Warning about Unnecessary or Alternative Methods
for Obtaining Intellectual Property Protection
Copyright is defined by the Copyright Act as the sole right to produce or reproduce a work or any substantial part thereof in any material form, to perform the work or any substantial part thereof in public, or, if the work is unpublished, to publish the work or any substantial part thereof. Any original literary (including software), dramatic, musical, or artistic work qualifies for copyright protection. With the possible exception of a work that is a compilation of data, originality requires that the work originate with the author, rather than it have any particular merit or novelty. If the author is a Canadian citizen or a citizen of a country with whom Canada has a treaty governing reciprocal copyright interests, or if the work is first published in Canada or such country, then copyright arises automatically, without the need for registration or other formality. Among the works protected by copyright are books, articles, sheet music, illustrations, photographs, motion pictures, works of sculpture and computer programs. Copyright protects the form of expression rather than the idea or content expressed. Copyright protection includes the right to translate or record a work as well as the right to transmit the work by telecommunication. The Copyright Act also creates "moral rights", which include the right of an author to be associated with the work and to prevent the distortion or modification of the work.
The author of a work is generally the first owner of copyright. However, if a work is created in the course of employment, the author's employer is the first owner of copyright. Ownership of copyright for a work created by an independent contractor or consultant will depend on the terms of the contract between the parties.
It is common practice for copyright owners to assign their rights in various commercial contexts. Moral rights, however, are not assignable (though they may be waived).
In Canada, copyright exists, for most works, for the life of the author plus 50 years. For photographs, copyright extends for 50 years from the making of the original negative or plate, and for sound recordings and, in some cases, performances, it extends for 50 years from the date of recording of the work.
Copyright protection in Canada is extended to Canadian citizens, or citizens of countries that are parties to certain international treaties. These treaties also provide copyright protection to Canadians in treaty countries (most notably the United States and Europe). Copyright protection in Canada does not require any marking of the work; however, to obtain maximum international protection it is recommended that the work be marked with the international copyright symbol ©, the date of first publication (or date of creation for an unpublished work) and the name of the copyright owner, thus: "© 1993, Mary Smith" for a published work or "© unpublished, created 1993, Mary Smith" for an unpublished work.
Formal registration of a work is not required. An author or the author's employer usually enjoys copyright protection automatically on creation of the work. However, registration is relatively convenient and inexpensive and results in additional legal benefits for the copyright owner, particularly in the context of copyright infringement or an assignment of copyright. In the case of copyright infringement, registration raises a legal presumption as to ownership of copyright and that there is copyright in a work. Registration constitutes notice to the public that copyright exists in the work (a prerequisite to certain legal remedies).
Copyright is infringed whenever a person does something which is within the exclusive right of the copyright owner. Most copyright infringement occurs as the result of the reproduction in a material form of any substantial part of a work in which copyright exists. For example, copyright is commonly infringed when books or computer programs are copied. Remedies for copyright infringement include awards of damages or injunctions to prohibit infringing conduct. Copyright owners can opt to receive damages based on actual damages suffered, including lost profits, or prescribed statutory damage amounts. In addition, the Copyright Act creates criminal offences and imposes penalties which include, for indictable offences, fines of up to $1 million and imprisonment for a maximum of five years. The Copyright Act also exempts certain activities from copyright infringement, including "fair dealing" for the purposes of private study, criticism or review, and stipulates a limitation period of three years for the commencement of an action in respect of infringement.
Literary, dramatic, musical or artistic works are protected by copyright. Copyright protects the form of expression rather than the idea expressed. While copyright protection is automatic, it is advisable to register copyrighted works and mark them with the symbol ©, the date of publication and the name of the copyright owner.
© 2013 Intellectual Property Institute of
Canada, Ottawa, ON 613.234.0516