1. Copyright 101
1.1 What is copyright?
Put most simply, copyright consists of a bundle of rights, which are set out in the Copyright Act. These rights are acquired when original works such as artistic, dramatic and literary works are created. They include, but are not limited to, the right to copy an original work and the right to prevent others from copying a work without permission.
1.2 Why do we have copyright?
Copyright encourages creativity by protecting the legal and economic interests of those who create original works. In return for this protection, authors are encouraged to share their works with society so that society as a whole may benefit from a vast repertoire of musical, literary, dramatic, and other artistic works.
1.3 Where can I access Canadian copyright laws?
You can access the Copyright Act on the Department of Justice website at: laws.justice.gc.ca/eng/acts/C-42
1.4 Who is in charge of copyright laws in Canada?
Copyright is within the federal government’s jurisdiction and is managed by Industry Canada. You can access Industry Canada’s website at: www.ic.gc.ca
1.5 Are copyright laws the same across Canada?
Yes. The Copyright Act is a federal statute, so copyright laws are the same in all the provinces and territories across the nation.
2. How To Acquire Copyright
2.1 How do I acquire copyright?
Copyright is automatically acquired from the moment of creation of a work, provided that the work meets these three criteria: 1) the work must be original;2) it must be fixed in a somewhat permanent material form; and 3) the author must meet the qualified person requirements set out in the Copyright Act. A qualified person includes Canadian citizens and persons ordinarily resident in Canada. “Original” means that: 1) the work can’t be a substantial copy of another copyright protected work; and 2) the work must have been created by exercising “skill and judgement”, meaning it can’t be the product of a purely mindless mechanical exercise. See also 5.1,(qualified persons), 2.2. (originality), 2.3 (fixation) and 3.1 (registration).
2.2. How original does the work have to be to acquire copyright?
The threshold test for determining whether there is an original work for copyright purposes is relatively low. The work has to be “non-trivial”, meaning it must meet a minimal level of creativity. For example, you can’t change two notes in a pre-existing song and claim it is a new and original work. However, many musical compositions follow a similar popular structure and rhythmic pattern and western music is bound by the limits of the 12 notes of the chromatic scale but the threshold can still be met- musical works needn’t be novel to acquire copyright protection.
2.3 I haven’t made an audio recording of my musical work. Have I acquired copyright to it?
Yes, you have. It is not required that you make an audio recording of a musical work to acquire copyright to it. However the fixation requirement must be met. An audio recording serves as evidence of existence of the song and does satisfy the fixation requirement. Song lyrics should be fixed in writing or recorded. The musical composition could be musically notated or embodied in an audio recording. Either of the foregoing would satisfy the fixation requirement regarding the musical composition.
2.4 Who can acquire a copyright?
As a general rule, copyright is first acquired by the author of a work. However, there are exceptions to this general rule. For example, if an author creates a work while executing the duties of his or her employment, the employer owns the copyright, unless there is an agreement to the contrary.
Once acquired, the author then has the ability to transfer the copyright, in whole or in part, to a third party, typically by an assignment. Copyright can then acquired by a third party under such assignment which is a contract.
Copyright can be acquired by individuals, partnerships or corporations under many contractual situations. For example, under music publishing agreements, under commission agreements for film and television music to name a few.
2.5 How is a copyright different from a patent?
Put simply, patents protect inventions and copyright protects the form of expression of a work. Patents are granted by the Canadian Patent Office and are only granted to new, useful, and non-obvious inventions. Copyright is granted to an original creative work regardless of whether it is new , novel, or will contribute or advance society. Patents are most typically associated with innovations in pharmaceuticals and engineering.
3. Registering Copyright
3.1 Do I need to register my work to acquire copyright?
There is no requirement that one register one’s copyright in order to acquire copyright. Copyright is automatically acquired from the moment of creation of an original work. That being said, many regard it prudent to register, copyright to their work with the Copyright Office as proof of ownership. You can register your copyright with the Copyright Office at: www.cipo.ic.gc.ca . See also 2.1 above.
3.2 How is the Canadian Song Vault different from registration with the Copyright Office?
The Canadian Copyright Office registers only your title and claim of ownership, which assists, but is not definitive in proving ownership of copyright. The Canadian Song Vault (formerly the Canadian Song Depository) maintains a recording of the song and the song’s date of creation and filing. This information is useful evidence in the event of a dispute regarding copyright ownership. Registering with the Song Vault is not the same as registering with the Copyright Office.Visit the Canadian Song Vault website for more information: http://songwriters.ca/songvault.aspx .
3.3 Is mailing myself a copy of my work the same as copyright registration?
No. Mailing a copy to yourself is not the same as copyright registration and is not a form of copyright registration., Nor is it a reliable form of evidence of copyright ownership because there are several ways with which registered mail can be tampered. For example, mailing yourself an unsealed envelope and entering the contents at a later date. There’s no harm or foul in mailing yourself your own work, but it is an unreliable form of evidence and will likely not be given serious consideration in the event of a legal dispute. See also 3.1 above.
4. Copyright Owner's Rights
4.1 What rights are acquired by the author of a work?
There are two main types of rights that are acquired: copyrights and moral rights.
Copyrights are in essence, the rights from which economic value is derived from a work. These rights include but are not limited to, the right to produce or reproduce the work in any material form. See also 1.1 above.
Moral rights are personal to and acquired by the author of a work and include the right to the integrity of the work. The integrity right includes the right to prevent distortion, mutilation, or other modification of a work, or the use of a work in association with a product, service, cause or institution to the prejudice of the honour or reputation of the author. Moral rights also include the paternity right,which is the right to be credited as the author of the work under the author’s legal name, pseudonym and includes the right to remain anonymous.
