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It is an infringement in Canadian copyright law for any person to do, without the consent of the owner of the copyright, anything that only the copyright owner has a right to do as covered in the Copyright Act. [1]
The copyright owner's rights are listed in Section 3(1) of the Copyright Act.
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thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right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.
In order to assess whether this section of the Act has been infringed, the following three questions must be addressed:
Théberge v. Galerie d’Art du Petit Champlain Inc. [2002] 2 S.C.R. No. 336
A copyright holder’s economic rights will be infringed where an unauthorized copy is made of a work or a substantial part thereof. The majority in Theberge, aiming to strike a balance between the rights of copyright holders and parties with legally acquired proprietary interests, found multiplication to be of necessary condition of infringement and held that no actionable reproduction had taken place in this case. However, applying a broader reading of this decision, it may be that multiplication is a necessary condition but not necessarily a sufficient condition. It is unclear whether an infringement would have been found if a second copy of the poster had been made. Metaphorical reproduction or translation (ex. from book to film) may constitute reproduction, but in this case, a paper-to-canvas translation does not. The image contained on the original poster was physically removed from one substrate, transferred, and finally affixed to another substrate, leaving the original paper blank. The process began and ended with only one copy of the poster.
Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, [2004] S.C.J. No. 44
The issue in this case was the creation of temporary cache copies of website data by internet service providers (ISPs) as a means of speeding up the process that takes place when users access a website. While in this case, copies were made, the court found that these copies did not constitute an infringement or attract liability. Under s.2.4(1)(b) of the Act, it [3] reads as follows:
"(A) person whose only act in respect of the communication of a work or other subject matter to the public consists of providing the means of telecommunication necessary for another person to so communicate the work or other subject matter does not communicate that work or other subject matter to the public."
While this does not cover situations in which ISPs do more then merely communicate—i.e., where they make copies—the court holds that allowing such action to attract liability would produce an absurd result. The court cites the content neutrality of the caches and the demand for such technology as reasons for allowing such copies to be made without liability.
Satellite Radio (Statement of Royalties to be Collected by SOCAN, NRCC and CSI in Respect of Multi-Channel Subscription Satellite Radio Services, Copyright Board of Canada, [2009])
In this case, the Copyright Board held that while temporary buffer copies do qualify as copies, the duration and form of the copies was such that they did not constitute a substantial part of the works in question and therefore did not attract liability. In reaching this conclusion, the court adopted the proposition set out in Canadian Admiral [4] which held that for a work to be protected by the Act, it must be expressed in some material form capable of identification and having a more or less permanent endurance.
Ultimately, the Board found that while ephemeral copies satisfy the “material form” requirement, the buffer copies were totally unrecognizable as audio files and therefore did not meet the requirement that they be capable of identification. The Board’s decision on the material form element left several questions unanswered. The Board seems to suggest that the duration requirement set out in Canadian Admiral no longer applies as ephemeral copies do not, by their nature, have a more or less permanent endurance. Further, the Board does not require that copies be capable of being seen or retrieved, a requirement that would seem to follow the definition of EROS-Equipe, [5] where the Federal Court had defined material form based on its ordinary meaning, namely palpable, tangible and perceptible –a definition adopted by the Board.
The Copyright Act does not require that an entire work be copied in order to find that a copyright holder’s rights have been infringed. Copying a substantial part of the work will be sufficiently actionable. In determining whether a substantial part of a work has been copied, the court must exclude from consideration any part of the work not properly the subject matter of copyright under s.3 of the Act. [6] The analysis is largely fact-driven, and the courts will consider both qualitative and quantitative matters. Some of the matters that have been considered include:
(a) how central was the element taken to the first work?
(b) do the selected parts constitute an essential characteristic of the work?
(c) would people who see the copy recognize the source?
(d) was the part taken used in a manner that would create a substitute to the first work and thereby jeopardize its economic exploitation? [economic damages can be considered]
Hawkes & Sons (London) Limited v. Paramount Film Service, Limited [1934] 1 Ch. 593 (C.A.)
