Copyright Law in Canada: An Introduction to the Canadian Copyright Act

Feature by Jay Makarenko || Mar 13, 2009

Copyright is an important legal and political issue in Canada, an issue that has been made even more significant with the rise of new technologies, such as the Internet, mobile media devices, and digital copying technology. This article provides an introduction to copyright law in Canada, with a particular focus on the Canadian Copyright Act. Specific topics discussed include an introduction of Canada’s copyright system, the history of copyrights in Canada, highlights of the Canadian Copyright Act, and examination of key issues in Canadian copyright law.

Introduction to Canada’s Copyright System

What is copyright and how is it regulated in Canada?

History of Copyrights in Canada

Historical development of copyrights in Canada

Overview of the Canadian Copyright Act

Key provisions of the Canadian Copyright Act

Debates Concerning Canadian Copyright Laws

The need for copyright and copyright in the digital age

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Introduction to Canada’s Copyright System

What is copyright and how is it regulated in Canada?

Copyright as an Intellectual Property Right

Copyright is a property right. It is a right that one has in relation to the use of his/her private property. Copyrights are, however, a very special set of property rights. Most often we think of property in terms of tangible objects, such as a house, car, television, or land. The rights one has in relation to these objects are often referred to as “physical” property rights; they are rights that one has in relation to their physical property.

Copyrights, by contrast, deal with non-physical objects or what is commonly referred to as “intellectual” property. These are objects that do not exist in physical form, but of which we can still make ownership claims. The lyrics to a song or the code for a computer program, for example, are not physical property. Nevertheless, we would still say these objects can be owned, just as one would own a house or car.

Think, for example, of a book. On the one hand, a book is a tangible object; it is a series of paper pages with words printed upon them and then bound by a cover. This part of the book forms the physical property. A book, however, is also an intangible object; it is a series of words organized in such a manner so as to express meaning to the reader. Copyrights are held in relation to this intangible part of the book.

The term “copyright” literally means the “right to copy.” It is a right that the owner (of the intellectual property) has in relation to how that intellectual property may be used. Many songwriters, for example, hold copyright over the lyrics and musical composition of their work. As such, they have the right to decide who may reproduce those songs and under what conditions that reproduction may take place. For instance, if someone copies the songs without the creator’s permission, then that individual is violating the songwriter’s ownership rights of their intellectual property.

Other Types of Intellectual Property Rights

It is important to note that copyright is just one area of intellectual property law. Other examples of intellectual property rights include patents, trademarks, industrial designs, and integrated circuit topographies. Each one of these areas involves different aspects of what we might think of as “intellectual property,” and includes its own rules and rights. In some cases, however, there may be overlap between two or more areas. A company’s logo, for example, may be protected by both a trademark and a copyright. The following list should serve to make this point clearer:

  • Trademarks are used to distinguish the goods or services of one person or company from those of another. This includes slogans, names of products, distinctive packages, or unique product shapes.
  • Patents protect new and useful “inventions,” such as processes, equipment, and manufacturing techniques, but do not cover an object’s artistic or aesthetic qualities.
  • Industrial designs protect finished manufactured objects, and specifically, their original shape, pattern, ornamentation, or configuration (or any combination thereof).
  • Integrated circuit topographies protect microchips. Protection is for the topography of a microchip, or its specific configuration of semi-conductors, metals, insulators, and other materials.

Regulation of Copyright in Canada

Under Canada’s Constitution, copyright law falls under exclusive federal jurisdiction (this is granted under section 91(23) of the Constitution Act, 1867). Accordingly, Canada has a single, uniform system of copyright law. It is not the case that copyright law is different from one province/territory to another. All issues of copyright are regulated by a single set of federal laws.

The federal government regulates copyright through a key piece of federal legislation: the Copyright Act. First passed in 1921, this law outlines what sorts of objects may be covered by copyrights, how ownership of these objects is determined, and what sorts of entitlements are attached to this ownership. Other significant sources of copyright law include the Criminal Code, as well as common-law principles.