4.2 Someone produced a song that uses the same ideas as my song. Has my copyright been infringed?
Copyright does not protect ideas. Copyright protects the form of expression of a work. Neither does copyright law grant the copyright holder exclusivity over a subject-matter or an idea, opinion or a plot. For instance, if Shakespeare were alive today and wrote Romeo and Juliet, the prose would be subject to copyright, but the concept of star-crossed lovers would not be protected by copyright.
Having said that, copyright is not limited to exact verbatim copying. When too much of another’s work is copied, the line that divides ideas and expression may be crossed. There is no black and white answer as to where that line is drawn. Each situation must be dealt with on a case-by-case basis. What is key to remember is that another song may be similar to yours, but unless the author has had access to your work and has copied a substantial part of your work, there is no direct copyright infringement. Remember, copyright protects against unauthorized use of a work, it doesn’t provide a stranglehold over ideas.
4.3 I own the copyright to my song and someone recorded my song without my permission. Has my copyright been infringed?
In the absence of permission, typically in the form of a licence, yes. The Canadian Musical Reproduction Rights Agency (CMRRA) is the leading intermediary that acts between music copyright holders (aka music publishers) and those interested in obtaining permission to record a cover of your song. The permission required to record a song is called a mechanical licence. If you are a member, the CMRRA will license your songs on your behalf. See the CMRRA website for more information on song licensing: www.cmrra.ca. If you are concerned your copyright has been infringed, seek legal advice from a qualified source.
4.4 I own the copyright to my song and I heard my song in a movie, but I never granted the producers permission to use my song. Has my copyright been infringed?
In the absence of permission, yes. A production must apply and obtain permission in the form of a synchronization license for any such use. Permissions for use of songs in television and motion pictures may be also administered by the CMRRA or the copyright holder directly. See the CMRRA website www.cmrra.ca for more information:. If you are concerned your copyright has been infringed, seek legal advice from a qualified source.
4.5 I think someone “stole” my song. What should I do?
If you suspect that someone has infringed your copyright, seek skilled legal advice immediately to determine the best course of action.
4.6 How long do I have copyright in my composition?
In this case, the general rule applies, that is, copyright lasts for the duration of the author’s life plus 50 years after his or her death. After the death of the author, copyright devolves to the author’s estate, unless the author has bequeathed the copyright to someone else in his or her will. In the case of joint authorship, that is, where there is more than one writer of a composition, copyright subsists for the life of the last surviving author plus 50 years after his or her death.
4.7 How long do I have copyright in my performance or sound recording?
Copyright in a performer’s performance in a sound recording and in the sound recording itself, lasts for the remainder of the calendar year during which the performer’s performance sound recording respectively first occurred, plus 50 years thereafter .
4.8 I saw my CD in a second-hand store. Can they resell my work like that?
The copyright owner has the first right of distribution, that is, the authority to decide how and when to distribute the work, or whether to distribute it at all. Once the work has been put on the market, however, the author loses the ability to control whether or not the physical embodiment of the work is subsequently resold or transferred.
5. International Copyright Issues
5.1 I’m a Canadian citizen. Is my copyright limited to Canada or is it protected in other countries?
Your copyright is not limited to Canada. Canada is a signator to several international treaties relating to international copyright law therefore. Canadian copyright laws apply to all Canadian citizens and persons ordinarily resident in Canada and in Canada to all citizens and persons who are ordinarily resident of all member countries which are signator to the Berne Convention, the Universal Copyright Convention, and the World Trade Organization. In turn, Canadian citizens and persons ordinarily resident in Canada are also granted copyright protection in participating nations.
5.2 Someone infringed my copyright in another country. What law applies?
Copyright laws are territorial and differ from nation to nation. The applicable law of the country in which the infringement occurs will apply. For example, if someone has infringed your copyright in Canada , you must assert your rights in Canada under the Copyright Act in Canada. Correspondingly, if someone has infringed your copyright in the United States, United States copyright law applies. Canada’s Copyright law will not be enforced in a foreign nation.
5.3 I wrote a song while travelling between countries. What copyright laws apply to the song?
Where the song was created doesn’t establish its copyrights. Your song has different copyright protection in different nations. Copyright laws vary in each country and which copyright law applies depends on where you intend to exercise and enforce your rights. Also see 5.2 above.
6.1 Who gets royalties from the public performance of a song?
Public performance royalties are collected for and paid to songwriters and publishers by SOCAN, Canada’s only performing rights society. For more information about these royalties see SOCAN’s website at: http://www.socan.ca/jsp/en/pub/music_creators/index.jsp
6.2 Who sets the public performance royalty tariff rates?
Tariff rates are negotiated between SOCAN and various users of music and are set by the Copyright Board of Canada. .
6.3 Who has to pay royalties for the public performance of a song?
Public performances of a song are subject to SOCAN’s tariff of fees and are paid for by the user of the song, such as, a television station or radio broadcaster. What constitutes a “public performance” is very expansive and includes everything from radio airplay to background music at your dentist’s office. See SOCAN’s website for more information: http://www.socan.ca/jsp/en/pub/music_users/index.jsp
Further information on copyright laws in Canada can be accessed at the Canadian Intellectual Property Office’s website at: http://www.cipo.ic.gc.ca
These FAQs were prepared by Jennifer Saull (B.F.A. (Ryerson University) J.D. (University of Toronto)) and Paul Sanderson, Barrister and Solicitor and author ofMusicians and Law in Canada (Carswell).
The above does not constitute legal advice and in any given situation skilled legal advice should be sought.