This article takes a look at this strange and unique legal creature the law calls "copyright", represented by the little "c" in a circle, and which afflicts all the sheet music, plays, web pages, books, movies and newspapers we enjoy. And that's ©!

Copyright is not a child of the common law. It is a complex area of the law, founded on statute, and then infected with a plethora of regulations and Court decisions which purport to clarify the body of law. While this article provides an excellent "starter", space limitations require necessary generalizations such that if you have a real, live copyright issue, consult with a lawyer. See, for more, the Legal Definition of Copyright.

As to the "jungle" once prevailing, see the following legal history articles:

Copyright is an exception to the common law rule that with original ideas, it was once a jungle out there, one author being free to copy from another. As United States Supreme Court Justice Louis Brandeis wrote, in Internationall News Service v. Associated Press:

"The general rule of law is, that the noblest of human productions — knowledge, truths ascertained, conceptions, and ideas — become, after voluntary communication to others, free as the air to common use. Upon these incorporeal productions the attribute of property is continued after such communication only in certain classes of cases where public policy has seemed to demand it. These exceptions are confined to productions which, in some degree, involve creation, invention, or discovery. But by no means all such are endowed with this attribute of property. The creations which are recognized as property by the common law are literary, dramatic, musical, and other artistic creations; and these have also protection under the copyright statutes."

In Canada, copyright is a matter of exclusive federal government jurisdiction, as set out at §91(23) of the Constitution Act, 1867. The Canadian Copyright Act is cited as RSC 1985 C-42. At 3(1) of that statute, this proposed definition of copyright:

"... the sole right to reproduce a work or any substantial part thereof in any material form."


(c) symbolCopyright means … the sole and exclusive right to produce or reproduce (i.e. "copy") a qualified work and, which is so very common, to rent out that right! Every DVD you rent on family movie right, comes with a complex system of tight copyright permissions.

 The Canadian copyright office, circa 2007, provided an excellent summary of who owns what re ©:

"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."

Copying without the author’s permission is a breach of author’s copyright and actionable.

Lawyers spin their heads in trying to pigeon hole this creature of the law.

Canada's Supreme Court (Justice Estey) said, in 1978, in Compo Co. v. Blue Crest Music Inc.,  [1980] 1 SCR 357, that:

"Copyright law is neither tort law nor property law in classification, but is statutory law. It neither cuts across existing rights in property or conduct nor falls between rights and obligations heretofore existing in the common law. This creature of statute has been known to the law of England at least since the days of Queen Anne when the first copyright statute was passed."

But then, 9 years later in sunny BC, a Supreme Court judge says that: "... copyright ....is primarily a personal property right .... a form of legal right in the nature of a property right.... A legal right then involves entitlement on the part of a person to call upon the law and its powers of enforcement to ensure that the expectations raised by the right's consequent obligation on others is met or, to provide some other remedy in lieu of meeting that expectation. Where there is no entitlement to enforcement or an alternate remedy, the expectation cannot be defined as a legal right. Thus, where the law refuses to enforce an expectation, there is no legal right."[Aldrich, see below].

Ulltimately, the question as to whether copyright is property need not be answered because, whatever else it is, as Justice Estey stated: "Copyright legislation simply creates rights and obligations upon the terms and in the circumstances set out in the statute," no more no less.

© - what's a "work"?

  • literary works (written) including computer software;
  • dramatic works (performances, songs, movies, including recordings);
  • artistic works (paintings, maps, photographs, sculptures); and
  • communication signals.

In plain English,copyright applies to web or magazine articles, movies and videos, photos, sculptures, novels, plays, songs and computer programs but not to names or slogans, short phrases and titles, teaching methods, plots or characters and factual information or works consisting entirely of information that is in the public domain.

Further, there is often a separate copyright for musical works. One for the song and another for the recording (considered two different works). In the USA, that separate recording has its own symbol: instead of a ©, it is a "P" in a circle.

Commercial value or "merit" of an original work has no impact on ©.

Titles, names and short word combinations or factual information do not qualify as stand-alone copyrightable material.

The idea itself is not protected under ©; just the fixed expression of it.

That the work has to be original is somewhat misleading in that an otherwise original work can be "re-expressed" and be separately ©.

Read these wise words of Justice Learned Hand in Nichols v. Universal Pictures Corporation:

"If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare's "ideas" in the play, as little capable of monopoly as Einstein's Doctrine of Relativity, or Darwin's theory of the Origin of Species. It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly."

copyright © Pixelbliss - Fotolia.comAs further example, judicial decisions and reproduced by private law reporting companies who print them as part of collections, add headings and annotations. These have separate © protection.

