Copyright
| Author | David Vaver |
| Profession | Professor of Law. Osgoode Hall Law School, York University |
| Pages | 21-112 |
CHAPTER
COPYRIGHT
A. INTRODUCTION
Copyright is protected solely under the Copyright Act} This statute was
enacted in 1921 as a substantial copy of the
1911
U.K. copyright law. It
came into force in 1924 and underwent major amendments in 1931,
1988,
and, more recently, in 1993 and 1994 as a result of the North
American Free Trade Agreement and the Agreement on Trade-Related
Aspects of Intellectual Property Rights. Its central aim is to grant rights of
exploitation to authors of original literary, dramatic, musical, and artis-
tic works.2 The works may be created through old or new technology:
an artist using a paintbrush computer program today should be as fully
protected as one with a real brush and real canvas was in the nineteenth
century. An electronic multimedia work or database should also be as
fully protected as the traditional encyclopedia or card-index. Quality and
legality are irrelevant: trash and the sublime — even works that are por-
nographic or that themselves infringe copyright (e.g., an unauthorized
R.S.C.
1985, c. C-42, [C Act]; [unless otherwise indicated, references are to the Act
as
amended].
C Act,
ibid.,
s. 5(1), s. 2, defines "every original literary, dramatic, musical and
artistic work." This tracks the latest (1971) version of the
Berne
Convention for the
[Berne].
The North American Free Trade Agreement, 17 December 1992 (Ottawa:
Supply & Service, 1993) [NAFTA], compelled Canada, then bound only by the
1928 version of
Benic,
to protect copyright to the 1971 level of Berne.
21
1
2
22 INTELLECTUAL PROPERTY LAW
translation) — all have been found equal under the copyright law.3 Pro-
tection is automatic and usually lasts for the author's life plus fifty years.
The original purpose of copyright may have been to encourage cul-
ture — by providing incentives to authors and artists to produce worthy
work, and to entrepreneurs to invest in the financing, production, and
distribution of such work. Whether copyright, as presently configured,
achieves those ends is an interesting question. Many works, as we shall
see,
have little to do with culture and are simply industrial products. Pro-
tection for these products, as well as for fine art, runs for the author's life
plus fifty years. The work may be produced by an employee, who never
sees the copyright because it belongs to the employer; yet protection lasts
as long, even though the original purpose of benefiting an author's sur-
viving family is no longer there. No rational employer, financier, or
entrepreneur needs protection that can run for well over a century.
By contrast, industrial designs for mass-produced items like auto-
mobiles or dishwashers are typically excluded from copyright protec-
tion. They, however, may be protected for ten years on registration
under the Industrial Design Act.4 Protection like this might seem more
apt for the many purely industrial items that presently fall automatically
under copyright. For many other items, such as business letters, out-
moded trademark designs and advertisements, and most computer pro-
grams, long-term protection seems equally unnecessary: Has not the
cost of producing now obsolete WordPerfect 4.0 been amortized many
times over? Needless to say, producers of such items would violently
disagree. Nobody wants to give up a benefit that one day may possibly
have some value, even though the item was originally produced without
any thought of such opportunism.
1) Contours of Protection
The key features of copyright protection are as follows:
• Only original work is protected. This stipulation does not mean new
work, but that the work must originate from the author, cannot be
copied, and must involve some minimal intellectual effort. The level
required can be judged from the fact that most private and commer-
cial correspondence, however banal and cryptic, qualifies.5
3
Aldrich
v.
One
Stop
Video
Ltd. (1987), 17
C.PR.
(3d) 27 (B.C.S.C); D. Vaver,
"Translation and Copyright: A Canadian Focus" (1994) 16
E.l.P.R.
159 at 161.
4 See section B(7),
"Industrial
Design," in this chapter.
5 See section C(l), "Originality," in this chapter.
Copyright 23
• Copyright law prevents copying only. Nobody infringes unless they
somehow copied a protected work. This requirement is what suppos-
edly makes the long term of copyright tolerable and makes copyrights
different from patents, industrial designs, or trade-marks, where the
right may be infringed despite a defendant's independent creation.
• Copyright protects expression only: not ideas, schemes, systems,
artistic style, or
"any
method or principle of manufacture or con-
struction."6 Anyone was (and is) free to paint funny-looking people
holding guitars: what they cannot do is imitate Picasso's expression
of these subjects.
2) Non-traditional Subject Matter: Bill C-32 of 1996
Copyright has traditionally been the preserve of authors and artists, but
performers, record producers, and broadcasters have internationally
been accorded rights akin to copyright (sometimes called droits voisins:
"neighbouring" or "allied" rights) by the Rome Convention
[Rome].
Theo-
retically, none of these persons is an author, none does anything "orig-
inal," none produces a "work." Performers interpret or execute works,
record producers record them, broadcasters transmit them, so none is
entitled to a traditional copyright.
Nonetheless, since 1924, Canada has protected sound recordings by
copyright for a flat fifty-year period. A bill to amend the Copyright Act,
Bill C-32, introduced into Parliament on 25 April 1996, would extend
copyright coverage to broadcasters and increase the coverage now available
to performers, both for a similar flat fifty years. Even though performers
are often like authors, and indeed, when spontaneously improvising,
can be authors, the protection is for the performance
itself,
not for any
originality that went into it. Thus one hundred identical performances,
whether recorded or not, of the same tune each have separate copy-
rights. Broadcasters do nothing original in transmitting or carrying a
signal: it is their investment in distribution that would be protected.
Most traditional copyright principles would nonetheless be extended
to these non-traditional subject matters. In applying them, however,
one should recall that performances, sound recordings, and broadcasts
differ in justification and practice as much from one another as they do
from traditional copyright works.
C
Act, above note 1, s. 64.1(l)(d).
6
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