There are several departments within the federal government which are primarily responsible for copyright matters. Industry Canada is tasked with the administration of the Act, which it does through its Canadian Intellectual Property Office. Industry Canada also works with Canadian Heritage when developing policy for revisions of the Act. Another important government agency is the Copyright Board of Canada, which is an independent tribunal that sets royalties in certain circumstances for the use of copyright works.

The Canadian court system also plays a central role in interpreting and enforcing copyright law. Copyright cases can arise from either civil or criminal proceedings, with the former being the most common (Murray & Trosow, 2007). Civil cases involve one private party suing another for breach of their copyright, and tend to result in monetary settlements. Criminal cases involve government prosecution of a private party for offences stipulated in the Copyright Act or other statutes. Findings of guilt can result in fines or imprisonment depending on the offence.

Canada has also entered into a number of international agreements that have direct bearing on the regulation of copyright. Two key agreements include the Berne Convention and the Universal Copyright Convention. The former provides for automatic reciprocal copyright protection for member countries. As a member of the Berne Convention, all copyrights recognized in Canada are also recognized in other countries (and vice versa). The Universal Copyright Convention is the only major international agreement signed by the United States. It also provides for reciprocal copyright protection for member countries, but only upon compliance with certain formalities. Canada and the United States have also signed their own bilateral reciprocal agreement.

History of Copyright Law in Canada

Historical development of copyrights in Canada

Copyright in Canada Prior to 1924

Canada did not have its own copyright law until 1924, 57 years after Confederation. During this early period, copyrights in Canada were instead governed by British laws and legal frameworks. This was due in large part to the fact that Canada did not enjoy complete independence from Britain following Confederation, particularly in areas with international implications, such as copyrights.

From 1842 to 1911, copyright in Canada was regulated by the Imperial Copyright Act. Central to this British law was a prohibition on the importation of reprints into Britain and its possessions, as well as a 35 percent duty on publications originating from the United States. At that time it was legal in the US to produce unauthorized reprints of foreign publications; the Imperial Copyright Act was a direct result of this, passed to stem the flood of cheap US reprints that threatened the publishing industry in Britain. In the Canadian context, there was the further concern that Canadian access to US books might lead to an American shift in Canadian culture and values. Canadian booksellers, however, were highly critical of the new British law, as they preferred access to inexpensive supplies in the US. In 1847, the Foreign Reprints Act permitted imports into Canada once again; however, with a duty of 12.5 percent.

In the late 1800s, European nations moved to an international system of copyrights with the Berne Convention for the Protection of Literary and Artistic Works. Moreover, in 1891, the British and Americans signed a bilateral agreement to respect each other’s copyrights. These agreements had both benefits and detriments in Canada. On the one hand, they granted Canadian authors and artists internationally recognized copyrights. On the other hand, they threatened Canadian access to inexpensive foreign reprints.

Canada attempted several times to enact its own copyright laws: in 1889, 1890, 1891, and 1895. In each case, however, British authorities denied passage of the legislation. It wasn’t until 1911, when the British passed a new Copyright Act, that Canada was granted the right to make its own laws on the matter of copyrights.

Enactment and Reform of the Canadian Copyright Act

In 1921, the Canadian Parliament passed the country’s first domestic copyright legislation, which was titled the Copyright Act (the Act did not come into force until 1924). The new Canadian legislation was almost identical to the British Copyright Act of 1911. Between 1924 and 1988, the Act saw only minor amendments to its provisions.

