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In Canada, for most things on which there is a copyright, if the creator of the work is known (ie. if it is known who authored the work) the copyright lasts for the life time of the author plus 50 years after the year in which the author died.
(In copyright law, whoever created the work is called the author, even if the work is not a book or other work of literature. In normal life you would call the person who painted a picture the artist or painter; in copyright law the person who paints a picture is called the author of that picture. In normal life you would call the person who makes a film, a film maker or a producer; in copyright law he or she is called the author of the film; in copyright law a composer who writes a piece of music is not referred to as the composer, but is the author of that music, etc.)
Sections 6 to 12 of the Copyright Act list the exceptions to copyright lasting for 50 years after the year in which the author died. A summary of some of the more common exceptions follows.
When there is more than one author of a work, then the significant date of death for counting the copyright period is the date of death of whichever of the authors dies last.
If the identity of the author of a work remains unknown, then copyright in the work lasts until the lesser of:
(a) 50 years after the year in which the work was first published; or
(b) if the work was not published, then either 50 years or 75 years after the year in which
the work was completed (determining whether it is 50 years or 75 years depends on too
many variables to discuss in this paper; if whether it is 50 years or 75 years is relevant to
you, read sections 6 to 9 of the Copyright Act.)
However, if at some time after the author died, his or her identity becomes known, then the copyright duration goes back to lasting for the usual 50 years after the year in which the author died.
For cinematographic works which do NOT have a dramatic character, copyright in the cinematographic work lasts for 50 years after the year it was completed, unless it was published within 50 years of its completion, in which case the copyright lasts for 50 years after the year of first publication.
Regarding all works on which there is a copyright, if the author is not a Canadian and is not a national of a country that is a party to the North American Free Trade Agreement, read section 9 of the Copyright Act to determine if that fact will cause the copyright term to expire earlier.
Regarding all works on which there is a copyright, if the work was made for the government then it is unknown whether copyright in that work will last for 50 years after it was first published, or for some other period of time, as section 12 of the Copyright Act leaves that point unknowable without contacting the government department and asking for the details.
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When does the Copyright Act consider a work to have been published ?
In the Copyright Act the term "work" is the general term usually used to mean anything on which a copyright can be obtained. For example, a book is a work, a song is a work, a painting is a work, a movie is a work, and many other things on which copyright can be obtained are generally referred to in the Copyright Act as a "work". However, as mentioned briefly at the end of my article "How Do I Get A Copyright ?", there are a few things on which copyright can be obtained which are not referred to as a work in the Copyright Act.
Subsection 2.2 of the Copyright Act is the main section of the act that states when copyright law considers a work to have been published. The following is a summary of what I consider the most common ways a work is considered to have been published, as defined in subsection 2.2; however, to know all of the rules regarding when something is considered to be published you must read all of subsection 2.2 of the Copyright Act and any other relevant sections of the Copyright Act. If it was possible to give you a simple list of what is considered publication I would do that, however, the Copyright Act is not simple or clear on all things that will constitute publication. In addition to other things, subsection 2.2 states that:
- for works in general, publication is when copies of the work are made available to the
public,
- for architectural works, when they are constructed,
- for artistic works, one way in which they are published is when they are incorporated
into an architectural work that has been constructed,
- a sound recording is published when copies are made available to the public,
However, the following things are NOT publication:
(a) the performance in public, or the communication to the public by telecommunication, of a
literary, dramatic, musical or artistic work or a sound recording,
(b) the exhibition in public of an artistic work,
(c) the issue of photographs and engravings of sculptures and architectural works,
(d) except when the copyright owner is suing someone for infringement, for the purposes
of the Copyright Act, a work or other subject-matter is not deemed to be published or
performed in public or communicated to the public by telecommunication if that act is
done without the consent of the owner of the copyright.
Sections 2.3 to 2.7 of the Copyright Act define each of the following terms: "telecommunication", "communication to the public by telecommunication", "rental", "motive of gain", "exclusive distributorship" and "exclusive license". If those terms are relevant to you, then you should read those definitions and the other sections in the act dealing with those matters.