The © holder has the right to:

  • The integrity of the work;
  • Be associated with the work as its author by name; and
  • Publish, perform, convert, record, reproduce or present the work or license the right to do so (for "royalties").

Pursuant to international agreements, notice of a © claim follows a standard annotation: a "©" followed by publication date and name of © holder.

As a very unique feature in law, when you sell a copyright, you still retain some authority over the thing sold! Copyright law refers to these as "moral rights" and it means that not even the person who bought the copyright from the author can distort, mutilate or otherwise modify your work in a way that is prejudicial to the author's honour or reputation. The author's name must also be associated with the work as its author, if reasonable in the circumstances.

The monopoly for copyright, though, is not absolute as it might be with patents or trademarks.

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 (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 threshold between fair dealing and infringement is not always clear. The Act does not spell out the size of the extract that can be used without permission from the author.

Non-profit educational institutions, non-profit libraries, archives and museums also have special status and can, in some cases, freely use copyrighted material, free of charge, in the classroom, subject to certain restrictions.

As of June 1, 2007, the Canadian Copyright Office was advising that the following were not copyright infringements:

  • Quoting a few lines of the article in a research paper (fair dealing);
  • Playing records or CDs 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).

The general rule is that copyright lasts for the life of the author + 50 years, although there are special rules for corporations. In the USA, the duration is life + 70 years.

After that, the work becomes part of the public domain. Anyone can use it. Examples: Shakespeare's plays.

ENFORCEMENT

The Canadian Copyright Act provides for criminal proceedings in the event of a breach of a ©.

There is a federal "copyright board" which may handle a dispute.

For the most part, though, © holders are left to themselves to convene a Court to hear their complaint and seek damages for copyright infringement.

It is not necessary to register a copyright (costs only $45 in the USA and $65 in Canada, as of June 2007) but it is prudent to do so. §53 of the Copyright Act says: "A certificate of registration of copyright is evidence that the copyright subsists and that the person registered is the owner of the copyright."

According to the Canadian government:

"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."

It is not a requirement in Canada but some countries will not honour alleged copyright if the work does not bear the © symbol. The © gives universal notice of a claim of copyright on a work. 

Case sample #1: Boudreau v Lin

Paul Boudreau ("B") had a fulltime computer job with Nortel. His employment contract with Nortel gave him © over works developed while employed at Nortel.

To upgrade his skills, he took a course given by Professor Jimming Lin at the local University of Ottawa. As part of his course, he had a 60% term paper to hand in. He chose a theory on an improved method for producing integrated circuits. His term paper included data taken from his place of employment.

Next term, without B’s knowledge, Lin slightly amended the paper, and included it within a student textbook, having removed B’s name and replaced it with his own as author.

B got wind of it and then found out that L had also presented the paper at an academic conference, again as if Dr. Lin was the author.

B complained to U of O. U of O "investigated" and gave Professor Lin a slap on the wrist and asked him to be more careful next time!

Dissatisfied, B then sued for binfringement of copyright.

At trial, Lin was not believed where his evidence differed from that of B. Lin said he had made so many changes that he ought to be taken as "co-author".

Held: No co-authorship. "The basis of the story, the vocabulary, the rhythm, the magnitude, the sensibility and truthfulness" was all B.

Lin then argued that the © Act exempted him from an action under the statute since the paper was "fair dealing" (¶27(2)) which included the use of copyrighted work for the purposes of "private study and research". Since the term paper was included in his textbook, Lin could not claim "private study".

As employer, was U of O "vicariously liable"? Yes! The Court held that U of O did not properly investigate B’s initial complaint ("cavalier attitude"). They had sold the textbooks.

Damages payable by L or U of O: $7.5K + client/solicitor costs.

Case sample #2: Aldrich v One Stop Video

The 1987 case of Aldrich v. One Stop Video is a great case of legal yoga where the Court had to consider a claim for copyright infringement even though the the works involved were alleged to be obscene (porn movies).

At issue were three sex videos that the judge didn't even watch, making his decision based on admissions that the videos were "beyond the contemporary Canadian standard of tolerance".

Concluding that copyright can extend to obcene works ("I can find nothing in our Copyright Act to deny copyright to an author on the ground that the work in which the right is asserted is obscene"), Justice Davies then refused the plaintiff any damages:

"The (copyright) owner is entitled to compensation where an infringer reproduces a work and sells or distributes it for profit because the infringer has prevented the owner from taking the anticipated gain flowing from an act which is the sole right of the owner to perform. However, this entitlement must be qualified by the broad common law principle that there is no compensable loss where the copyright owner's anticipated gain would flow from an illegal act.

"Having found the conduct of all parties to be contrary to the moral values of Canadian society, the parties will bear their own costs."

REFERENCES:

© Lloyd Duhaime 2013