Are Formalities Required to Obtain Copyright Protection?

AuthorLesley Ellen Harris
ProfessionLawyer, author, and educator
Pages35-56
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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