This is not to suggest a lack of interest in reforming the original copyright law. Beginning in the 1950s, the federal government engaged in numerous studies of copyright reform. This movement towards reform was due in large part to new developments in technology (such as the appearance of computers, photocopiers, and media recording devices), and the need to update the law accordingly. Key government studies that explored copyright during this period included the 1954-1960 Royal Commission on Patents, Copyright, and Industrial Design (the “Ilsley Commission”); a 1977 working paper by the Canadian Department of Consumer and Corporate Affairs, entitled Copyright in Canada: Proposals for Revision of the Law (the “Keyes-Brunet Report”); a 1984 federal government white paper on copyright, entitled From Gutenberg to Telidon: A White Paper on Copyright; and a report from the 1985 House of Commons’ Standing Committee on Communications and Culture, entitled A Charter of Rights for Creators — Report of the Subcommittee on the Revision of Copyright.

These studies led to the initiation of a copyright revision process, implemented in two phases. Phase I was undertaken in 1988, and involved several significant modifications to the original Act, including:

  • statutory protection for computer programs
  • clarification and extension of moral rights
  • elimination of the compulsory licence for the reproduction of musical works and the substitution of a right of negotiation
  • the introduction of a new procedure to licence works where the owner could not be located
  • new rights for visual artists to exhibit their works in public
  • increased criminal sanctions, and the enactment of rules under which collective organizations could form and operate under the supervision of a revamped Copyright Board

Phase II was implemented in 1997, and included:

  • new remuneration rights to producers and performers of sound recordings when their sound recordings are broadcast or publicly performed by radio stations and in public places like bars and restaurants
  • compensation system for private copying, in the form of a levy on blank audio recording media, benefitting eligible composers, lyricists, performers, and producers of sound recordings for the making of recordings
  • provisions granting exclusive book distributors legal protection in the Canadian market
  • new exceptions to non-profit educational institutions, libraries, archives, museums, broadcasters, and persons with perceptual disabilities allowing them to reproduce or use copyright material in specific circumstances without paying royalties or obtaining authorization from rights holders
  • statutory damages and wide injunctions to enhance the enforcement of copyright

The 1997 amendments also included a mandatory review of the Act. This review process resulted in the tabling of Bill C-60 by the Liberal government of Prime Minister Paul Martin in 2005. Central to the proposed amendments were stronger rights for copyright holders, particularly in the areas of computer and online copying of materials. With the fall of the Martin government in 2005, however, the bill was never passed into law.

For more information on the 2005 proposed amendments:

The issue of copyright reform was again taken up by the subsequent government, this time helmed by Conservative Prime Minister Stephen Harper. In 2008, the government introduced Bill C-61, which would have substantially reformed copyright law in Canada. As was the case with the previous Bill C-60, the new proposed legislation would have granted stronger rights for copyright holders in the areas of computer and online copying of materials. With the calling of the election in September 2008, however, the bill was never passed into law.

For more information on the 2008 proposed amendments:

Canadian Copyright in the International Context

In understanding the evolution of Canadian copyright law, it is important to note the international context. Of particular importance is Canada’s participation in several international agreements on copyright law. While domestic legislatures in each country determine copyright protection, certain norms and rules are defined at the international level though forums and treaties addressing intellectual property issues.

One of the oldest international agreements is the Berne Convention for the Protection of Literary and Artistic Works, noted earlier; it sets minimum standards of protection for authors of literary, dramatic, musical, and artistic works, in addition to defining the duration of that protection. First established in 1886, the Berne Convention has undergone several modifications, to which some of Canada has not agreed. In 1998, however, Canada acceded to the 1971 version of the Berne Convention and its minimum standards for copyright protection.

Another international influence on copyright in Canada has been bilateral and multilateral free trade agreements. In 1989, Canadian copyright law was amended to bring it into accordance with the Canada-United States Free Trade Agreement. This included a requirement that cable and satellite companies pay for the retransmission of works included in distant broadcast signals. The Copyright Act was further amended in 1994, following passage of the North American Free Trade Agreement. This included a rental right for sound recordings and computer programs and increased protection against the importation of pirated works. In 1995, additional changes were implemented to reflect international agreements under the World Trade Organization (WTO). Protections under the Canadian Copyright Act were extended to all WTO member countries, and new provisions were added to protect against unauthorized recordings and transmissions of live events.

