Creative Commons Canada

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Canadian Copyright Law

Note: The information provided on this webpage is of a general nature and does not constitute legal advice. Moreover, it addresses only some issues in copyright law. If you have have questions about how copyright law applies in a particular situation, you should consult a lawyer.

Copyright Law

  1. What is copyright?
  2. What law governs copyright in Canada?
  3. What is intellectual property?
  4. Can anything be copyrighted?
  5. Do I have to register my copyright in order to get protection?
  6. Do I have to mark my work in any special way to claim copyright protection?
  7. How long does copyright last?
  8. What is the "public domain"?
  9. What is the "copyright bargain"?
  10. What rights do copyright holders have?
  11. What are exclusive or monopoly rights?
  12. What are moral rights?
  13. What is "fair dealing"/"fair use"?

What is copyright?

Copyright is a system to promote the creation of and access to artistic, literary, musical, dramatic and other creative productions. In principle, the creator, i.e., the author, maker or artist, etc., has the exclusive right to authorize or to prevent copying. In practice, the power to control copying more frequently devolves on publishers and distributors to whom the creators have assigned their rights.

The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the copyright holder (or, more accurately, to prevent someone other than the holder from appropriating whatever benefits may be generated). For this reason, the exclusive rights of copyright holders, sometimes called monopoly rights, are subject to certain limitations in favour of public access for "fair dealing", such as news reporting, research, criticism or private study, or for other purposes, such as archiving by an educational institution.

The proper balance lies not only in recognizing the copyright holder's rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them. Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.

For a more detailed discussion of the balance in copyright, refer to What is the "copyright bargain"? and the Supreme Court of Canada's decisions in Théberge v. Galerie d'Art du Petit Champlain inc. and CCH Canadian Ltd. V. Law Society of Upper Canada.

What law governs copyright in Canada?

In Canada, the federal Parliament has exclusive legislative authority over copyright. Section 89 of the federal Copyright Act provides that no copyright can subsist in Canada other than under the Act.

What is intellectual property?

Copyright, as a legal subject matter, is often grouped with other forms of protection for commercially-valuable intangibles, which collectively are called "intellectual property". The other valuable intangibles, in addition to copyright, include:

Can anything be copyrighted?

No, there are several requirements to claim copyright protection. First, a work must fit into one of the four major categories in the Copyright Act, it must be either: literary, dramatic, musical or artistic.

Second, according to the common law the work must be fixed in some tangible form meaning that only the expression of an idea but not the idea itself can copyrighted. Simplified, the means, for example, the plot of a book in the writer's head could not be copyrighted, but the manuscript incorporating the plot could. The claim is not to ideas, but to the order of words, and this order has a marked identity and a more or less permanent endurance.

Third, the work must be "original". The legal definition of originality has given rise to considerable difficulty but it is generally agreed that "originality" in copyright does not mean that the work must be the expression of original or inventive thought, but only with the expression of thought. The Act does not require that the expression must be in an original or novel form, but that it should originate from the author and not from another work.

A final technicality requires that there must be a connection between the creator of a protected work and either Canada or a member of any number of other international trade or copyright treaties, including the Berne Convention. Since almost every significant state qualifies, few works fall outside the net of protection and this requirement has become largely moot.

Do I have to register my copyright in order to get protection?

No, although copyrights may be registered in Canada, protection is effective even without registration. Article 5(2) of the Berne Convention provides that a copyright arises once a work or sound recording is made, or once a performance or broadcast signal occurs. The copyright remains in full force whether or not it is registered.

Do I have to mark my work in any special way to claim copyright protection?

Until 1988 American authors were required to provide notice of copyright in the form © NAME OF AUTHOR + YEAR OF PUBLICATION. Now, copyright arises automatically upon creation, provided the work meets the minimum criteria for copyright protection. See Can anything be copyrighted?.

How long does copyright last?

In Canada, copyright lasts for the life of the author plus fifty years (s.6 of the Copyright Act) For example, if a poet penned a poem in 1925 and lived another eighty years, her poem would not enter the public domain until December 31, 2055, for a total of 130 years. However, if the same poet died in 1936, her poem would have already entered the public domain in 1986.

Copyright terms differ in duration in a number of instances. Section 9(1) for example provides that copyright in a jointly authored work lasts until fifty years after the last author dies, while s.6.1 provides that copyright in anonymous and pseudonymous works lasts for the shorter of fifty years from first publication or seventy-five years from the making of the work. Until recently, copyright was perpetual for many works that were not exploited at the time of the author's death. This class comprised literary, dramatic, and musical works that were not published, performed in public, or telecommunicated to the public, and engravings that were not published. Researchers, historians, and archivists chafed under this rule, which made the copying or publication of much nineteenth-century and even earlier material risky and in 1999, it was amended to the standard life plus fifty rule for most works.

The duration of copyright also differs in some jurisdictions. Europe recently increased its standard term to seventy years past the author's death (while refusing to protect foreign works beyond the term in their country of origin). The United States followed suit in 1998 by adding twenty years retroactively to all its existing and future copyrights. See Sonny Bono Copyright Extension Act, 1998. Calls for longer periods of protection continue.

What is the "public domain"?

In copyright, the realm of works that are not protected either because their term of protection has expired, or because they were released by the creator without intention of claiming copyright, is known as the public domain. Works in the public domain can be appropriated by anyone without liability for infringement.

What is the "copyright bargain"?

