There are some things on which a copyright can be obtained and some things on which a copyright cannot be obtained. Why ? Because copyright is a person made law, hence people made its rules, and one of the rules that people made for copyright law is a rule which states on what types of things you can get a copyright. If the thing you have created is not one of the types of things on which a copyright can be obtained, then you cannot get a copyright on that thing. It is a simple concept which can be hard to understand. If Person "A" spends ten minutes writing a letter to his friend Person "B", person "A" has a copyright on that letter. If Person "A" was to spend ten years inventing an amazing machine, Person "A" would not get a copyright on that machine. Why ? Because copyright law does not include machines as a thing on which copyright can exist. That is a simple concept which can be hard to understand; because why should Person "A's" ten minutes of letter writing effort be rewarded with a copyright, yet his ten years of effort to invent an amazing machine not be rewarded with a copyright ? Because that's what the copyright law says. Why is it illegal to drive 101 kph in a 100 kph zone, when at that speed the extra 1kph is irrelevant; because the law says it's illegal; that it, that's the whole reason.
For things on which a copyright can be obtained your copyright will automatically come into existence, in virtually all of the world's countries (there are very few exceptions) FREE of charge, as soon as you have completed that thing. Whether your creation is a: painting, poem, photograph, play, book, short story, movie, song, computer program, sculpture, letter, contract, (or other thing on which copyright can exist) YOUR copyright automatically exists, free of charge and without the need to register it, in the huge majority of the world's countries, in that thing which you have created, as soon as you have completed it; as long as it is something to which copyright applies. You do not have to do anything or pay anything to automatically have a free copyright in your copyrightable creation. Until fairly recently in most of the world's countries there was no way to register your copyright. Canada and the United States have been exceptions. The States has had a form of copyright registration for over 200 years, and Canada has had a form of registration for about 100 years. Presently there are other countries that also have a copyright registration system, which, while not technically mandatory, are sometimes very useful. To me this sounds like legal double talk; on the one hand saying that you automatically get a free copyright as soon as you have finished your copyrightable work, and on the other hand saying that there are countries in which it is very useful to register your copyright (which is not free). It sounds like double talk because it is one and three quarters talk, and one and three quarters is pretty close to double. However, I make no apology for that double talk, because those are not my rules, they are the rules of the governments of the countries which have copyright registration systems; I am simply telling you their rules, hence I have nothing for which to apologize.
In countries that have a copyright registration system, as I wrote above, you do receive your copyright free of charge, automatically, without having to do or pay anything, as soon as your copyrightable work is finished; however, if you don't register your copyright in that country you may not be able to enforce it to the same extent as you could enforce a copyright which you also paid to register in that country. As stated above, Canada and the United States have each had copyright registrations systems for a very long time. Therefore, while in each of Canada and the United States you do have a free of charge, automatic copyright on your copyrightable work as soon as it is finished; it is often better if you also register your copyright in each of Canada and the United States, if you want your best chance of being able to enforce it to the fullest extent to which a copyright can be enforced. I go into considerable detail on whether or not it makes sense to pay to register your copyright in Canada and in the United States and in some of the other countries in which a copyright can be registered, in my article: "Should I Register My Copyright ?"
As written above, copyright is a person made (ie. government created) protection for certain things. The Canadian federal government created copyright protection in Canada by passing an act called the Copyright Act. To get copyright protection in Canada what you did must fall within the criteria set out by the government in the Copyright Act and in the Copyright Regulations. The United States and most European and Asian countries have very similar rules to those of Canada regarding on what you can get a copyright and on how that happens automatically and free of charge.
There are things on which you can get copyright protection and things on which you cannot get copyright protection. Section 5 of the Canadian Copyright Act states that in Canada you can get a copyright on any of the following things:
- artistic works, which include: paintings, drawings, maps, charts, plans,
photographs, engravings, sculptures, works of artistic craftsmanship, buildings,
structures, models of buildings, models of structures, and compilations of artistic
- dramatic works, which include:
(a) any piece for recitation, choreographic work or mime, the scenic arrangement
or acting form of which is fixed in writing or otherwise,
(b) any cinematographic work, and
(c) any compilation of dramatic works;
- literary works, which include: tables, computer programs, and compilations of
literary works; and
- musical works, which means any work of music or musical composition, with or
without words, and includes any compilation thereof.
There are things on which copyright protection can NOT be obtained. Except in certain other very limited circumstances, which are fully explained in the Copyright Act, you cannot get a copyright in Canada on anything that is not in the above list of items. For example, if you invent a new motor, or a new drug, or a new metal alloy, or any new physical object that performs a function, you cannot get a copyright on that object, because such things are not listed in the above list.