In 1996, the World Intellectual Property Organization (WIPO) Diplomatic Conference on Certain Copyright and Neighbouring Rights Questions adopted two new treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. These international treaties, which Canada signed in 1997, deal with the issue of copyright protection in the digital age. The federal government’s proposed reforms of the Copyright Act in 2005 and 2008 (see above) were intended to bring Canadian copyright law into accordance with these international agreements.

In 1997, Canada also agreed to abide by the Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961), commonly referred to as the “Rome Convention.” This international agreement allows performers and sound recording producers to receive royalties when their works are performed or broadcasted in other member countries.

Overview of the Canadian Copyright Act

Key provisions of the Canadian Copyright Act

Objects Covered under the Act

Copyright is the right of an owner to prevent unauthorized copying or use of their intellectual property by others. Under Canada’s Copyright Act, this right covers a wide array of objects:

Objects Covered by Copyrights

  • books
  • poetry
  • plays
  • software
  • motion pictures
  • songs
  • phonograph records
  • paintings
  • drawings
  • computer programs
  • sculptures
  • choreography
  • photographs
  • tables
  • compilations
  • translations as literary works

Protection of “Expression”

It is very important to note that, under the Copyright Act, copyright only extends to the expression of these objects: no one can claim copyright over an idea or some fact. They can, however, claim ownership over their particular expression of an idea or statement of fact. As such, anyone can follow an idea set out in a book or song, or create another piece of work based on the same idea, without violating copyright. They cannot, however, reproduce the exact expression of that idea.

While this sort of distinction seems confusing, it is nevertheless very important. The fact that copyright does not extend to ideas or facts ensures there is a free flow of ideas in society. No one can, for example, copyright the idea of “God” or “democracy” and deny others the ability to use those ideas. Persons can only copyright their particular expressions about God or democracy, be it in the form of, for instance, a book or song.

Criteria for Copyright Protection

The Copyright Act, furthermore, sets out key criteria for the recognition of a copyright in Canada:

  • Originality: Copyrights may only be extended to original works. A work must be “original” in the sense that it must not be a copy itself. As such, one cannot copy another’s work and then claim a copyright for him/her self.
  • Fixation: In order to claim copyright, the original work must be expressed in some material form, capable of identification, and having a more or less permanent endurance. One cannot, for example, copyright a thought in his/her mind, but can copyright a thought expressed on paper.
  • Nationality: For a copyright to exist in Canada, the creator must, at the time the work was created, be a citizen or subject of Canada, or of a foreign country that is a member of a multinational or binational agreement to which Canada is also a member.

Automatic Protection of Intellectual Property

Under the Canadian Copyright Act, copyrights are recognized automatically upon creation of a work that meets the three criteria described above (originality, fixation and nationality). In other words, once a person creates an object, they are immediately entitled to a copyright without any further action. This contrasts with other sorts of intellectual property rights, such as patents, in which the owner must apply to a government agency in order to have their property right established.

The Copyright Act does, however, provide for the voluntary registering of copyrights, and sets out some of its advantages. According to the Act, a certificate of registration creates the legal presumption that (1) a copyright exists in the work and (2) that the person registered is the owner of the copyright in that work. These legal presumptions are helpful in the event of a court action since there is no onus on the person claiming the copyright to in fact show that s/he is the owner of the work.

Selling and Licencing of Copyright

It is important to note that the Copyright Act does not prohibit the use of copyrighted works by others, but simply the “unauthorized” use of those works. As such, others may use copyrighted works if they first gain the owner’s permission or authorization. In some cases, owners may allow others to use their work free of charge. In other cases, however, the owner may sell or licence their copyright in return for a lump-sum payment or royalties. This licencing of copyrights is common is cultural sectors, such as the music, movie, and television industries, where the creators of works sell or licence their copyright to producers and distributors in exchange for monetary compensation.