In this case, a 20-second segment of a 4-minute song, played in background of a news clip, was found to be substantial. One of the reasons for this finding was the recognizable nature of the song –there was no doubt that anyone who knew the song would be able to identify it in the clip. The court held that the producer of the newsreel should have obtained the permission of the copyright holder. The court struggled with the issue of whether requiring a news agency to acquire permission would hamper the production of news but ultimately found that the plaintiffs had copyright and should have been asked and/or compensated for the use of their work. This case gave raise to a legislative response seen in s.30(7) [7] which permits the incidental and not deliberate inclusion of a work in another work.
License Application by Pointe-à-Callière, Montreal Museum of Archeology and History for the Reproduction of Quotations, Copyright Board of Canada [2005] 33 C.P.R. (4th) 426
In this case, a museum requested a license to reproduce quotes whose authors could not be located. The Board denied the museum licenses on the basis that the quotes were not substantial parts of the greater work. Substantiality is to be determined qualitatively and quantitatively based on how much was copied, what specifically was reproduced and how central or essential the material was to the character first work. Further considerations include whether the public would be able to recognize the source of the copy and whether the copy would create a substitute to the first work, thereby jeopardizing its economic viability.
License Application by Breakthrough Films & Television, Copyright Board of Canada [2005] File 2004-UP/TO-33
In this case, the Copyright Board found that quotes reproduced in a History Channel documentary were substantial. The quotes themselves were relatively short and extracted from a book that was several hundred pages long, thus quantitatively unsubstantial. However, a qualitative analysis of the quotes led the Board to conclude that by using the quotes, the film would appropriate the author’s knowledge, time and talent, elements that reflected an exercise of the author’s skill and judgment. The sections of the book in question were original expressions of the facts and events and involved both creativity and literary merit. While this clearly establishes the work’s originality, there is some uncertainty as to whether it also establishes whether the quotes “substantial” nature in relation to the rest of this book.
Where there is direct evidence or an admission, there will be no question about copying but without these giveaways, it can be very difficult to prove copying. If courts look at two works and find that there is substantial similarity between them and there is proof the alleged copier had access to the ‘original’ work, copying will be presumed. This presumption is rebuttable.
Anti-circumvention refers to laws which prohibit the circumvention of technological barriers for using a digital good in certain ways which the rightsholders do not wish to allow. The requirement for anti-circumvention laws was globalized in 1996 with the creation of the World Intellectual Property Organization's Copyright Treaty.
The Copyright Act of Canada is the federal statute governing copyright law in Canada. It is jointly administered by the Department of Industry Canada and the Department of Canadian Heritage. The Copyright Act was first passed in 1921 and substantially amended in 1988 and 1997. Several attempts were made between 2005 and 2011 to amend the Act, but each of the bills failed to pass due to political opposition. In 2011, with a majority in the House of Commons, the Conservative Party introduced Bill C-11, titled the Copyright Modernization Act. Bill C-11 was passed and received Royal Assent on June 29, 2012.
Secondary liability, or indirect infringement, arises when a party materially contributes to, facilitates, induces, or is otherwise responsible for directly infringing acts carried out by another party. The US has statutorily codified secondary liability rules for trademarks and patents, but for matters relating to copyright, this has solely been a product of case law developments. In other words, courts, rather than Congress, have been the primary developers of theories and policies concerning secondary liability.
Robertson v Thomson Corp, [2006] 2 S.C.R. 363 , 2006 SCC 43 is a 2006 Supreme Court of Canada decision on the ownership of copyright in published text that are stored in databases. The ruling held that though a newspaper held the copyright in the collection and the arrangement of freelance articles and in its newspaper, it could not publish the articles within a database. Publication within the database would remove the articles from the context of the collective work and therefore their publication as such was not within the rights held by the newspaper.
The basic legal instrument governing copyright law in Pakistan is the Copyright Ordinance, 1962 as amended by the Copyright (Amendment) Ordinance, 2000.
In copyright law, a derivative work is an expressive creation that includes major copyrightable elements of a first, previously created original work. The derivative work becomes a second, separate work independent from the first. The transformation, modification or adaptation of the work must be substantial and bear its author's personality sufficiently to be original and thus protected by copyright. Translations, cinematic adaptations and musical arrangements are common types of derivative works.