You also cannot get a copyright on the name/trademark you use for your business, unless it is long enough and original enough to qualify as a literary work. (Thus far in my career I have not known of any business names that were long enough and original enough to qualify as a literary work.)
Copyright cannot be obtained on mathematical formulae or equations.
Copyright cannot be obtained on concepts or ideas.
There is nothing natural or intuitive about copyright law. Copyrights are available for what the Copyright Act says they are available and for nothing more.
When you read the list of those things on which you can get copyright protection, you noticed that it stated: "artistic works, which include:"
In that context, the word "include" means that the items which came after the word "include" are, for the Copyright Act, considered to be artistic works. The use of the word "include" also meant that the list which came after the word "include" was not a complete list, but was just a list of those things which the government wanted to make sure were considered to be artistic works for copyright purposes. Therefore, things which are not in the list that followed the word "include", but which are also artistic works, can also receive copyright protection if they are original. Consequently, if you have created a thing which is not in the list, which you believe is an artistic work, it may qualify for copyright protection.
The same as was written in the above paragraph about how the word "include" affects what will qualify as an artistic work for copyright purposes also applies to what will qualify as a dramatic work or a literary work for copyright purposes, as their lists were also each preceded by the word include. The government was not intending to exclude anything that would normally be considered as an artistic work, a dramatic work, or a literary work; the government was simply making sure that the things which it listed after the word include would also be considered, for copyright purposes, as artistic works, dramatic works, or literary works, as the case may be.
For example, the list for literary works was:
literary works, which include: tables, computer programs, and compilations of literary works. That list did not contain fiction books, text books, biographies, short stories, poems, and other things which are clearly literary works. The word include was simply put there by the government to tell people that in Canada, in the Copyright Act, tables, computer programs, and compilations of literary works, are also considered to be literary works for copyright purposes. The government was not intending to say that books, and other things which are traditionally considered as literary works, are not literary works. The government was saying that in addition to whatever else is normally a literary work, for copyright purposes, tables, computer programs, and compilations of literary works are also considered to be literary works.
However, for a musical work it stated, "musical works, which means …". Therefore the list that followed the words "musical works, which means..." was an exclusive list, and anything that was not in that list will not be considered to be a musical work for copyright purposes.
You might also be wondering why the government felt it necessary to say that a compilation of artistic works is also an artistic work, a compilation of dramatic works is also a dramatic work, a compilation of literary works is also a literary work, and a compilation of musical works is also a musical work. It seems obvious that if you have compiled artistic works or dramatic works or literary works or musical works, as the case may be, they remain artistic works, dramatic works, literary works or musical works, hence why say that a compilation of artistic works is an artistic work, etc. ? The answer is that what the Copyright Act is really saying is that a compilation of artistic works is a new artistic work separate and apart from each of the artistic works in that compilation. In other words, each of the artistic works in the compilation is its own artistic work, and the compilation is its own separate artistic work (ie. for copyright purposes the compilation is a new and different artistic work from each of the artistic works in the compilation). The same applies to compilations of literary works, compilations of dramatic works and to compilations of musical works.
The Canadian Copyright Act also tells you a copyright comes into existence in Canada in one of the above listed items. Section 5 of the Copyright Act sets out the most common way in which a person gets a copyright in Canada. Section 5 and other sections of the Copyright Act also provide additional ways in which a copyright can be obtained in Canada. Those additional ways are not discussed in this paper.
The most common way in which a person gets a copyright in Canada is by:
(a) creating an original artistic work, original dramatic work, original literary work or original
musical work, and
(b) on the date they finished creating their original artistic, original dramatic, original literary
or original musical work, being a Canadian citizen or Canadian subject, or being a person
ordinarily resident in Canada, OR, by on the date they finished creating their original
artistic, original dramatic, original literary or original musical work, being a citizen or
subject of, or a person ordinarily resident in, a treaty country.
Hence, if at the time you finish creating an original artistic work, original dramatic work, original literary work or original musical work, you are a Canadian or a Canadian subject, or you are ordinarily resident in Canada, or you are a citizen or subject of a treaty country or you are ordinarily resident in a treaty country, then as soon as you finish creating the work, you automatically have a copyright in that work, without having to do anything and without having to pay anything.
As stated above, section 5 of the Copyright Act requires that the work be a work of the type on which copyright protection can be obtained, and section 5 of the Copyright Act also requires that the work be original. If the work is not of a type on which copyright protection can be obtained, then you cannot get a copyright on it. In addition, if the work is not original, than you cannot get a copyright on it.
