What Is Protected by Copyright?

AuthorLesley Ellen Harris
ProfessionLawyer, author, and educator
Pages69-101
69
CHAPTER 6
What Is Protected by
Copyright?
Should not the Society of Indexers be known as Indexers, Society of, The?
—Keith Waterhouse (1929–2009), Bookends (1990)
The Meaning of
Works
and
Other
Subject-Matter
You may have already noticed that this book uses the term work when
referring to material or content protected by copyright. The term work
is the word used in the Canadian Copyright Act, the Berne Convention,
and the copyright legislation of many other countries to describe liter-
ary, artistic, musical, and dramatic creations protected by copyright. In
addition, the Canadian Copyright Act protects “other subject-matter”
which includes sound recordings, performances, and broadcasts (col-
lectively referred to as neighbouring rights). Works and other subject-
matter are both protected under the Canadian Copyright Act but enjoy
somewhat di erent protection and are distinguished in the Act. Some
refer to works as traditional copyright material and to other subject-
matter or neighbouring rights as nontraditional copyright mater ial. This
book often uses the words materials or content to cover both works and
other subject-matter.
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70 What Is Protected by Copyright?
Ideas
One important point to remember is that copyright protects the
expression of an idea and not the idea itself. Thus, the material that
is protected by copyright law is the expression of an idea, creation, or
thought. For example, a book on how to build a kayak is protected by
copyright, but anyone can use the ideas in the instructions to build a
kayak or write their own book on building kayaks (of course, without
copying the other book).
Facts
Similar to ideas, facts or factual information (for example, historical
details) are not subject to copyright protection. Note, however, that
other areas of the law may protect facts and restrict the use of infor-
mation; for example, if facts are obtained on a con dential basis. Here
again, facts must be distinguished from the expression of those facts. If
original, and expressed in some material form, there may be copyright
protection in the expression of facts. For example, there may be copy-
right protection in a book setting out the history of the  lm industr y
in Canada. However, there is no copyright protection in the facts con-
cerning the  lm industry in Canada that are set out in the book; there is
merely copyright protection of the expression of those facts.
Real-Life Events
Similar to facts and information, real-life events are not protected by
copyright. However, if you are producing a docudrama, for example,
and there is an article or book about the real-life event, obtaining per-
mission from the author of the article or book would ensure that the
author does not later make a claim of copyright infringement against
you. Also, the author may have valuable research materials you can
use. In addition, producers of projects based on real-life events often
obtain releases or rights to the stories from involved people to protect
themselves against other legal claims based on defamation, invasion of
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Works Protected by Copyright 71
privacy, and the right of publicity. Further, having exclusive rights to a
story from the people involved can give the producer an advantage over
others basing a project on the same people or facts.
Works Protected by Copyright
Copyright law was originally concerned with the protection of printed
material, but has, over the years, been expanded, either explicitly or by
interpretation, to extend to a large variety of works and what we now
commonly refer to as content. Most creations and content, whether an
intero ce memorandum, a sculpture,  lm, computer software, digital
image, or online periodical, qualify and fall within one of the main cat-
egories of works speci cally mentioned in the Copyright Act. These
works are protected by copyright provided they meet the necessary cri-
teria for copyright protection, such as originality and  xation, discussed
in Chapter 3. As one court case has put it, “there remains the rough
practical test that what is worth copying is prima facie worth protecting.”
1
A work (or content) is eligible for copyright protection notwith-
standing the mode or form of that work. The creation could be in draft
or  nal form, or it could be a sketch for a larger work such as a paint-
ing or the painting itself, or even a poem written on a napkin. The Act
protects a work prepared for commercial or noncommercial purposes.
It protects published and unpublished creations, and creations produced
by amateurs, children, or professionals. It protects print and analogue
works as well as digital content. It protects works in any language, even
nonhuman languages. It protects humorous, common, or crude works.
It may even protect indecent, obscene, or immoral works though the
rewards upon suing for infringement of copyright in such works may
be somewhat limited.
General Rule
The Copyright Act sets out speci c categories of protected works under
which the wide variety of creations fall. The Copyright Act states that
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