Foundations of Copyright
A brief summary of rights in Canadian copyright law
Introduction
The Copyright Act is the legislative source of copyright law in Canada. As a federal statute it applies to every province and territory in the country. While “copyright” is the most predominant right defined by the Act; it is important to remember that the Copyright Act provides other types of rights, and that all of these rights are necessary to furthering the purpose of the Act. The Supreme Court of Canada (SCC) has described the purpose of the Copyright Act as, “a balance between promoting public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.”1 As the idea of balance suggests; these rights are divided between creators of protected works and users. The main three, broadly described are: Copyright, Moral Rights, and Fair Dealing.
Copyright
The economic right in the work
Copyright is defined as, "the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever."2 It is important to notice here that copyright does not apply to any insubstantial part of the work. Copyright does not apply to ideas, but rather comes into existence when an idea is expressed in a material form. Copyright originally belongs to the creator, but similar to real property rights; copyright in a work can be bought, sold or licensed through agreements. In this way permissions can be sought from the copyright holder to use a work.
Copyright terminology
Compliance with copyright:
If a whole work, or any substantial part of a work, is going to be reproduced; the copyright holder (i.e. author, publisher, estate, etc.) must be contacted and an agreement must be reached. Reproducing any insubstantial part of a work does not require an agreement.
Compliance with moral rights:
To make any modification of a work, or to use it in association with something, consent from the author must be given.
Copyright holder:
The author or creator is the original holder, but often the copyright may be held by a publisher or a trust.
Creative Commons:
There are six options for Creative Commons licenses that are available for materials that are not otherwise copyrighted (i.e., you signed an authors agreement for your work and it is not possible to archive the pre-print). By placing a Creative Commons license on your work it allows your scholarship to be more available.
Licensing:
A legal agreement between a rights holder and individual or entity requiring the use of a given material. Such contracts can be for a defined period of time or in perpetuity, a cost might be associated with the use, and there might be indemnities that the individual or entity may need to agree to follow as part of the contract.
Moral rights:
The author's right to the integrity of their work. This includes the right to be associated with the work pseudonymously or anonymously. The term of moral rights coincides with the copyright in the work.
Open access:
Refers to materials, both scholarly and non-academic, freely available and unrestricted through online access. Commonly, these journal articles have an associated cost for making them freely available.
Permissions:
Agreements between the user and creator, publisher or copyright holder.
Public domain:
Works that no longer have copyright, as it has been fifty-years since the author has passed away are released into the public domain. There is no longer the requirement to obtain permission to use it for course content.
Rights holder:
A person who or entity which has exclusive rights to a copyrighted material (e.g., performance, artefact, writing, etc.), and has the ability to then provide supplementary licenses for usage.
Use:
Typically the use of a work means reproducing it for personal gain.
A more comprehensive list of terminology can be found in the Copyright Act, Section 2, under Interpretation.
Moral rights — the right to the integrity of the work
The moral rights are defined as, “the right to the integrity of the work.”3 The SCC has stated that, “the integrity of the work is infringed only if the work is modified to the prejudice of the honour or reputation of the author."4 These rights can only belong to the creator and while they can be waived, they cannot be traded.
Compliance with moral rights: To make any modification of a work, or to use it in association with something, consent from the author must be given.
Fair dealing
Fair dealing is listed as an exception to copyright under the Act. This means that, in certain circumstances, a person can make copies of a work without infringing copyright. In its 2004 decision5 the SCC stated these exceptions were “more properly understood as users’ rights” which were essential to furthering the objectives of the Act. The SCC reaffirmed this understanding of fair dealing in two of its 2012 decisions.6
When does fair dealing apply? To access TRU's Fair Dealing Policy, go here . Supporting guidelines regarding TRU's Fair Dealing Policy may be found here .
The Copyright Act
The source of copyright law in Canada. Here is the complete Copyright Act. Below are a few important sections:
- 3. 1 Copyright in Works
- 6 Term of Copyright
- 14.1 Moral Rights
- 27 Infringement of Copyright
- 28 Infringement of Moral Rights
- 29 Fair Dealing
- 29.3 Motive of Gain
- 29.4 Educational Institutions
- (1) Reproduction for Instruction
- (2) Reproduction for examinations, etc.
- (3) If Work commercial available
- 30.2 Copies made by a library on behalf of someone for the purpose of s. 29
- 32 Reproduction in alternate format
1 Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 336 at para. 30
2 The Copyright Act, RSC 1985, c C-42, s. 3
3 Ibid s. 14.1(1)
4 Supra note 2 at para.17
5 CCH vs. LSUC (2004) SCC 13
6 SOCAN v. BELL (2012) SCC 36 at para 11 and Education v. Access Copyright (2012) SCC 37 at para 22
