Copyright law of Canada

The copyright law of Canada governs the legally enforceable rights to creative and artistic works under the laws of Canada. Canada passed its first colonial copyright statute in 1832 but was subject to imperial copyright law established by Britain until 1921. Current copyright law was established by the Copyright Act of Canada which was first passed in 1921 and substantially amended in 1988, 1997 and 2012. All powers to legislate copyright law are in the jurisdiction of the Parliament of Canada by virtue of section 91(23) of the Constitution Act 1867.

Colonial copyright law
It is unclear to what extent British copyright law, or imperial law, starting with the 1709 Statute of Anne, applied to then colonies including Canada. The first Canadian colonial copyright statute was the 1832 Copyright Act, long title “An Act for the Protection of Copy Rights”, passed by the Parliament of the Province of Lower Canada, granting copyright to residents of the province. The 1832 Copyright Act was short, and declared ambitions to encourage emergence of a literary and artistic nation and to encourage literature, bookshops and the local press. After the Provinces of Upper and Lower Canada (Ontario and Quebec) were reunified to form the Province of Canada, the 1832 Copyright Act was repealed and with minor changes enacted as the 1841 Copyright Act, long title “An Act for the Protection of Copy Right in this Province”.

The 1841 Copyright Act only granted copyright in books, maps, charts, musical compositions, prints, cuts and engravings. Copyright was only awarded if it was registered and a copy of the work deposited in the office of the registrar of the province before publication. The author or creator was required to be resident in the province in order to obtain copyright under the Act, though the Act was unclear on whether the work needed to have been first published in the Province. The objective of the colonial copyright statutes was to encourage the printing of books in Canada, though this was not made explicit to avoid conflict with imperial copyright law, which was primarily designed to protect English publishers. Britain forcefully demanded guarantees that British and Irish subjects were eligible for protection under Canadian colonial copyright law in the same way residence of the Canadian colony were.

One year after Canada passed its colonial law on copyright, the UK Parliament passed a new imperial statute on copyright, the Copyright Act 1842. The statute explicitly applied to “all Parts of the United Kingdom of Great Britain and Ireland, the Islands of Jersey and Guernsey, all Parts of the East and West India, and all the Colonies, Settlements, and Possessions of the Crown which now are or thereafter may be acquired”. Any book published in London would therefore be protected by copyright law in the entire British Empire, including Canada, which was a young British colony. The imperial Copyright Act 1842 had an immediate impact on Canada and became infamous because it effectively prohibited the importation and sale of reprints of any book under British copyright printed in other countries. Previously Canada had mostly imported books from the United States, but it was now unlawful for Canadian merchants to engage in this trade. Instead merchants were required to import books under British copyright from printers in Britain, though British market prices were unaffordable for most residents of Canada. As British publishers systematically refused to license books for printing to Canadian printers, the Canadian Government questioned the responsible self-government arrangement. In a provocative move Canada passed “An Act to extend the Provincial Copyright Act to Persons Resident in the United Kingdom” in 1847, granting British authors protection only if their works had been printed and published in the Province of Canada. The 1841 and 1847 statutes were subject to minor revision in 1859 and the requirement for the works to be printed in Canada, buried in the text, was later noticed and denounced by the imperial British Government.

The British North America Act 1867 became Canada’s first constitution and granted the Federal Government power to legislate on matters such as copyright and patents. In 1868 the Canadian Federal Parliament passed “An Act respecting Copyrights” re-establishing the publication requirements of the 1847 statute, prompting demand from the British Government that Canada should revise its laws so as to respect imperial copyright law. Under imperial copyright London printers had a monopoly and attracted most authors from the colonies to first publish with them because imperial copyright law granted protection in all colonies. London printers refused Canadian printers the license to print books first published in London and authors had little incentive to first publish in Canada, as colonial copyright law only granted protection in Canada. The Canadian Federal Government thought to further strengthen the Canadian print industry with a 1872 bill that would have introduced a projected licensing scheme that allowed for a reprinting of books under foreign copyright in exchange for a fixed royalty. The British Government opposed the bill and it never received Royal Assent. In order to encourage the local printing and publishing industry Canada made a number of diplomatic and legislative efforts to limit the effects of the imperial Copyright Act 1842. In a compromise arrangement Canada passed the Copyright Act 1875 granting British authors protection under Canadian copyright law if they reprinted or republished their works in Canada. It received Royal Assent the same year and was subsequently amended in 1889, 1890, 1891, 1895, 1900 and 1906. The requirement of reprint and republication was always maintained. The Copyright Act 1921 eventually removed copyright from control of the UK Parliament.