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In Canada, What Do You Get When You Have A Copyright ?
What Protection Does Copyright In Canada Provide ?
Section 3 of the Copyright Act states that in relation to a work, copyright protection gives the owner of the copyright the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, and to perform the work or any substantial part thereof in public, and if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right:
- to produce, reproduce, perform or publish any translation of the work, and
- in the case of a dramatic work, to convert it into a novel or other non-dramatic work, and
- in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into
a dramatic work by way of performance in public or otherwise, and
- in the case of a literary, dramatic or musical work, to make any sound recording,
cinematograph film or other contrivance by means of which the work may be mechanically
reproduced or performed, and
- in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and
publicly present the work as a cinematographic work, and
- in the case of any literary, dramatic, musical or artistic work, to communicate the work to
the public by telecommunication, and
- to present at a public exhibition, for a purpose other than sale or hire, an artistic work
created after June 7, 1988, other than a map, chart or plan, and
- in the case of a computer program that can be reproduced in the ordinary course of its
use, other than by a reproduction during its execution in conjunction with a machine,
device or computer, to rent out the computer program, and
- in the case of a musical work, to rent out a sound recording in which the work is
embodied, and
- in the case of a work that is in the form of a tangible object, to sell or otherwise
transfer ownership of the tangible object, as long as that ownership has never previously
been transferred in or outside Canada with the authorization of the copyright owner, and
- to authorize any of the above things.
As stated above, section 3 of the Copyright Act states that copyright protection gives the owner of the copyright the sole right to do the above listed things with the work on which the copyright protection exists. Therefore, if someone else does any of the above things, without the permission of the copyright owner, the copyright owner can sue that someone else for copyright infringement.
Clearly, if someone does any of the above things with the entire work on which copyright exists, they have infringed the copyright. However, as also stated in Section 3 of the Copyright Act , copyright protection also extends to any "substantial part" of the copyrighted work.
(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 the ambiguous operative words and phrases which they use.) HOWEVER, in the Copyright Act the phrase "substantial part" is NOT defined. It is a very important phrase, as it tells you what portions of a work are protected, and what portions of a work can be freely used by anyone, even though the work as a whole is copyrighted. If you don't know how much of a work amounts to a substantial part of that work, then you don't know how much you can use without the permission of the copyright owner; and the copyright owner does not know when you have infringed her work by taking only some of it.
Parliament was very wrong to have failed to define the phrase "substantial part" in the Copyright Act . In this author's opinion, for parliament to have left that important phrase undefined was a neglection of their duty to make the law. It makes the Copyright Act uncertain; it leaves the Copyright Act ambiguous on the second most important issue which the Copyright Act is required to deal with. That very important issue which the Copyright Act intentionally failed to deal with is: 'How much of a copyrighted work (that is less than the whole work) is protected by the Copyright Act ?'
In common law countries, such as Canada, when the government has failed to write enough words in the law for people to know what the law says, the court will step in and pick one of the many equally valid possible meanings the law has, and declare that meaning to be what the government intended to have written into its law; and hence that court's chosen meaning becomes the law. That means that on those issues it is the court that is making the law, not parliament. In this author's opinion that is contrary to Canada's Constitution which requires parliament to make the law, and gives no power to the court to make the law. Nevertheless, as parliament failed in the Copyright Act to say what amounts to a substantial part of a work, the court got to say what amounts to a substantial part of a work, hence, the court is the body that made the law which tells you when something is a substantial part of a work. In this author's opinion that is wrong and contrary to Canada's Constitution, however, we have no power to cause parliament to do its duty and we have no power to prevent the court from making what amount to laws. Therefore, all that is left for us is to learn what the court said and follow it as the law.
