What is Copyright?

What is Copyright

Copyright is a legal right granted by the Canadian Copyright Act which gives the copyright owner the exclusive right to do certain things with a copyright protected work, such as making copies of the work, or giving permission to others to make copies.  The rights granted to a copyright holder by Section 3 of the Copyright Act are as follows:

3. (1) For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right
(a) to produce, reproduce, perform or publish any translation of the work,
(b) in the case of a dramatic work, to convert it into a novel or other non-dramatic work,
(c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise,
(d) in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed,
(e) in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work,
(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,
(g) to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan,
(h) in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program, and
(i) in the case of a musical work, to rent out a sound recording in which the work is embodied,

and to authorize any such acts.

The rights granted are listed in Section 3 of the Copyright Act and are limited to those listed in Section 3.  Canadian law does not grant copy rights outside of the Copyright Act.  As such, there is no such thing as “common law” copyrights.

Section 3 of the Copyright Act lists a number of important rights.   It grants the owner “the sole right” to do the things listed in the Copyright Act.  This means that the Copyright owner(s) has a monopoly on these rights and that they are exclusive to the copyright owner.  (These rights are subject to the fair dealing exceptions in Section 29 of the Copyright Act.)  It is this wording that essentially protects a copyright owner from unauthorized exploitation of a work.

The right to produce or reproduce the work is for the whole work “or any substantial part thereof”.  This means that the exclusive right is not limited to the whole work. Rather, the copying of a “substantial” portion of the work is also protected.  What is a “substantial” portion of the work will depend on each case.  A single sentence from a book may not be a substantial part but a whole paragraph is likely a substantial part.

The courts tend to look at the quality of what is copied rather than the quantity.  An important element of the work will be considered substantial, while an insignificant element will not be substantial.  Only substantial copying is protected. For example, in the case of music sampling, a 15 second sample of an insignificant rhythm would not be considered substantial.  While a 5 second clip from a key part of a song, such as the chorus, will likely be considered substantial.

Copying to other mediums is also protected.  The Copyright Act states “in any material form whatever”.  Thus, transforming a painting to a photograph, or building a 3D model from a drawing, would be considered a reproduction protected by the Copyright Act.

One of the most important rights is the right to “authorize any such acts”.  The right to authorize means that a copyright owner may give permission to others to make copies.  More importantly, the right to authorize protects a copyright holder from people who don’t make the actual copies but cause others to make copies.

Intellectual Property Law: A Primer

Author’s Rights: What Are Moral Rights?

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