Copyright Basics

Copyright Law: 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.

Insubstantial Part:

In a 2006 decision the SCC, citing the Federal Court of Appeal (FCA) in Édutile, stated that in determining “whether a ‘substantial part’ of a protected work has been reproduced, it is not the quantity which was reproduced that matters as much as the quality and nature of what was reproduced.”

Permissions:

Agreements between the user and creator, publisher or copyright holder.

Copyright Holder:

The author or creator is the original holder, but often the copyright may be held by a publisher or a trust.

Use:

Typically the use of a work means reproducing it for personal gain.

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.

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

The right to copy without needing permission

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 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

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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

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