With the recent tabling in the House of Commons of Bill C-61, the government of Canada is, for the second time in three years, seeking to make important and long-sought-after changes to Canada's Copyright Act.
Perhaps the most important element of the bill's proposed reforms is that it will modernize the law of copyright in Canada by bringing it into the age of the Internet. This is important, because in its current state, the law in Canada is still not settled with regard to the legality of posting copyright-protected materials on the Internet for others to download.
The legislative changes proposed by Bill C-61 would not only make such an activity illegal, but it would also exempt Internet service providers from liability in such cases. These proposed reforms, as well as the host of others contained within Bill C-61, have led many of those following the media debate surrounding Bill C-61 to believe that in its current state, Canada's copyright law is fatally flawed. This is certainly not the case, and given that Bill C-61 will likely not survive and pass through our minority Parliament into law, it is perhaps appropriate to consider some of the major protections that the current Copyright Act still can and still does provide to Canada's copyright owners.
1. Protection of original works
Canada has had its own copyright legislation in place since 1924, with the basis of the current act coming into force in 1988. The purpose behind the Copyright Act is the protection of original artistic, musical, dramatic and literary works (which includes computer programs), that are created and exist in a fixed form.
It is important to note at the outset that the level of a work's originality required to establish copyright protection is exceedingly low. According to the Supreme Court of Canada in the 2004 Law Society case, in order for a work to be considered original, the author of the work must have exercised only a minimal amount of skill and judgment in producing the work. Although the determination of a work's originality can only be ascertained on a case-by-case basis, in almost all situations, as long as it can be shown that the work was created by the author and was not merely a copy, the court's will extend copyright protection to it. Examples of "original" works to which copyright protection has extended include the layout of income tax filing forms, computer databases, websites, dance and exercise routines and summaries of longer literary works.
Given the above, it is thus possible to take information that is readily available to the public, rearrange it in a minimally creative way, and end up with a work that will receive the benefit of copyright protection. In fact, compiling the works of others into another work (termed a "compilation") can result in an original work to which copyright protection extends. Because the threshold for receiving copyright protection is so low, and the gambit of works to which copyright protection extends is so broad, copyright is arguably the most powerful of intellectual property rights.
2. Copyright protection does not require registration (but it's a good idea)
Although the registration of copyright ownership is provided for in Canada's copyright system, by law, copyright exists the moment an original work is created, so registration is not required in order to claim copyright. However, registering one's copyright in a work is a quick, easy and inexpensive process that could save you as the copyright owner thousands of dollars in legal fees, should your copyright become the subject of infringement proceedings. A Certificate of Registration of Copyright, properly obtained from the Canadian Intellectual Property Office, is on its face, accepted by the courts as proof that copyright extends to the work in question, and that the owner listed is the work's legal owner. Without such a certificate, a claim of copyright ownership must be proven if ownership is disputed. Because the owner may not be the original author of a work, proving that the chain of title in the work extends from the author (who is the original owner in most cases) to the owner exerting his or her copyright, may be a difficult task.
Another important aspect of registration is that in an infringement action, the likelihood of a plaintiff recovering monetary damages is increased, as the registration is considered by the courts to be notice of legal ownership to would-be infringers. Given the importance that registering copyright has in prosecuting infringement cases, it is a common litigation strategy that copyright in a work is registered by those contemplating an infringement action before the start of litigation. Even in such cases, which can see copyright registration occurring years after the work at issue is created, a court will have to assume that the certificate of registration is valid, unless significant evidence to the contrary is presented.
3. Copyright is truly international in scope
Unlike the other intellectual property rights available for protection in Canada, such as trademarks, patents and industrial designs, copyright protection for authors and owners in Canada extends automatically to most industrialized nations. This is because Canada, as a party to both the Bern Convention and the Universal Copyright Convention, has agreed to extend reciprocal copyright benefits to citizens of the other treaty countries. In other words, without the requirement of copyright registration, Canadian citizens who are resident in Canada when they author a work automatically obtain copyright protection for that work abroad. The only additional criterion for this added protection is that in many convention countries, notice of copyright must appear on the work (the famous © symbol next to the owner's name and year of first publication), which is not a requirement for obtaining copyright protection in Canada. Most importantly for Canadians, the reciprocal benefits under these treaties extend to the United States of America, the United Kingdom, and Western Europe.
