Types of intellectual property
- Patent: devices, formulas, processes, or improvements to existing patents.
- Trademark: word, symbol, logo, or distinctive shape used to distinguish a product.
- Industrial design: shape, pattern, or ornamentation.
- Copyright: protects text, pictures, art, audio recordings, film, software, etc.
- Confidential information and trade secrets: ideas and information that should be kept confidential because of the terms of a relationship.
Copyright law in Canada
- Falls under federal jurisdiction, under the Copyright Act, enacted in 1924.
- Major amendments to the Copyright Act were made in 1988 (Bill C-60), 1997 (Bill C-32), and 2012 (Bill C-11: Copyright Modernization Act).
- This book does not discuss the “copyright pentalogy,” five supreme court rulings on copyright made on July 12, 2012. See The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law, edited by Michael Geist, for a discussion of the meaning of these five cases. Available as a p-book, e-book, or free PDF.
- How copyright works: property rights versus copyright protection. There’s a right to physical property, but also rights to intangible property. When a user buys a book, they have certain rights: to read or give away the book, but other rights are protected: to reproduce or translate the book.
Creations eligible for copyright protectionA work is protected by copyright as soon as it is created, as long as it fulfills the following criteria:
- Original: It is a new work, not a copy.
- Fixed: It is set down in some reasonably durable form: written down (even if it’s on a napkin), recorded, saved on a hard drive, etc.
- Creator is a citizen or legal resident of Canada or another copyright treaty country, or the work is first published in a copyright treaty country.
International copyright lawCanada can extend copyright protection within countries that offer reciprocal protection to Canadian works. The following are international copyright treaties:
- Berne Convention
- Universal Copyright Convention (UCC)
- World Trade Organization (WTO)
- WIPO Copyright Treaty (WCT)
- WIPO Performances and Phonographs Treaty (WPPT) (for sound recordings and performances)
How to get copyright protection
Protection is automaticUnder Canadian copyright law, there are no formalities to obtaining copyright: it the protection exists as soon as the work comes into existence. You don’t have to register the work, deposit it, mark it with a special symbol, or include any particular statement. All countries that subscribe to the Berne Treaty (this includes Canada, the U.S., and the E.U.) have to allow automatic copyright when the work is created.
Adding a copyright symbol and statement (optional)
- Makes it absolutely clear that the material is protected.
- Provides the name of the copyright holder to people seeking permissions.
Format of a copyright noticeThe copyright notice should include the © symbol, the year of first publication, and the name of the copyright owner. Optionally, you can add the years of major revisions, or use a range of years.
Registration and deposit (optional)You can register your work with the Canadian Intellectual Property Office (CIPO).
- Optional, but may be helpful in a court case (you may be entitled to better remedies).
- Can be used to register a grant of interest (an assignment or licensing of rights to a work), and may give the registered rights holder priority over the unregistered one.
- Registration does not require—or allow—you to deposit a copy of the work.
- The fee is $50 for online registration, and processing takes about five days.
“Poor man’s copyright”This method of proving ownership of a work seems to have entered folklore. The idea is that you put a copy of the work into an envelope and mail it to yourself. You leave the envelope sealed until you open it in court to prove that the work existed on the postmarked date. Skeptics point out that an obvious way to cheat is to mail yourself an unsealed envelope and put the work in later. Harris’s book describes poor man’s copyright as a method of providing evidence of existence and ownership, but suggests using registered mail, which presumably requires the envelope to be sealed, or mailing it directly to your lawyer.
Registration with the U.S. Copyright OfficeCopyright protection is also automatic in the United States. However, you can choose to register your work with the U.S. Copyright Office. One of the benefits of doing this is that they accept deposits, which can help you prove a case down the road.
Library and Archives Canada depositLibrary and Archives Canada (LAC) requires copies of publications to be deposited, but this has nothing to do with copyright.
Other depositing servicesProfessional organizations and writers’ unions may provide depositing services. Using such a service will not cause you to be registered in the Canadian copyright database, but it might help you prove ownership of a work.
International copyright lawInternational copyright laws are relevant when you distribute your work outside of Canada, or use works created outside the country.
International copyright treatiesThere is no international copyright law, just agreements between countries. In copyright treaties, each country agrees to give citizens of other signing countries the same protection they give their own citizens. One exception is for length of the copyright term.
- Canada is a member, which means that Canada’s Copyright Act has to meet the levels of protection specified in the Convention, and that Canada protects the rights of creators from countries that belong to the Berne Convention.
- The text and a list of member countries is at Berne Convention for the Protection of Literary and Artistic Works.
- The Berne Convention specifies automatic copyright protection. Once a creator in a member country has copyright, copyright protection is automatically granted in all member countries. Berne Convention countries are not allowed to require any formalities for obtaining copyright.
Other international conventions
Material protected by copyrightNot protected:
Additional resources: Canadian law
- Canadian Copyright Law, by Lesley Ellen Harris. See this post for a review of the book.
- The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law, edited by Michael Geist.