Canadian Copyright Law

Sociologyindex, Sociology Books 2011

Copyright law in Canada largely reflects international treaties signed by it. Canada is a party to the Berne Convention for the Protection of Literary and Artistic Works of 1886.

The Canadian case, CCH Canadian Ltd. v. Law Society of Upper Canada, re-evaluated the meaning of "original" and found that for a work to be original it must be the result of the exercise of "skill and judgement".

Skill, means the "use of one's knowledge, developed aptitiude or practised ability in producing work", and judgement, meaning the "use of one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work".

Originality does not require any novelty or creativity though it requires intellectual effort beyond mere mechanical exercise.

The determination of originality on the basis presented in CCH Canadian depends on the facts. For a large part, it depends on degree to which the work originated from the author. The medium or form used is significant. Whether it comprises elements that are in the public domain or not, whether it the ordering of data or facts, or whether the form is pedestrial or novel. Mere
selection is generally not enough. As well, it is significant to consider whether there are any artistic elements to it.

Copyright provides the protection of expression of ideas. This entails that there must be a form, or "fixation", to the expression. It is fixation that distinguishes an expression from an idea.

In Canadian Admiral Corp. v. Rediffusion, the court considered fixation: "for copyright to exist in a 'work' it must be expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance". In this case, the court found that there was insufficient fixation in the live broadcast of a sports event. Any sort of broadcast, telecast, or display of a spectacle on its own is not sufficient to be fixed. At the least, it must be simultaneously recorded in some fashion to be fixed.

To the possible exception of choreographed works, there is a requirement that the work be recorded in a relatively permanent form. Typing a note into a computer screen may be sufficiently permanent. Some cases have shown that unstructured speech or other spontaneous or improvised creations, such as a sports game, cannot contain copyright.

Both facts and ideas are by their very nature uncopyrightable. This will often create difficulties when it becomes necessary to separate the idea from the expression as well as in the separation of fact from the arranging and use of those facts. Where the distinction between idea and expression becomes obscured the Courts often take a precautionary view that it cannot be
copyrighted so as to let others express the same idea.

Minor designs that are largely ornamental or functional like coloured blocks used as tools in an educational program are excluded..

The copyright of an artist's work is owned directly by the artist with the exception of works created in the course of employment.

Government works
Section 12 of the Copyright Act reserves copyright for all works produced by the government for a period of 50 years following the end of the calendar year when the work has been performed, unlike the United States, where the government does not hold copyright. In addition, the Copyright Act applies to government works, but "without prejudice to any rights or privileges of the Crown".

All documents produced by the Government of Canada belongs to the Government.

Section 12 of the Copyright Act is the provision dealing with Crown copyright and gives copyright to the Crown in works that are “prepared or published by or under the direction or control of Her Majesty or any government department.”:

"Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall ... belong to Her Majesty and ... shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty
years following the end of that calendar year" 

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