calendar year in which the work was first published, performed or delivered and for 50 years after that.
Second, the author dies during the 50 years immediately before July 25, 1997, and the work has not been published, performed or delivered on July 25, 1997, the copyright lasts until December 31, 1997 (for the remainder of the calendar year in which Bill C-32 comes into force and for 50 years following the end of that calendar year).
Third, the author died more than 50 years immediately before July 25, 1997, and the work has not been published, performed or delivered on July 25, 1997, the copyright lasts until December 31, 1997 (for the remainder of the calendar year in which Bill C-32 comes into force and for five years following the end of that calendar year).

Moral rights

Even if you sell your copyright to someone else, you still retain 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 a 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.

Following are some situations which may infringe the author's moral rights.

Example 1: You've sold the copyright of a song to a certain publisher who converts your music into a commercial jingle without your permission.

Example 2: You've sold the copyright for your novel to a publisher who decides to give it a happy ending, instead of the tragedy youwrote.

You cannot sell or transfer your moral rights to anyone else, but you can waive them when you sell or transfer your copyright 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, usually for the lifetime of the author plus 50 years more, and passed to the heirs of the author, even if they do not inherit ownership of the copyright itself.

Previous | Table of Contents | Next