Copyright, in the Anglo or common law tradition is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator. As early as 1769 in the case of Millar v. Taylor, an English judge wrote:

It is wise in any state, to encourage letters, and the painful researches of learned men. The easiest and most equal way of doing it, is, by securing to them the property of their own works... He who engages in a laborious work... which may employ his whole life, will do it with more spirit, if, besides his own glory, he thinks it may be a provision for his family.

But, as the Supreme Court recently decided in Theberge at para. 3, the "proper balance among these and other public policy objectives lies not only in recognizing the creator's rights but in giving due weight to their limited nature."

"[This balance] is reflected in the exceptions to copyright infringement... which seek to protect the public domain in traditional ways such as fair dealing for the purpose of criticism or review and to add new protections to reflect new technology..."

It is inefficient in social and economic terms to overprotect artists and authors as it would be self-defeating to underprotect them. Excessive control by copyright holders would stifle a meaningful public domain and the ability of others to innovate.

What rights do copyright holders have?

Copyright is actually a bundle of rights, which can be divided into two categories: exclusive or monopoly rights and moral rights. See What are exclusive or monopoly rights? and What are moral rights?.

What are exclusive or monopoly rights?

Exclusive rights in copyright, according to s.3(10) of the Act, include the right to produce or reproduce a work or any substantial part of a work, in any material form; the right to perform a work, or any substantial part, in public; to publish an unpublished work or any substantial part; the right to translate a work; to convert a dramatic work, i.e. a play to a novel; to convert a dramatic work by way of performance, i.e. to convert a novel to a play; to make any sound recording; to adapt a work as a cinematographic work, i.e. a novel to a movie; to communicate the work by telecommunication to the public, i.e. to send a work to another person using an e-mail program; to present a work at an artistic exhibition; to rent a computer program or a sound recording; and, to authorize somebody other than the copyright holder to do any of the above acts.

What are moral rights?

Under s.14.1(1) of the Copyright Act, an author of a work has a right to the integrity of their work and to be associated with their work by name, unless they choose otherwise. Unlike exclusive or monopoly rights, moral rights cannot be assigned to another person, but they can be waived in whole or in part.

According to s.14.1(2), the duration of moral rights is the same as for other rights.

What is "fair dealing"/"fair use"?

In Canada, most exceptions to the exclusive rights of copyright holders are called "fair dealing" rights. Fair dealing is a system which enumerates an exhaustive list of exceptions to holder's rights which would otherwise govern the reproduction of protected works, examples include private study, research, criticism and news reporting. Fair dealing is a closed system and outside the stipulated uses, it does not apply.

The U.S.-style "fair use" is, by contrast, an open-ended system which adopts a non-exhaustive set of uses, and focuses on principles for determining whether a use strikes an equitable balance between user and copyright holder interests. These principles include, but are not limited to: determinations of the purpose and character of the use; the nature of the work; the amount and substantiality of the portion used in relation to the entire work; and, the effect of the derived work on the market for the original. Fair dealing relies on similar principles, but only within the scope of the named exceptions. The term fair use is thus more expansive than fair dealing and the terms should not be used interchangeably.

Levies and Canada's Private Copying Regime

  1. What is "private copying"?
  2. What happens to the collected levies?
  3. Why do I have to pay a "tax" on audio cassettes, compact discs, MP3 players, etc.?
  4. What are "audio recording media"?
  5. Is it legal to import blank audio recording media from outside of Canada for which a levy has not been paid?

What is "private copying"?

"Private copying" refers to the copying of pre-recorded music by a person for their own personal use. In Canada, the private copying regime applies only to music, not to other works. The Copyright Board has a good explanation of the private copying regime on its website.

What happens to the collected levies?

Manufacturers and importers of blank media in Canada remit the levies to the Canadian Private Copying Collective (CPCC), which is responsible for distributing the monies to artists. The CIPPIC distributes the monies to organizations representing artists, on the basis of "a representative sample of radio airplay and album sales". See the CPCC site for more information on distribution of the levies. Both the time-lag in distribution and its fairness are an issue: many argue that the current method tends to benefit large corporate copyright holders and a few heavily promoted artists to the detriment of independent and new artists (who use blank media and must therefore pay the levy).

Why do I have to pay a "tax" on audio cassettes, compact discs, MP3 players, etc.?

Until recently, copying a recording of a musical work without the copyright holder's permission was illegal under the Copyright Act, unless it was for "fair dealing" or other permitted purposes. See What is "fair dealing"/"fair use"?. In practice, copyright holders were unable to either prevent or license private copying since such activities, by definition, took place in private. Consequently, in 1998, Parliament legalized the copying of music by an individual for his or her private use and, in exchange, copyright holders were allowed to impose a levy on blank audio recording media, such as CDs. See What are "audio recording media"?.

What are "audio recording media"?

Under the Copyright Act, an "audio recording medium" means a recording medium, regardless of its material form, onto which a sound recording may be reproduced and that is of a kind ordinarily used by individual consumers for that purpose. This is a broad definition and the media that qualify will change over time, subject to market realities and technological change. In late 2003, the Copyright Board certified the following as falling within the meaning of the definition and subject to the following tariffs:

Removable Media
Non-removable Memory
More information

Is it legal to import blank audio recording media from outside of Canada for which a levy has not been paid?

Yes. A levy is payable on every blank audio recording medium manufactured in or imported to Canada for the purpose of trade; it is illegal to sell or otherwise trade levy-free media. However, anyone may freely import media and use them for any purpose except trade, even for copying music. Such activities are commonly referred to as the "grey market". The grey market is not illegal.

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This page last updated: 29 OCT 04 02h21

Webpage URL: http://www.cippic.ca/en/faqs-resources/copyright-law/