What Is Protected by Copyright?

• Author: Lesley Ellen Harris
• Profession: Lawyer, author, and educator
• Pages: 69-101

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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