When a provincial government passes a law it is called a piece of legislation. When the federal government (ie. parliament in Ottawa) passes a law it is called an act. Both legislation and acts usually define some of the important words which they use. In copyright law the word "original" is the most important word in the Copyright Act, because if the work is not original there is no copyright available for it no matter what type of a work it is.
However, the Copyright Act fails to define the word "original". That is a strange and annoying thing for parliament to have done. For parliament to have left the most important word in the entire Copyright Act undefined is bizarre. Obviously the word "original" is the most important word in the act, because the entire act does not apply to works which are not original, even if they are works of the specified types on which copyright can be obtained.
If I print one of Shakespeare's plays on my backyard fence, is that an original work. I've never seen a fence with a Shakespeare play printed on it, can I now claim that I own the copyright in a backyard fence with a Shakespeare play printed on it ? Can I at least own the copyright in a backyard fence that looks like my fence and which has the specific Shakespeare play printed on it which I printed on my fence ? I would say that printing a Shakespeare play on a backyard fence is original. In my entire life, throughout all of the cities to which I have traveled, I have never seen it done. For reasons I do not know the federal government decided that the Copyright Act would not answer that most important of all questions: what does original mean ? The Copyright Act refuses to tell us when a work is an original work. Different people would have different opinions on whether or not I own the copyright in a backyard fence that looks like my fence and has a Shakespeare play printed on it. Some people would say it was an original work, others would say that its not an original work. If I then said that I am only claiming the copyright in a backyard fence that looks like my fence with the same Shakespeare play printed on it as I printed on my fence, and in the same font style that I used and in the same positioning and spacing on the fence as I used, the opinions of the people might change. In any event, opinions would differ. The Copyright Act would be worthless, because without knowing when something is original, it is impossible to know when the act will apply. Until the government amends the Copyright Act to tell us what they mean by "original" or until some other government entity with the power to definitively say what "original" means, steps in to give official meaning to the word "original" as it is use in the Copyright Act, the act is worthless.
In common law countries, such as Canada, when the government has "dropped the ball" or has simply refused to "carry the ball" and say what they mean, the court will step in and lay a meaning onto a word which has many different reasonable meanings to different people.
What I understand the above to mean is that in Canadian copyright law, something is original if:
(a) it is creative; or
(b) the creator of the work used more than a trivial amount of skill and judgment to
produce the work.
Keep in mind that skill and judgment is different than effort. A person might have put in a huge amount of effort to produce the work they produced, but no skill or judgment. If that is the situation then whatever work they did will not qualify for copyright protection. Another person might have put in very little effort, but might have used sufficient skill and judgment, in which case their work, if it is of a type that can receive copyright protection, will qualify for copyright protection. It's not a question of fair, it's a question of what the Copyright Act says and what the court stated "original" means.
The tests in the United States and in many other countries, for when a work is original, is NOT the same as the above test set out by the Supreme Court of Canada. Therefore, while your work might be copyright protected in Canada based on the Supreme Court of Canada's test for originality, your work might fail the originality test of the United States and other countries, and therefore not be covered by copyright protection in those countries. In my opinion that is ridiculous, because the international copyright treaties to which Canada, the United States and those many other countries belong, was supposed to extend copyright protection in those countries, to works made in Canada by Canadians.
If the federal government had placed a definition of the word "original" in the Copyright Act, and those other countries had placed the same definition of the word "original" in their copyright acts, then the goal of those international treaties would have come closer to having been accomplished. However, as of the date of the writing of this article the word "original" is not defined in the Canadian Copyright Act, and therefore we have what I explained above.
What else can be protected by copyright ?
There are a few additional things, which in my experience are not relevant to most people, on which copyright protection can sometimes be obtained. This paper was not intended to discuss every possible thing that can be protected by copyright; if you believe you have created or done or will create or will do something that should be protectable by copyright which this paper does not indicate is copyright protectable, you should read the Copyright Act, contact the Canadian Copyright Office and ask them, or consult a lawyer.
Section 56.(1) of the Copyright Act states the following:
"Application for the registration of a copyright in subject-matter other than a work may be made by or on behalf of the owner of the copyright in the subject-matter, an assignee of the copyright, or a person to whom an interest in the copyright has been granted by licence."
What does copyright ownership give you and when does it expire ?
The big questions which this article does not answer, but which I answered in my article
"How Long Does a Copyright Last ?", are: what does copyright ownership give you and how long does it last.