The Copyright Act of Canada
The first Copyright Act of Canada was passed in 1922 which came into force in 1924. Though Canada was no longer subject to imperial copyright law, it was closely modelled on the UK Copyright Act 1911. Until 1988 the Copyright Act of Canada saw only minor amendments while the Federal Government engaged in a number of studies on copyright reform. New technological developments and the emergence of computers, photocopiers and recording devices led to a recognition that copyright law needed to be updated. Between 1954 and 1960 the Royal Commission on Patents, Copyright, and Industrial Design, known as the Ilsley Commission, published a series of reports. Its brief was "to enquire as to whether federal legislation relating in any way to patents of invention, industrial designs, copyright and trade-marks affords reasonable incentive to invention and research, to the development of literary and artistic talents, to creativeness, and to making available to the Canadian public scientific, technical, literary and artistic creations and other adaptations, applications and uses, in a manner and on terms adequately safeguarding the paramount public interest."

In 1977 the Canadian department of Consumer and Corporate Affairs (now Industry Canada) published the Keyes-Brunet Report, a working paper with the full title "Copyright in Canada: Proposals for Revision of the Law". In 1984 the Federal Government published "From Gutenberg to Telidon: A White Paper on Copyright" and in 1985 the House of Commons' Standing Committee on Communications and Culture published "A Charter of Rights for Creators - Report of the Subcommittee on the Revision of Copyright".

Reform: Phase one 1988
Eventually a copyright reform process was initiated in two phases: Phase one was started in 1988 and saw several amendments to the Copyright Act of Canada of 1921. Computer programs were included as works protected under copyright, the extent of moral rights was clarified, the provision for a compulsory license for the reproduction of musical works was removed, new licensing arrangements were established for orphan works in cases where the copyright owner could not be found, and rules were enacted on the formation of copyright collecting societies and their supervision by a reformed Copyright Board of Canada.

Reform: Phase two 1997
Phase two of the reform took place in 1997 and saw the Copyright Act of Canada amended with a new remuneration right for producers and performers of sound recordings when their work was broadcast or publicly performed by radio stations and public places such as bars. A levy was introduced on blank audio tapes used for private copying and exclusive book distributors were granted protection in Canada. New copyright exceptions were introduced for non profit educational institutions, libraries, museums, broadcasters, and people with disability, allowing them to copy copyrighted works in specific circumstances without the permission of the copyright owner or the need to pay royalties. Damages payable for copyright infringement and the power to grant injunctions were increased, and the 1997 reforms introduced a mandatory review of the Copyright Act of Canada.

Reform: Phase three 2012
After becoming a signatory country of World Intellectual Property Organization Internet Treaties in 1996, Canada implemented its terms in 2012 with the passage of Bill C-11, The Copyright Modernization Act. Bill C-11 focuses on digital lock provisions, the protection of authors' rights, and the public's rights concerning the copying of legally obtained materials.

Bills to amend the Copyright Act
After becoming a signatory country of World Intellectual Property Organization Internet Treaties in 1996, three bills were introduced from 2005 to 2010 in an attempt to implement the treaty. Some of the ideas discussed in the bills include a notice-and-notice system, an exception for mash-ups, an exception for making special-formats of works by non-profit organizations for the benefit of people with disabilities. Eventually, in 2012, Bill C-11, The Copyright Modernization Act was passed into law.

In June 2005, the government introduced Bill C-60 to amend the Copyright Act. The bill was never passed into law as Parliament was dissolved after a motion of non-confidence was passed in November 2005. In Summer 2008, the government introduced Bill C-61 in their continuing effort to update the Copyright Act, with many similarities to the previous Bill C-60 and the American DMCA. The bill died before it passed into law when the Conservative government called an election in September 2008. On June 2, 2010, Bill C-32 was tabled, but like the two previous bills it was similarly pushed aside during the election in May 2011. Bill C-11, The Copyright Modernization Act: An Act to Amend the Copyright Act, was tabled on September 29, 2011, but later passed June 18, 2012.

Sources of law
Like most other common law countries there are no inherent rights to works, performances, or sound recording at the common law. Copyright exists solely in statute. According to section 91(23) of the Constitution Act, 1867 the federal government is granted exclusive power to enact laws related to copyright. The evolution of copyright in Canada has been guided by international treaties signed by Canada that try to unify copyright laws across the globe.

Canada is a party to the Berne Convention for the Protection of Literary and Artistic Works of 1986 and has signed but not yet ratified both the WIPO Copyright Treaty of 1996 and the WIPO Performances and Phonograms Treaty of 1996.

Protected Works
A work must be original and can include literary, dramatic, musical and artistic works or compilations. Copyright is granted the moment the work is created and does not distinguish work of a professional or that of an amateur. There is also no distinction between for profit or commercial use or for hobby purposes. Literary work includes anything that is written, such speeches, essays and books and may be in any form. However, a short string of words or spontaneous speech is not covered. Dramatic works include the characters, scenes, choreography, cinematography, relationship between characters, dialogue and dramatic expression. Artistic works include sculptures, paintings, photographs, charts and engravings. Musical works include any musical compositions with or without words. Unexpressed ideas are not protected work.