Duration of a Copyright

The duration of a copyright is an important issue covered by the Copyright Act. In the context of most physical property, the duration of ownership is fairly straightforward. One owns their physical property in perpetuity; that is, until it is given away, sold, consumed, or destroyed. In the case of intellectual property, however, the Act places a time limit on ownership. As such, copyright ends at a legally defined point in time, after which the material becomes part of the public domain and may be used by anyone without restriction. The general rule set by the Act is that copyright lasts for 50 years following the end of the calendar year in which the creator dies. The Copyright Act does, however, allow for numerous exemptions to this rule for various categories of work.

Limitations on Copyright

The Copyright Act sets out a number of important limitations on copyright, which allow people to use works protected by copyright without obtaining the prior authorization or having to pay compensation. These limitations may be classified into two broad categories: exemptions and compulsory licences.

Exemptions are circumstances in which people can use copyright materials without asking permission or paying royalties. Under the Copyright Act, there are three key types of exemptions. The first, exemptions for specific purposes, allows persons to engage in unauthorized uses of copyrighted materials for particular purposes, such as criticism and review, news reporting, and private study or research. The second, exemptions for specific works, limits the protection of certain classes of work. Computer programs, for example, do not enjoy full copyright protection as people are allowed to copy programs for backup purposes or for the functional operation of the programs themselves. The third, exemptions in specific situations, allows certain entities to use copyrighted works in certain circumstances. The Act, for example, allows educational, religious, charitable, and fraternal organizations to engage in public performances of works without prior authorization or payment of royalties.

Another category of copyright limitations are compulsory licences. These are provisions of the Act which forces a copyright owner to allow others to use their work at a specified royalty rate. As a result, the copyright owner does not have control over the use of their work by others, but is nevertheless compensated when that work is used. Further, the Copyright Act often sets out the specifics of how the work may be used. One of the most important areas of compulsory licences involves the retransmission of radio and television programs. Retransmitters, such as cable and satellite companies, are allowed to capture and sell broadcast signals to their customers without prior authorization. Under the Act, however, they are required to pay a preset royalty to the original producers.

Remedies for Violation of Copyright

The Copyright Act further establishes remedies for the violation of a copyright ─ that is, cases where one party copies the work of another without prior consent or authorization. These may be grouped into two sorts: civil remedies and criminal sanctions.

Civil remedies may be granted in cases involving two private parties. It may be, for example, that the private party which owns the copyright sues another private party for infringing upon that copyright. Civil remedies may range from a court order prohibiting the offending party from using the copyrighted work, to the granting of damages to the aggrieved party. Damages are usually paid in monetary form and are based on the severity of the copyright infringement and the harm done to the owner of the copyright.

Criminal sanctions may be applied in cases where the government prosecutes a private party for violation of the Copyright Act. These sanctions may range from monetary fines assessed to the offender, to imprisonment. It is important to note that an offending party may face both civil remedies and criminal sanctions depending on the sort of offence and the circumstances of the case.

Debates Concerning Canadian Copyright Laws

The need for copyright and copyright in the digital age

Rationales for Copyrights

A basic debate centres on whether there should even be copyright in society. That is, whether persons should be able to claim ownership over their expression and have control over who may and may not copy their work. This debate tends to come in two forms: 1) individual versus social ownership of expression and 2) the social benefits versus detriments of copyrights.

The first form of this debate centres on whether an individual can actually claim ownership of expression. One rationale for copyrights is that individuals have a natural right to the objects they create. This sort of argument often appears in the more simplistic form of “it is mine, because I made it.” Central here is the notion that people are naturally entitled to claim ownership over anything to which they themselves create or put their labour into. If, for example, I build a house, I am entitled to claim ownership over it. This argument, moreover, is extended from physical property to intellectual property. If I create a poem, a song or a story, for example, I have a natural right to own that property and do with it as I please. Copyrights, therefore, are simply a legal recognition of a person’s natural right of ownership over the things s/he creates.

