Copyright basics: Copyright Act, infringement, fair dealing and moral rights
What is copyright?
Copyright literally means the right to copy. It is a form of intellectual property that gives the author (for example, the writer, photographer, programmer, or corporation) an exclusive right to control the use, reproduction, publication, adaptation, translation and performance of the work.
For some startups, their copyrighted material is some of the most valuable property they own. Ironically, it is also the cheapest to initially protect—the process is free
Copyright in Canada
In Canada, copyright is obtained automatically when an original work is created and fixed in a tangible form, such as a:
- Movie or photograph
- Electronic file or software
- Performance for an audience
Where does copyright not apply?
Not everything can be protected by copyright. Copyright protects the expression of an idea and not the idea itself. In other words, a start-up cannot copyright the idea of a website that matches individuals. It can, however, copyright its layout, pictures, and compilation of user information.
Other items which generally cannot be protected by copyright include:
- Brand names
- Short phrases and titles
- Methods (such as a method of teaching or accounting)
- Factual information
- Works already in the public domain
In Canada, the author retains“moral rights” even if he or she sells or assigns their copyright to someone else. The term moral rights basically means that no one is allowed to distort, mutilate or otherwise modify the work in a way that is prejudicial to the author’s honour or reputation. Moral rights cannot be sold or licensed but they can be waived.
Infringement and exceptions according to the Copyright Act
Infringement is the failure to follow the law or agreement governing the use of the work. Since the Copyright Act gives the author an exclusive right to the work, any unauthorized use or copy of it is infringement.
The Copyright Act provides that copying a work for purposes of private study, research or education, or for criticism, review or news reporting is generally not infringement. The legal term for this is “fair dealing.” (Do not confuse “fair dealing” with the concept in US law of “fair use.”)
While Canadian law does not require registration to protect your work, you should include your name, year of first publication and either the word “copyright” or the © symbol to ensure that you are protected in other countries.
If you do decide to register your work, you can do so for about $50 via the website of the Canadian Intellectual Property Office (CIPO).
The benefit of registering is that it records you as the author. This notifies others that you are the registered owner and gives you certain rights if you decide to enforce protection. Registration in itself does not prove that you are not infringing on someone else’s work, nor does it enforce your rights.
To search for owners of registered copyrighted material in Canada, you can perform a quick search online by checking the CIPO copyright database.
The general rule is that copyright lasts for the life of the author plus 50 years after his or her death.
Making money from copyright
The most common way of making money from copyright is through licensing. In essence, the author permits someone else to reproduce his or her work for a fee. The author can restrict the use in any number of ways, including the following:
- Number of copies
- Geographical location
- Length of time
- Intended use
For a more detailed discussion of this topic, see the article, Copyright strategy.
Note: The information in this article is for general informational purposes only. It is not legal advice.
Copyright Act (R.S., 1985, c. C-42). Retrieved December 9, 2009 from http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-42/latest/rsc-1985-c-c-42.html
Canadian Intellectual Property Office. (2005, January). A Guide to Copyrights. Retrieved December 9, 2009 from http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr02281.html
World Intellectual Property Organization. (n.d.). Copyright and Related Rights. Retrieved December 9, 2009 from http://www.wipo..int/about-ip/en/copyright.html
Berne Convention for the Protection of Literary and Artistic Works (Paris text 1971). Retrieved December 9, 2009 from Cornell University Law School: http://www.law.cornell.edu/treaties/berne/overview.html
Universal Copyright Convention. Retrieved December 9, 2009 from United Nations Educational, Scientific and Cultural Organization: http://portal.unesco.org/culture/en/ev.php-URL_ID=1814&URL_DO=DO_TOPIC&URL_SECTION=201.html
Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations. Retrieved December 9, 2009 from World Intellectual Property Organization: http://www.wipo.int/treaties/en/ip/rome/