Copyright

• Author: David Vaver
• Pages: 55-269

55

CHAPTER 2

COP Y R IGHT

Copyright is protected solely under the Copyright Act.1 The Act also

protects moral rights and the rights of performers, maker s of sound re-

cordings, and broadcasters. These rights are now discussed, with pass -

ing reference to industrial design, integrated circuit topography, and

common law protection.

A. INTRODUCTION

Copyright law was introduced immediately after Confederation,2 but

the backbone of the current law is t he Copyright Act enacted i n 1921

as a substantial copy of the 1911 U.K. copyright law3 to comply w ith

the Berne Convention for the Protection of Literary and Artistic Works as

revised in 1908.4

1 R.S.C. 1985, c. C-42 [C Act] [unless otherwi se indicated, references ar e to the

Act as amended]. The Act “derives from mult iple sources and draws on both

common law trad ition and continental civi l law concepts”: Théberge v. Galerie

d’Art du Petit Champlain Inc., [2002] 2 S.C.R. 336 at [116] [Théberge]; compare

Théberge, ibid. at [62]ff.; W. Hayhurst, “Intellect ual Property Laws of Ca nada:

The British Tradition , the American Inf‌luence and t he French Factor” (1996) 10

I.P.J. 265 at 276ff.; Beauchemin v. Cadieu x (1900), 2 Comm. L.R. 337 at 355 (Que.

Q.B.), aff’d (sub nom. Cadieux v. Beauchemin) (1901), 31 S.C.R. 370 [Cadieux].

2 Copyright Act, S.C. 1868, c. 54 [1868 Act].

3 Copyright Act 1911, 1 & 2 Geo. 5, c. 46 (U.K.) [U.K. Act 1911]

4 9 September 1886, 828 U.N.T.S. 221 [Berne], online: www.wipo.int/tre aties/en.

INTELLECTUA L PROPERTY LAW56

The 1921 Act came into force in 1924 and remains the basis of t he

current Act. The 1921 Act under went its f‌irst major amendments i n

1931 part ly to comply w ith the 1928 revision of t he Berne Convention.

Further major amendment s ca me a half-century l ater: from 1988 on-

wards, mainly to implement trade and copyright t reaties that Ca nada

had entered, namely:

the • North American Free Trade Agreement of 1992 (NAFTA); 5

the • Agreement on Trade-Related Aspects of Intellectual Property Rights

of 1994 (TRIPs);6

the latest version of the • Berne Convention (19 71) ;7 and

the • Rome International Convention for the Protection of Performers,

Producers of Phonograms and Broadcasting Organisations of 1961

(Rome Convention).8

The WIPO Copyright Treaty (WCT) and WIPO Performances and

Phonograms Treaty (WPPT), both concluded in 1996 under the auspices

of the World Intellectual Property Organization (W IPO), are the latest

international conventions that Canada plans to implement.9 A law to

achieve that, the Copyright Modernization Act (Bill C-32), introduced

after previous bills in 2005 and 2008 died on the order paper, received

its f‌irst reading on 2 June 2010.10 References to the changes the Bill

proposes are included throughout the text, although Bill C-32 also died

with the fall of the Harper government in Ma rch 2011. The Bill never-

theless indicates t he direction of current government policy,

Why we have copyright was discussed in chapter 1.11 A main ai m is

to encourage and reward authors of original litera ry, dramatic, musical,

and artistic works by granting t hem rights to prevent exploitation with-

For changes intr oduced by Berne in 1908, see S. Rick etson & J. Ginsburg, Inter-

national Copyr ight and Neighbouring Rights: The Berne Conventi on and Beyond,

2d ed. (Oxford: Oxford Univer sity Press, 2006), vol. 1 at [3.08]ff. [Ricketson,

Internati onal Copyright].

5 North American Free Trade Agreement, 17 Decemb er 1992 (Ottawa: Supply &

Service, 1993) [NAFTA].

