Are Formalities Required to Obtain Copyright Protection?

• Author: Lesley Ellen Harris
• Profession: Lawyer, author, and educator
• Pages: 35-56

35

CHAPTER 4

Are Formalities

Required to Obtain

Copyright Protection?

Before anything else, preparation is the key to success.

—Alexander Graham Bell

Automatic Protection

Copyright protection is automatic in Canada. Under the Canadian

Copyright Act, there are no formalities requisite to obtaining copyright

protection. The protection exists upon the creation of a work or sound

recording, or when a performance or broadcast signal occurs. There is

no requirement, for example, to register a work or other subject-matter,

mark it with the copyright symbol, or deposit it with a deposit registry

for copyright purposes. Also, adding phrases like “All Rights Reserved”

does not entitle you to any further protection than you would have had

without the inclusion of such a phrase. You have copyright protection in

your work or sound recording upon the creation of it, or when a per-

formance or broadcast signal occurs, without doing any of these things,

once the criteria for protection (discussed in Chapter 3) have been met.

Although copyright protection in Canada is not dependent upon

any formalities, registering, marking, and depositing a work or other

subject-matter may help you enforce your rights. Because such “for-

malities” are optional under Canadian law, you must decide whether

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36 Are Formalities Required?

you want to register, mark, or deposit your creation, and if so, the best

method to use. Options include the Canadian government voluntary

registration system, the Amer ican government registration and deposit

mechanisms—which is open to Canadians—and nongovernmen-

tal organizations where you can register and deposit a work or other

subject-matter. This chapter discusses advantages and procedures for

voluntarily marking, registering, and depositing materials protected by

copyright.

Marking Your Creations

The Copyright Symbol

The copyright symbol, ©, is used universally to identify a copyright-

protected work and to indicate its copyright owner. This universally

recognized symbol appears in one of the international copyright con-

ventions, the Universal Copyright Convention. Note that the symbol

and requirement of marking a work do not appear in the leading copy-

right treaty, the Berne Treaty; in fact, automatic protection of a work

is one of the underlying premises of the Berne Treaty. Some people

believe that if a work does not bear a copyright symbol, especially a

work such as an article or image found online, then that work is not

protected by copyright law—that is not true!

Using the © symbol is not mandatory under Canadian copyright law

nor is any other marking of a creation in order for it to be protected

under Canadian copyright law. However, there are advantages to mark-

ing a work and using the © symbol.

First, the copyright symbol is a reminder to the world at large that

copyright exists in a work. As such, it provides evidence in a court

action that the alleged violator should have known that copyright

existed in the work. Second, it may help people who want to use

the work to locate the copyright owner and obtain permission to

use it. Third, marking is bene cial if a court case is pursued in the

United States since the American Copyright Act precludes an alleged

violator from submitting that he or she did not know that copyright

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