Critics of this rationale often question the very idea that intellectual goods can be viewed in terms of “individual property.” For them, it is more plausible to view these goods in terms of “social property,” or as the product of social cooperation and collaboration. While it may be true that one individual wrote the song or piece of literature, it is not the case that s/he did it alone. Canadian artists and computer programmers, for example, often benefit from their education, which is provided and paid for by society. Without this education, they may not have been able to produce the work, or, at least not the same quality of work. Critics argue, therefore, that one individual cannot make the claim “it is mine, because I made it.” The reality is that society (or significant portions of it) participated in the making of the work and, as such, the work cannot be claimed as private property by one individual.

One may attempt to justify copyright on very different grounds, in which the issue is not some natural right to property, but what will produce the greatest good for the greatest number of people. Under this utilitarian view, copyright and private ownership of intellectual goods are valuable because they will bring great economic and cultural benefits to society. In the contemporary western world, this sort of justification is often grounded in a free market view of intellectual goods. Central here is the assumption that individuals will be better producers of intellectual goods if they own the objects of their labour. The fact they own and can sell their products motivates individuals to produce more and better intellectual goods to sell in the market. Copyright, therefore, is valuable in the sense that it ensures a robust intellectual class, with all of its economic and cultural benefits.

Critics of this argument take issue with the idea that private ownership will necessarily lead to a robust and rewarding intellectual life in society. Some, for example, suggest private ownership acts a barrier to learning and the free flow of ideas, as it allows the owners (be it the creators or those that buy copyrights) to hold expression privately and not share it with the public. Moreover, this view argues that even when intellectual goods are shared, copyright can inflate the price of access as the owners must be compensated for use of their expression. This, in turn, can be a barrier for those who may not be able to afford the cost. If there were no copyrights, then intellectual goods, such as music, movies, and computer programs, could be copied and distributed more inexpensively and to a wider audience.

Copyright and New Technology

Another important issue concerning copyright centres on the arrival of new media technologies, and their normative and practical implications for copyright law in Canada.

On the one hand, these technological advances have made explicit the sorts of debates discussed above. Today, music, movies, pictures, and literature can be easily obtained free of charge through sharing on the Internet, mobile media devices, and digital copying technology. This has resulted in an explosion in the distribution of intellectual goods, as wealth no longer dictates who may gain access to these materials. It has, however, also threatened the traditional free market system of intellectual property, as artists, producers and distributors no longer gain the same financial benefits from their goods. The result has been a growing debate in many western countries, including Canada, over how these new technologies should be regulated, and whether copyright should be protected as strongly as before.

Governments, at both the international level and domestically in Canada, have moved to strengthen the protection of copyrights in the new digital age. This includes international agreements such as the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, both of which have been signed by Canada. Domestically, the federal government has twice attempted to introduce reforms to the Copyright Act, which would have made it more difficult to share intellectual goods through the Internet and other technologies. As of October 2008, however, these proposals have not yet been implemented into law.

For more information on the 2005 and 2008 proposed amendments:

The rise of new technologies has not just made explicit the normative debate over copyright. It has also called into question the practicality of a copyright system. Even if one supports the idea of copyright, new technologies may make it impossible to enforce private ownership of intellectual goods. With the Internet, unauthorized copies of intellectual goods may be sold or shared from anywhere in the world. Enforcement of copyright would have to be global, at least from the perspective of stemming the supply of unauthorized copies. Such a strategy, however, is hampered by the fact that only half of the world’s countries belong to international agreements on copyright, with fewer still actively enforcing their commitments. On the demand side, real enforcement of copyright would require governments to police not only the Internet activities of their citizens, but also copying of intellectual goods through mobile media devices and digital copying technologies. It is not clear whether such policing could be accomplished, or whether governments would be inclined to intrude on the privacy of their citizens to the degree necessary to truly enforce copyright.

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