The present explanation for Canadian copyright law purposes, which has been given of the phrase "substantial part", was given by the Supreme Court of Canada in the case of Cinar Corporation v. Robinson, 2013 SCC 73. In that case the Supreme Court of Canada stated all of the following indented numbered paragraphs which appear below in quotation marks:
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"[26] A substantial part of a work is a flexible notion. It is a matter of fact and degree. "Whether a part is substantial must be decided by its quality rather than its quantity": Ladbroke (Football), Ltd. v. William Hill (Football), Ltd., [1964] 1 All E.R. 465 (H.L.), at p. 481, per Lord Pearce. What constitutes a substantial part is determined in relation to the originality of the work that warrants the protection of the Copyright Act. As a general proposition, a substantial part of a work is a part of the work that represents a substantial portion of the author's skill and judgment expressed therein."
"[27] A substantial part of a work is not limited to the words on the page or the brushstrokes on the canvas. The Act protects authors against both literal and non-literal copying, so long as the copied material forms a substantial part of the infringed work. As the House of Lords put it,
. . . the "part" which is regarded as substantial can be a feature or combination of features of the work, abstracted from it rather than forming a discrete part. . . . [T]he original elements in the plot of a play or novel may be a substantial part, so that copyright may be infringed by a work which does not reproduce a single sentence of the original.
(Designers Guild Ltd. v. Russell Williams (Textiles) Ltd., [2001] 1 All E.R. 700 (H.L.), at p. 706, per Lord Hoffmann; see also Nichols v. Universal Pictures Corporation, 45 F.2d 119 (2nd Cir. 1930), per Learned Hand J.)"
"[28] The need to strike an appropriate balance between giving protection to the skill and judgment exercised by authors in the expression of their ideas, on the one hand, and leaving ideas and elements from the public domain free for all to draw upon, on the other, forms the background against which the arguments of the parties must be considered."
"[35] The approach proposed by the Cinar appellants is similar to the "abstraction-filtration-comparison" approach used to assess substantiality in the context of computer software infringement in the United States: see Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2nd Cir. 1992); B. Clermont, "Les compilations et la Loi sur le droit d'auteur: leur protection et leur creation" (2006), 18 C.P.I. 219, at p. 237; B. Tarantino, " 'I've Got This Great Idea for a Show' ? Copyright Protection for Television Show and Motion Picture Concepts and Proposals" (2004), 17 I.P.J. 189, at pp. 199-200. It has been discussed, though not formally adopted, in Canadian jurisprudence: Delrina Corp., at paras. 43-47. I do not exclude the possibility that such an approach might be useful in deciding whether a substantial part of some works, for example computer programs, has been copied. But many types of works do not lend themselves to a reductive analysis. Canadian courts have generally adopted a qualitative and holistic approach to assessing substantiality. "The character of the works will be looked at, and the court will in all cases look, not at isolated passages, but at the two works as a whole to see whether the use by the defendant has unduly interfered with the plaintiff's right": J.S. McKeown, Fox on Canadian Law of Copyright and Industrial Designs (loose-leaf), at p. 21-16.4 (emphasis added)."
"[36] As a general matter, it is important to not conduct the substantiality analysis by dealing with the copied features piecemeal: Designers Guild, at p. 705, per Lord Hoffman. The approach proposed by the Cinar appellants would risk dissecting Robinson's work into its component parts. The "abstraction" of Robinson's work to the essence of what makes it original and the exclusion of non-protectable elements at the outset of the analysis would prevent a truly holistic assessment. This approach focuses unduly on whether each of the parts of Robinson's work is individually original and protected by copyright law. Rather, the cumulative effect of the features copied from the work must be considered, to determine whether those features amount to a substantial part of Robinson's skill and judgment expressed in his work as a whole."
"[39] The question of whether there has been substantial copying focuses on whether the copied features constitute a substantial part of the plaintiff's work ? not whether they amount to a substantial part of the defendant's work: Vaver, at p. 186; E. F. Judge and D. J. Gervais, Intellectual Property: The Law in Canada (2nd ed. 2011), at p. 211. The alteration of copied features or their integration into a work that is notably different from the plaintiff's work does not necessarily preclude a claim that a substantial part of a work has been copied. As the Copyright Act states, infringement includes "any colourable imitation" of a work: definition of "infringing", s. 2."