4. Authorship and ownership
The Copyright Act distinguishes between those rights held by authors of copyrighted works and the rights held by owners of those works. In almost all cases, the first author of a work is considered by law to also be the work's first owner. There are, however, important exceptions to this general rule. In cases where a work is authored pursuant to the terms of an employment contract, the first owner of the work is not the author, but the employer. This is especially true of cases when the work is created "in the course of employment." Conversely, an author employed under a contract for services (i.e. "on contract") is able to claim ownership over the work created, unless the contract or other document assigns the copyright in the work to the employer. In many cases, whether or not a worker is considered a contractor or an employee may not be easy to legally determine, such that the ownership of any works generated under such relationships can be cast into doubt. It is therefore always a good practice for employers to draft copyright ownership clauses into their contracts with both employees and contractors, in order to help resolve any copyright ownership issues that may arise in the future.
A second exception to the "author as first owner" rule arises in the cases of commissioned photographs. If a photographic work is commissioned from a photographer and paid for, the Copyright Act holds that the photographer is not the first owner of the resulting photograph. Rather, it is the person commissioning the photograph that is its first owner. This is an interesting quirk of Canadian copyright law that does not occur in other international jurisdictions. Professional photographers should therefore take note that a written agreement will need to be put in place that transfers ownership of the copyright in the commissioned photographic work to the photographer. Without such an agreement, a photographer who makes copies of or sells the commissioned photograph could be infringing the owner's copyright in the photograph. It should be noted that one of the proposed reforms of Bill C-61 would be to change the law regarding commissioned photographs such that the photographer would be deemed the first owner of the work, just as is the case currently in the United States.
5. Enforcement of intellectual property rights
Copyright protection is long-term, and under the Copyright Act, copyright generally subsists in a work for a period of 50 years, plus the life of the author. Contrast this with the protection afforded to patents, which is only 18 to 20 years, and industrial designs, which is only 10 years. As long as valid copyright subsists in a work, the owner of the copyright has the sole right to produce or reproduce his/her work or a substantial part of the work in any material form. This includes the right to make reproductions into a three-dimensional form of works of art that were originally two-dimensional. Like other intellectual property (IP) rights, copyright ownership is a property right that can be freely transferred, licensed and made subject to a security interest. Also like other IP rights, the only mechanism for enforcing ownership rights in copyright is by commencing an infringement claim, either in the Superior Court of Justice or the Federal Court of Canada. However, unlike other IP rights, the Copyright Act provides that enforcement proceedings may be brought by summary application, where evidence is proven via affidavit. This procedure, if used in the right case, can provide for a much more cost effective enforcement solution as compared to a full-blown court action.
A successful infringement claim (which is much more likely to occur if the copyright is properly registered) will entitle the copyright owner to recover damages (i.e. lost sales) or to recover the defendant's profits (called an "accounting of profits"). In cases where damages may only be nominal, or may be difficult to prove, a plaintiff may instead claim statutory damages, which range from $500 to $20,000 per work infringed. The ultimate amount recovered as statutory damages will be up to the court, and the amount can be substantial in certain circumstances. For example, a 2006 Federal Court involving Microsoft netted the software giant over $500,000 in statutory damages, as well as $200,000 in punitive damages. Finally, it should also be noted that a successful plaintiff in a copyright infringement action may also be entitled to an injunction, preventing the defendant from continuing its infringing activity. If an injunction is part of the relief sought, the prospective plaintiff should bring their action in the Federal Court, as the resulting court order will automatically be enforceable Canada-wide.
The debate surrounding Bill C-61 will continue long after the bill dies on the order paper. However, as the above demonstrates, Canada's copyright laws are not moribund, and they still offer substantial protection to those who are in the business of copyright ownership.
