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Copyright

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Purpose of copyright

Copyright law in the common law tradition was created to promote the public interest. It seeks to promote creativity and the dissemination of knowledge. The Statute of Anne, passed by the British parliament in 1710, was the first copyright Act and sought the "Encouragement of Learning" through granting rights of copyright. The U.S. constitution instituted copyright “To promote the Progress of Science and useful Arts.” Thus, copyright law seeks to give creators sufficient control over their works, and the opportunity to gain from their works, to give incentive to the creative process and to the wide dissemination of works. These broader objectives of copyright law operate in the public interest and supercede any strictly economic conception of copyright as "intellectual property." This has been clearly reflected in the numerous copyright rulings from the Canadian Supreme Court over the last sixteen years. 

Also in the public interest, the rights of creators in copyright is limited. Copyrighted works may sometimes be used without the need to ask permission or pay a royalty. One way the Copyright Act accomplishes this is to provide term limits on copyright. In Canada, in most cases, copyright expires 50 years after the death of the creator at which point their works enter the public domain. A second way this is accomplished is through fair dealing rights and exceptions for users of copyrighted works.

Who owns copyright

The author of a work is usually the copyright owner. A copyright owner may assign or licence rights to a work. In the case of published works, copyright is often assigned to a publisher who then retains the copyright. When seeking permission to use a copyrighted work, keep in mind that the originating author may not be the rights holder.

Copyrigt is automatic

In Canada, any original work or performance, regardless of its merit, is automatically protected by copyright once it is in a fixed form. You do not need to register a work in order for it to be protected, although you can still do so. Other means of protecting your work include the use of copyright notices and, for digital works, the application of technological protection measures (TPMs or digital locks) that restrict access or the ability to download or copy from a file.

A copyright owner who receives a request from someone wanting to copy, distribute or adapt their work may grant the request for free, for a fee, subject to certain conditions, or refuse the request altogether.  Co-owners or co-creators of a work will need consent from each owner or creator before granting a request.  If copyright to a work is owned by a publisher or other third party, refer the request to that copyright owner. 

Originality

In Canada, copyright protects only original work. A work must originate from its author, be more than a copy of another work and involve skill and judgment in its creation, not just a trivial or mechanical compilation of data. Effort, or "sweat of the brow" alone in the compilation of a database, for example, does not provide sufficient grounds for copyright. A phonebook cannot be copyrighted, as it is a mechanical compilation of data. 

Ideas, facts and news are not copyrightable

It is "fixation" that distinguishes between an expression and an idea. Copyright does not extend to ideas, facts or news. Copyright protects the expression of an idea, but not the idea itself. Copyright does not protect methods, plots, characters, titles, names, short phrases or slogans, although some of these may be protected through patents or trade-marks.

An insubstantial amount is not covered by copyright

The Copyright Act states that the creator of a work has the “sole right to produce or reproduce the work or any substantial part thereof.” This means that an insubstantial part of a work is not protected by copyright and users have the right to copy an insubstantial amount of copyright protected works.  However, the Act does not define what is meant by insubstantial.

In a 2015 decision the Copyright Board of Canada provided quantitative guidance that can be used as a general guideline. The Board considered about 2.5% of the whole work or about 1 page of a 40 page document an insubstantial amount.

However, when determining substatiality the courts have considered both qualitative and quantitative factors. In Warman v. Fournier (2012) the court considered five factors:

  1. the quality and quantity of the material taken;
  2. the extent to which the respondent’s use adversely affects the applicant’s activities and diminishes the value of the applicant’s copyright;
  3. whether the material taken is the proper subject-matter of a copyright;
  4. whether the respondent intentionally appropriated the applicant’s work to save time and effort; and
  5. whether the material taken is used in the same or a similar fashion as the applicant’s

Although the 2.5% guideline is useful, it should be noted that it is not the determinative factor when considering whether the substantiality threshold has been met.

Moral rights

The Copyright Act provides moral rights for creators. Moral rights protect the right of a creator to be identified as a work’s author and the right to remain anonymous or use a pseudonym. Moral rights protect the integrity of a work and the manner in which a work may be associated so as to prevent the work or the author from being affected prejudicially. While the copyright in a work may be licensed or assigned to another, moral rights can only be retained by the creator or waived completely. 

Isn’t it enough just to cite a work?

Citing acknowledges the ideas of others and is required whether or not a work is in copyright. Citing avoids plagiarism, but is not a substitute for acquiring copyright permissions when needed. 

This work is subject to a Creative Commons Attribution NonCommercial 4.0 International license. For exceptions, see the Library Copyright Statement.