6 Agreement on Trade-Related Asp ects of Intellectual Property Rights, Includ ing Trade

in Counterfeit Good s, (1994) 25 IIC 209, online: ww w.wto.org/english/doc s_e/

legal_e /legal_e.htm#TRI Ps [TRIPs].

7 Berne, above note 4.

8 See online: w ww.wipo.int/t reaties/en under “Rome Convention.” The implementing

legislation wa s An Act to Amend the Copyright Act, S.C. 1997, c. 24 [1997 Act].

9 The WCT and WPPT came into force in 2 002. For their texts, see onli ne: www.

wipo.int/t reaties/en/; M. Ficsor, The Law of Copyr ight and the Internet (Oxford:

Oxford Universit y Press, 2002), with commentary [Ficsor].

10 3d Sess., 4 0th Parl., 2010 [Bill C-32], proposing to amend the C Act, above note 1.

11 See se ction A, “Introduction,” in chapter 1.

Copyrig ht 57

out the author’s — or, more precisely, the copyright owner’s — consent.12

Another aim is to give authors “moral rights”: the right to have their

work properly credited and not changed in ways that prejudice their

honour or reputation.13 Whether the author works in old or new tech-

nology does not matter: an artist using a paintbrush computer program

today is as fully protected as one w ith a real brush and rea l canvas wa s

in t he nine teenth centur y. An ele ctronic multim edia w ork or dat abas e is

as fully protected as the tr aditional encyclopedia or card-index.

Copyright law is therefore about the regulation of expression.

Historically, it focused on t he expression of authors to the neglect of

everyone else — unsurprisingly since it was the copyr ight industries

that, claiming to represent the i nterests of authors, traditionally beat

a path to Parliament’s door and had the ear of the relevant ministers.

Times have changed as the public has become more concerned with

copyright’s intrusions, and cour ts have recognized, partly under the

inf‌luence of the Charter of Rights and Freedoms, that those who use

copyright have equal rights that deserve consideration a nd respect.14

Copyright owners a nd authors may be protected only as far as they do

not unreasonably restrict the public’s right of free expression.15

The original purpose of copyright may have been to encourage cul-

ture — by providing incentives to authors and artists to produce worthy

work. That purpose may still appear in preambles to legislation,16 but it

dissipates in practice. Copyright is geared more to get media entrepre-

neurs to invest in production, di stribution, and f‌ina nce, and to protect

their markets. It provides them with mechanisms that support prof‌it-

maximi zing practices which, in ot her contexts, might be thought anti-

12 Canadian Admiral Cor p. v. Rediffusion In c., [1954] Ex. C.R. 382 [Canadian Admi-

ral]; Pacif‌ic Film Laboratories Ltd . v. Federal Commissioner of Tax ation (1970), 121

C.L.R. 154 at 168 (Austl. H.C.); Ashdown v. Telegraph Group Ltd., [2001] EWCA

Civ 1142 at [30].

13 See section I, “Mora l Rights,” in this chapter.

14 CCH Canadian Lt d v. Law Society of Upp er Canada, [2004] 1 S.C.R. 339, 2004

SCC 13 at [48], rev’g 2002 FCA 187 [CCH].

15 See generall y, N. Netanel, Copyright’s Paradox (Oxford: Oxford Un iversity Press,

2008); C. Craig, “Putti ng the Community in Commun ication: Dissolving th e

Conf‌lict betwee n Freedom of Expression and Copy right Law” (2006) 56 U.T.L.J.

75; compare Drolet v. Stiftung Gralsbotschaft, 20 09 FC 17 at [187] [Drolet], im-

plausibly clai ming that copyright a lready fully ref‌lects s uch values.

16 E.g., Bill C-32, above note 10, assert ing in its f‌irst preamble t hat “the Copyright

Act is an import ant marketplace framework la w and cultural policy in strument

that . . . support s creativity and innov ation and affects many sect ors of the

knowledge economy.”