The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic will discuss copyright law.
Copyright gives you exclusive rights to certain types of original artistic expression. For example, copyright protects music, sculptures, paintings, photographs, films, books, articles, plays, television shows, movies, radio programs, architectural works, drawings, software code, and many other kinds of work. Copyright also applies to recordings of music, artistic performances, and interviews. You have the right to stop someone else from reproducing your copyrighted work in any form without your permission.
Copyright does not protect general ideas that are contained in artistic expression. The general plot of a play or story, for example, is an idea that is not protected in the same way as the script of a play. Ideas are not protected by copyright, only your way of expressing them is.
Copyright is acquired automatically when the original work is created. It is created once it is completed and resides in the fixed form used for the type of work. If, for example, you composed and sang a song, but never recorded it or wrote down the music, your song is not automatically protected by copyright.
Ownership of copyright is complex. In some circumstances, you may not own the copyright even though you were the author of the work. For example, if you record a band’s performance without permission, you may be the author of an original recording, but you would need permission from the band in order to distribute your recording since it contains the band’s music and performance of that music.
Your rights as an author can also be limited by your employer. If you are hired for the purpose of creating copyright-protected material, then your employer likely owns the copyright for anything you produce during company time or using company resources. For example, if you work for a company and are asked to write a manual for a product, the company likely owns the copyright to the manual. In this scenario, you are assigning your rights in the work to your employer.
Notice to others that a work is protected by copyright assists you if you should ever need to enforce your rights. Notice is given by the use of © (the letter “C” in a circle). Although registration of the copyright is not required, a registered copyright can also help you if you are suing someone for copying your work.
To register a copyright, you must fill in a form where you state that the work is original, you state its title and other details, and you indicate the author(s) names and owner(s) names. This can be done online by going to www.cipo.ic.gc.ca and following the links to “Copyright”.
Generally, a copyright lasts for the life of the author plus 50 years. If a work is published after the author’s death, or by an unknown author, the work is protected for 50 years from publication. A photograph is protected from unauthorized reproduction for 50 years from the date the photograph was taken. If two or more people are authors of a copyrighted work, the work is copyrighted for 50 years after the death of the last surviving author. In the United Sates, the general term of copyright is the life of the author, plus 75 years. Once a copyright has expired, the work is said to be in the “public domain” and can be reproduced by the public.
Recent changes to the Canadian Copyright Act have modified the relationship between photographers and their clients or employers. Since 2012, photographers are the first owner of copyright in the images they produce. If you are purchasing photographs, or photography services, it is essential to transfer the copyright from the artist if you intend to reproduce the images provided. If you are a photographer, a client or employer must obtain your permission before distributing your work.
If you feel someone has infringed upon your work, you may sue them for copyright infringement. If you are successful in your suit, you may be awarded damages up to your lost profits or the infringer’s illegally gained profits.
An infringement of your copyright may include plagiarism. Plagiarism is the act of implying that someone else’s work or ideas are your own. Plagiarism may or may not constitute copyright infringement, since it may or may not involve copying of all or a substantial part of a work in which you own the copyright.
There is no infringement of your copyright if non-substantial portions of your work are copied. The test of substantiality is related to quality, not quantity. A critic reviewing your work may reproduce a portion of it without infringing as well, providing they credit the author. But persons not publishing a criticism or review of a first work do not escape infringement merely by “crediting” the author. To protect yourself from infringing on someone else’s copyright, get written permission from the copyright holder. You may have to pay a fee, or permission may be given without a fee for limited copying.
The biggest exception to copyright infringement is “fair dealing for research or private study”. To enjoy this exception, allowing you to, for example, download an essay or song, you must be able to prove you could not purchase the work (or obtain a consent to use the work) in a practical, reasonable manner (for example, the essay is out of print and not sold by the copyright holder online). In order for the exception to apply, you have to also prove the copying was for the purpose of “research” or “private study”.
Dial-A-Law is a Calgary Legal Guidance public service project funded by the Alberta Law Foundion.