Authored Works

AuthorCameron Hutchison
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Authored Works
In its broadest sense, the term “copyright” refers to two categories of cre-
ation, in addition to the bundle of rights attaching to each, as provided
for under the Copyright Act. e two categories are () original literary,
dramatic, musical, or artistic works of authorship, or “authored works,”
and () “other subject matter” as in sound recordings, performers’ per-
formances, and broadcasts. Each is given a particular bundle of rights
under the Act. In this chapter, authored works, and the rights attach-
ing thereto, will be discussed. “Other subject matter,” or neighbouring
rights, as they are sometimes called, is addressed in Chapter .
Section B of this chapter discusses the necessary conditions for ob-
taining a copyright in a work. Except for the Act’s treatment of com-
puter programs, there is much that is functionally equivalent between
pre- digital and digital technologies vis-à-vis these requirements, thus
making the accommodation of the law within long-standing legal doc-
trine relatively easy. Still, the digital context may, in certain circumstances,
create complications for existing doctrine, for example, authorship using
computer programs. e same may be said of moral rights, discussed in
Section D: the doctrine, in most cases, is easily accommodated though it is
possible to imagine unique scenarios for which there are no clear answers.
Section C discusses the important rights that are given under the
Act to authored works: reproduction, telecommunication, distribution,
  
and authorization. Digitization poses some interesting challenges for the
interpretation of these rights. For example, should temporary non- per-
ceptible copies, made in the process of digital production or transmis-
sion of works, be captured under the reproduction right? Is it possible
that courts will, in some circumstances, deem the transfer of a digital
work, ostensibly under a licensing arrangement, as the sale of the work,
thus exhausting a copyright holder’s control over the work?
ere are f‌ive requirements to be met for copyright to subsist in a work
of authorship. First, the work must be a literary, dramatic, musical, or
artistic work as def‌ined under the Act. Second, the work must be f‌ixed
in a tangible form. ird, the work must contain expression. Fourth,
that expression must be original. Fifth, the originality of the work must
be attributable to a person. It should also be borne in mind that works
of foreign origin may be protected by Canadian copyright under certain
circumstances, as well.
1) Literary, Dramatic, Musical, or Artistic Work
For a creation to be protected under the Copyright Act, it must f‌it within
one of the four general categories of works def‌ined in section . e Act
def‌ines each of the four categories of works literary, dramatic, musical,
and artistic broadly and non-exhaustively. us, for example, artistic
work “includes paintings, drawings, maps, charts, plans, photographs,
engravings, sculptures, works of artistic craftsmanship, architectural
works, and compilations of artistic works.” Similarly, illustrative and
broadly conceived def‌initions are oered for dramatic work (“includes . . .
any piece of recitation”) and literary work (“includes tables and computer
programs”). ese def‌initions suggest that copyright applies to informa-
tional and knowledge creations as much as it does to literary, dramatic,
musical, or artistic works as understood in the conventional sense.
In many instances, copyright doctrine regarding works has been eas-
ily adapted to the digital context. For example, the rule that copyright
1 See s 5; see also Chapter 8.
2 In addition to def‌ining each of these categorizations, the Act, in s 2, def‌ines “every
original literary, dramatic, musical and artistic work.”
 :  
does not subsist in a game or sport as a dramatic work, for reasons of
performance unpredictability, has equal force for video games. Sim-
ilarly, a website or domain name would not be eligible for copyright
protection unless, as with any title, it is both “original and distinctive.
Two issues deserve special mention. First, the digital format has made
the creation of informational and multimedia content easy and ubiqui-
tous, and thus the treatment of compilations as works will be discussed.
Second, the inclusion of computer programs as literary works under
the Act has presented particular challenges for copyright.
A “compilation” is def‌ined as “(a) a work resulting from the selec-
tion or arrangement of literary, dramatic, musical or artistic works or
parts thereof, or (b) a work resulting from the selection or arrange-
ment of data.” While Canadian copyright does not protect databases
per se, compilations of data will enjoy copyright protection if the au-
thor shows skill and judgment (authorial originality) in her selection
or arrangement in assembling and presenting the information. Auto-
mated or mechanical compilations of data are thus excluded. As well,
protection will extend only to the originality expressed in the selection
and arrangement of the compilation and not to the underlying data (or
works) on their own. e originality standard for collective works, such
as newspapers, is the same as for compilations under the Act.
3 FWS Joint Sports Claimants v Canada (Copyright Board) (1991), 36 CPR (3d) 483 (FCA).
4 See, for example, Nova Productions Ltd v Mazooma Games Ltd and Others, [2006]
EWHC 24 at para 116 (Ch) [Mazooma Games]:
Although [the video game in question] has a set of rules, the particular se-
quence of images displayed on the screen will depend in very large part on the
manner in which it is played. The sequence of images will not be the same from
one game to another, even if the game is played by the same individual. There is
simply no sucient unity within the game for it to be capable of performance.
The graphics of the game, however, were protected as an artistic work. It is import-
ant to note that the author was the designer of the game, not the person playing
the game: see para 106.
5 See def‌inition of “work” in s 2 of the Act. The threshold of originality and distinc-
tiveness is not insignif‌icant: see Francis, Day & Hunter Ltd v 20th Century Fox, [1940]
AC 112, where the title The Man Who Broke the Bank at Monte Carlo failed to garner
copyright protection.
6 See Robertson v Thomson Corp, 2006 SCC 43 at para 37 [Robertson SCC].
7 Under the Act,collective work means (a) an encyclopedia, dictionary, year book or
similar work, (b) a newspaper, review, magazine or similar periodical, and (c) any
work written in distinct parts by dierent authors, or in which works or parts of
works of dierent authors are incorporated.” Robertson SCC, ibid, adopted a selection

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