"[40] This is not to say that differences are irrelevant to the substantiality analysis. If the differences are so great that the work, viewed as a whole, is not an imitation but rather a new and original work, then there is no infringement. As the Court of Appeal put it, "the differences may have no impact if the borrowing remains substantial. Conversely, the result may also be a novel and original work simply inspired by the first. Everything is therefore a matter of nuance, degree, and context" (para. 66)."
"[41] The trial judge engaged in a qualitative and holistic assessment of the similarities between the works, which took into account the relevant similarities and differences between the works. For example, he gave little weight to similarities that were due to the generic island setting of both works: the fact that beaches, luxuriant vegetation, and bananas are present in both works was, at best, a "minor" similarity (paras. 621 and 631). He also gave little weight to the alleged similarities between Gladys, a female character in Sucroë, and Gertrude, a character in Curiosity (paras. 577-81). He examined whether Robinson Sucroë could be said to be as curious as Robinson Curiosity, and recognized that curiosity was a less predominant personality trait in Sucroë than it was in Curiosity (paras. 529-31). He concluded that, despite any differences between the works, it was still possible to identify in Sucroë features copied from Curiosity and that these features constituted a substantial part of Robinson's work. The trial judge did not err in approaching the matter in this way."
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I have quoted extensively from the above Supreme Court of Canada case to demonstrate that the issue of what portion of a work will be considered a sufficiently substantial part of a copyrighted work to result in that portion of the work being copyright protected cannot be answered easily and cannot be answered in the abstract. There is no specific number of words which can be freely copied, and there is no specific number of words on which it can be guaranteed copyright protection exists. In addition, what will amount to a feature of a work which will be considered a substantial part of the work, such that that feature is copyright protected is also not always easily determinable. Then there is the factor of the court's discretion, which means that what one one judge will consider a substantial part of the work and hence subject to copyright protection, another judge will consider to not have been a substantial part of the work and hence not subject to copyright protection.
My understanding of the present state of the law in Canada on what will amount to a substantial part of a copyrighted work is that it will depend on the extent of the originality in the work as a whole, and on the originality in the portion in question. My analysis of the above Supreme Court decision is that: (i) each portion that has originality in that portion has a significant chance of being considered a copyright protected substantial portion of the work; (ii) identifiable original features in a work, even if they are only identifiable by looking at the work as a whole, and even if they are not expressed as a whole in any one part of the work, also have a significant chance of being considered a copyright protected substantial portion of the work; and (iii) portions of a work that are not original, no matter how long they are, will not be a substantial portion which is protected by copyright, unless they are copied verbatim, in which case, depending on their length, they may be protected by copyright.
As mentioned in the above court decision, from the definition of infringement in section 2 of the Copyright Act, copyright also extends to any colourable imitation made or dealt with in contravention of the Copyright Act. A colourable imitation is something that would be the same as the original except for cosmetic differences, which is another way of saying differences that make no real difference. Hence a person cannot make irrelevant changes to an existing work and expect to thereby escape the copyright protection on the existing work. In addition, a person cannot take a copyright protected substantial portion of an existing work, make irrelevant changes, and hope to escape the copyright protection on that substantial portion of the work.
However, the bottom line is that in a copyright infringement lawsuit involving a substantial part of the work, it will be the judge who decides what Canada's copyright law protects, because the Copyright Act does not tell you what constitutes a substantial part of the work. Hence the people involved will have no way to know what the law says until the end of the lawsuit when the judge tells them what the law says. In my opinion Canada's Parliament did NOT do its duty to tell Canadians what the law is, because a universal tenet of the law is that people are deemed to know the law, hence if they break it they cannot use the excuse that the didn't know what the law was, because the law deems people to know what the law says. However, regarding the question of copyright infringement on a "substantial part", it is impossible for the person to know what the law says when they are doing the act for which they are being sued, as even the law does not know what the law says until after the trial and the judge says what the law says.
What makes this matter far worse is the fact that most copyright infringement lawsuits are on the question of, was a "substantial part" of the work copied; because most people who copy another's work don't simply republish the entire previous work verbatim.
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