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COPYRIGHT LAW IN CANADA

This article gives a general description of copyright law in Canada. The information contained in this article is of a general nature only and is not intended to cover the entire area of law relating to copyright. Furthermore, this information is not directed toward a particular factual situation, and does not constitute legal advice. If you have any questions of a legal nature, or of how the law applies in a particular situation, please consult with a lawyer.


Canadian copyright law is governed by the Copyright Act, which protects original literary, artistic, musical and dramatic works. A partial list of works which are entitled to copyright protection in Canada includes: books, newspapers, dictionaries, manuals, catalogues, magazines, pamphlets, computer software, paintings, drawings, design trade-marks, sculptures, architectural works, engravings, dramatic works, photographs, films, videos, scripts, maps, lyrics and musical works.

One very significant right granted to the owner of Canadian copyright in a work, is the exclusive right to reproduce the work, (or any substantial part of the work) in any material form whatever.

For example, the owner of copyright in a book has the right to stop others from making copies of the book, (or any substantial part of the book), whether the copying is by way of a commercial printer, a photocopy machine, or by way of a computer image/text scanner.

In addition to acquiring the exclusive right to copy the work, the owner of copyright in a work also receives an entire "bundle" of rights, some of which are specific to the type of work in question. For example, in the case of a dramatic work, copyright includes the right to convert the dramatic work into a novel. In the case of computer software, it includes the right to rent the software to others. Each different type of work has its own bundle of copyrights.

Copyright comes into existence automatically, at the time the work was created, and, in the case of most works, it continues until the end of the calendar year in which the author of the work dies (regardless of whether the author has sold or assigned the copyright in the work or not), and continues for an additional period of 50 years. There are some notable exceptions to this rule however. One such exception relates to photographs, which are protected by copyright from the time the photograph was taken, up until the end of the calendar year in which the photograph was taken , and for an additional period of 50 years (that is, the termination date of copyright protection for photographs is linked to the date the photograph was taken, and not the date of the photographer's death).

"Moral" rights are also protected under Canadian copyright law. Moral rights include the author's right to be associated with the work by name, or pseudonym and the right to remain anonymous, and include the author's right to the integrity of the work (that is, the author's right to stop the work from being distorted, mutilated or modified, to the prejudice of the author's honour or reputation, or from being used in association with a product, service, cause or institution).

Moral rights remain with the author of a work, even where the work, or the copyright in the work, has been sold or assigned. Moral rights continue to exist in a work for the same length of time as do the other copyrights in the work in question.

Copyright in a work may be assigned or licensed to others. All assignments and licenses of copyright must be in writing to be valid. The mere transfer of physical possession of a work does not thereby include an assignment of copyright in the work.

While moral rights may not be assigned, these rights may be waived by the author, in whole, or in part. A mere assignment or license of copyright in a work does not, in and of itself, amount to a waiver of moral rights in the work. It is therefore recommended that, where possible, all assignments and licenses of copyright include a written waiver of the author's moral rights.

Each work in which copyright subsists should be marked with a notice in the following form: " Smith and Company, 1996". That is, the notice should display the copyright symbol , followed by the name of the owner of copyright, followed by the year in which the work was published. This notice is to be displayed in such manner and location as to give reasonable notice of a claim of copyright in the work.

Copyright may be registered in Canada at the Canadian Copyright Office located in Ottawa/Hull. While registration of copyright in a work is not required in Canada, registration does provide benefits to the copyright owner, and is recommended.

When registering copyright in Canada, there is no need to file a copy of the work with the Canadian Copyright Office (in fact, the Canadian Copyright Office will return any works which anyone attempts to file with them!). It is therefore possible to obtain a copyright registration in Canada without having to disclose any of the confidential information which may be contained in the work (although you will have to disclose the work's title).


A BOUT THE AUTHOR

Philip B. Kerr is a Canadian lawyer, Registered Canadian patent and Registered Canadian trademark agent. He is a partner in the patent law firm of Kerr & Nadeau, whose law practice is restricted to patent, trademark and copyright law. He was called to the bar in 1986.

Kerr & Nadeau has two locations:

Ottawa Location:

Kerr & Nadeau
200 Isabella Street
Suite 405
Ottawa, Ontario
CANADA K1S 1V7

Telephone: (613) 238-2002
Facsimile: (613) 230-2725

Halifax Location:

Kerr & Nadeau
1959 Upper Water Street
Purdy's Wharf, Tower I, Suite 1800
Halifax, Nova Scotia
Canada, B3J 3R7

Telephone: (902) 422-6376
Facsimile: (902) 422-9149




For further information on patents, please contact Philip B. Kerr.