Copyright
Copyright includes the right to first publish, reproduce, perform, transmit and show in in public. Additionally, other subsidiary rights such as abridgment and translation are also conferred.

Moral Rights
The concept of moral rights refers to the idea that an author has a separate right over their works, in addition to copyright. Despite any assignment or sale of copyright, the author retains their moral rights, a form of personal attachment to the works. Moral rights can only be waived. There are three attributes of moral rights: attribution, integrity and association. Moral rights were originally raised in the Berne Convention and was later incorporated into the Copyright Act. Moral rights allows the author of the work to determine how the work is being used and what the work is being associated to.

Neighbouring Rights
Neighbouring rights do not relate to the creative works themselves, but to the performance, transmission and reproduction. Neighbouring rights is a series of rights relating to one piece of work. Neighbouring rights are generally discussed in the music industry (e.g. performer's rights, recording rights). Neighbouring rights arose in the Rome Convention and was later adopted into the Copyright Act.

Copyright Board
The Copyright Board of Canada is a federal economic regulatory board that has four primary functions: (1) establish royalties users must pay for copyrighted works; (2) establish when the collection of such royalties is to be facilitated by a "collective-administration society"; (3) oversee agreements between users and licensing bodies; and (4) grant users licenses for works when the copyright owner cannot be located.

Canadian Intellectual Property Office (CIPO)
CIPO is an agency associated with Industry Canada. Its duty is to administer intellectual property include the registration of patents, trade-marks, copyrights, industrial designs and integrated circuit topographies.

Collectives
Collection of royalties and enforcement of copyright is often too costly and difficult for Individual owners of works. Therefore, collectives are formed to facilitate the collection of fees. Collectives may file proposed tariff with the Copyright Board or enter into agreements with users.

Society of Composers, Authors and Music Publishers in Canada (SOCAN)
Canadian composers and lyricist assign performance and communication rights to the Society of Composers, Authors and Music Publishers in Canada (SOCAN), which then sells blanket licenses of its repertoire. The licensing fees collected is distributed back to Canadian composers and lyricists.

Canadian Private Copying Collective (CPCC)
To cope with the large number of private copying of audio recordings, in 1997 provisions requiring the collection of levies on blank audio recording media was implemented. The collected proceeds, though distributed to Canadian and foreign composers, only Canadian recording makers and performers may enforce the levies.

The private copying levies are collected by the Canadian Private Copying Collective. As of 2011, the levy imposed for private copying is 29¢ for each CD-R, CD-RW, CD-R Audio or CD-RW Audio.

Access Copyright
Access Copyright is the collective of English publications. The tariff proposed by Access Copyright was approved in 2009 and it replaces the former Canadian Schools/Cancopy License Agreement. Recent focus of Access Copyright has been towards the education and government sectors. Since 2009, Access Copyright has increased its tariffs significantly from year to year. For 2010-2012, Access Copyright sought to increase its tariff to compensate for digital copying of works and the copying of sheet music. The 2010-2012 tariffs proposed by Access Copyright is $15.00 per student per year, $24.00 per civil servant. For 2011-2013, Access Copyright proposes to increase the tariff to $45.00 per student per year. The Copyright Board's adoption of the tariffs was judicially reviewed by the Federal Court of Appeal in 2009 the decision of the court was released in 2010.

Technology circumvention
The technological aspect of the proposed bill has led to many groups stating publicly their opposition to the digital lock specifications within the proposed C-11. A wide swath of Canadian arts and education groups have objected to these provisions, arguing principally that such measures infringe on legitimate usage of copyright holding.

The Canadian Federation for the Humanities and Social Sciences has also expressed concern about the effect such provisions will have on legitimate research. Technical Protection Measures (TPMs; often referred to as “digital locks”) are proposed in the bill and may have repercussions on both access and the permanency of digital collections. They argue that the mandate of libraries, museums and archives should enable them to retain intermediate copies of digital material for the purposes of maintenance and preservation.

Fair Dealing
Unauthorized copying of works can be permissible under the fair dealing exemption. In 2004, the Supreme Court of Canada in its decision CCH Canada v. Law Society of Upper Canada made a number of comments regarding fair dealing. Fair dealing is to be examined on a case-by-case basis. The purpose of the dealing, character of the dealing, amount of the dealing, alternatives of the dealing, nature of the work and effect of the dealing are factors that can contribute to fair dealing. Those favouring a broad interpretation of fair dealing argue there ought to be reasonable unauthorized reproduction of works because it facilitates creativity and free expression. They also argue that fair dealing provides reasonable access to existing knowledge. Those arguing that fair dealing ought to be more restrictive and specific state that fair dealing will reduce revenue to those creating works. They also argue the reproduction of works and sends a wrong message to the public that works are free as long as it falls under this banner. Their economic argument is that fair dealing should not compensate for the market's inability to meet the demand for public knowledge.