COPYRIGHT

What a Copyright is / What Does Copyright Protect 
/ Copyright Ownership / Moral Rights /

What a Copyright is

Copyright is defined in the Copyright Act as the sole right to produce or reproduce a work, or any substantial part thereof, in any material form. With certain exceptions, copyright protection of a work lasts for the life of the author plus 50 years.

Copyright arises automatically upon the creation of a work. Unlike patents and other forms of intellectual property, there are no formal requirements to register a copyright for it to subsist in a work, although a registration may be obtained for a nominal fee. A registration is accepted by a Court as good evidence of ownership.

In general terms, any person who, without the consent of the owner of the copyright, copies a substantial part of a work infringes the copyright in that work. The infringer is liable to the owner for any damages he may have suffered due to the infringement and, in addition, for any profits that the infringer has made from the infringement. The owner may also obtain an injunction to stop further infringing activity.

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What Does Copyright Protect

Copyright exists in every original literary, dramatic, musical and artistic 'work' of art. It applies to the form of expression of an idea, not to the idea itself. In other words, the work must be in a fixed form.

The work must be original. As long as it has not been copied, the work need not be novel or inventive (in the patent sense) nor show any artistic merit. It must simply originate from the author. To determine this, the courts may examine the time and labour spent to produce the work, and the skill exhibited in its preparation.

A "literary work" includes tables, compilations, translations and computer programs. A "computer program" is defined as "a set of instructions or statements, expressed, fixed, embodied or stored in any manner, that is to be used directly or indirectly in a computer in order to bring about a specific result".

An "artistic work" includes paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship and architectural works of art. An 'architectural work of art" means any building or structure or any model thereof. Thus, a structure, including models of the structure, and architectural and engineering plans of the structure appear to fall within the rubric of artistic works, and hence protected by copyright, with certain exceptions.

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Copyright Ownership

The author of a work is the first owner of the copyright of the work. However, where the author is an employee under a contract of service or apprenticeship and the work was made in the course of his employment, then the employer will be the first owner of the copyright unless there is an agreement to the contrary.

A work is not restricted to having a single author, but may have two or more "joint" authors. A work of joint authorship is defined as "a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors". This is typically the case with complex engineering plans or computer software which are the product of several persons.

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Moral Rights

In Canada, the Copyright Act grants two independent rights,  copyright and moral rights. Copyright, as discussed above, relates to the sole right to produce or reproduce a work or any substantial part thereof.

Moral rights, on the other hand, include the author's right to claim authorship in the work whenever published, and the right to the integrity of the work by restraining distortion, mutilation or modification to it. Thus, the author may prevent certain use of the work which would prejudice the author's honour or reputation. These moral rights subsist for the same term as copyright in a work.

An assignment of a copyright does not automatically constitute an assignment of a moral right because an author cannot assign moral rights but may waive them in whole or in part. Therefore, a copyright assignment from an author should also include an express waiver of the author's moral rights in the work in question.

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For more free information about copyrights see:

The "Guide to Copyrights" from the Canadian Intellectual Property Office (CIPO) .

 

Copyright  Patents Canada 1999,2000,2001, 2002, 2003,2004,2005,
PATENTS CANADA is a Trade-Mark of Thomas E. Malyszko

* In association with Field LLP, Alberta, Canada 
Last updated:August, 2010