Fair dealing is a limitation and exception to the exclusive rights granted by copyright law to the author of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations.
The copyright law of the United States grants monopoly protection for "original works of authorship". With the stated purpose to promote art and culture, copyright law assigns a set of exclusive rights to authors: to make and sell copies of their works, to create derivative works, and to perform or display their works publicly. These exclusive rights are subject to a time and generally expire 70 years after the author's death or 95 years after publication. In the United States, works published before January 1, 1928, are in the public domain.
Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F. Supp. 1361, is a U.S. district court case about whether the operator of a computer bulletin board service ("BBS") and Internet access provider that allows that BBS to reach the Internet should be liable for copyright infringement committed by a subscriber of the BBS. The plaintiff Religious Technology Center ("RTC") argued that defendant Netcom was directly, contributorily, and vicariously liable for copyright infringement. Netcom moved for summary judgment, disputing RTC's claims and raising a First Amendment argument and a fair use defense. The district court of the Northern District of California concluded that RTC's claims of direct and vicarious infringement failed, but genuine issues of fact precluded summary judgment on contributory liability and fair use.
Stevens v Kabushiki Kaisha Sony Computer Entertainment, was a decision of the High Court of Australia concerning the "anti-circumvention" provisions of the Copyright Act 1968. The appellant, Stevens, had sold and installed modchips that circumvented the Sony PlayStation's copy protection mechanism. Sony argued that Stevens had knowingly sold or distributed a "circumvention device" which was capable of circumventing a "technological protection measure", contrary to s 116A of the Copyright Act.
Fixation in Canadian copyright law is a threshold consideration that must be used in copyright infringement cases by courts to determine if copyright actually exists.
Authorship and ownership in copyright law in Canada is an important and complex topic which lies at the nexus between Canada's Copyright Act, an important body of case law, and a number of compelling policy motives. Analysis of authorship and ownership of copyrightable works in Canada can proceed by examination of the rules determining the initial allocation of copyrights, rules governing subsequent changes in ownership, and finally rules governing complex works such as compilations.
"Authorization" and "secondary infringement" are two instances of "indirect infringement" in Canadian copyright law. In cases of indirect infringement, individuals can be held liable for infringement even where they did not personally make copies of the copyrighted subject-matter. This expands the scope of liability. The Canadian courts have dealt with these concepts in a number of cases, several of which will be elaborated upon below.
Fair dealing is a statutory exception to copyright infringement, and is also referred to as a user's right. According to the Supreme Court of Canada, it is more than a simple defence; it is an integral part of the Copyright Act of Canada, providing balance between the rights of owners and users. To qualify under the fair dealing exception, the dealing must be for a purpose enumerated in sections 29, 29.1 or 29.2 of the Copyright Act of Canada, and the dealing must be considered fair as per the criteria established by the Supreme Court of Canada.
Playboy Enterprises, Inc. v. Starware Publishing Corp. 900 F.Supp. 433 was a case heard before the United States District Court for the Southern District of Florida in May 1995. The case revolved around the subject of copyright infringement and exclusive rights in copyrighted works. Plaintiff Playboy Enterprises filed a motion for partial summary judgment of liability of copyright infringement against defendant Starware Publishing Corporation. Specifically, Playboy Enterprises ("PEI") argued that Starware's distribution of 53 of Playboy's images, taken from an online bulletin board, and then sold on a CD-ROM, infringed upon PEI's copyrights. The case affirmed that it was copyright infringement, granting Playboy Enterprises the partial summary judgment. Most importantly, the case established that "The copyright owner need not prove knowledge or intent on the part of the defendant to establish liability for direct copyright infringement."
Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010), was a decision by the Supreme Court of the United States involving copyright law. The Court held that failure to register a copyright under Section 411 (a) of the United States Copyright Act does not limit a Federal Court's jurisdiction over claims of infringement regarding unregistered works.
Hubbard v Vosper, [1972] 2 Q.B. 84, is a leading English copyright law case on the defence of fair dealing. The Church of Scientology sued a former member, Cyril Vosper, for copyright infringement due to the publication of a book, The Mind Benders, criticizing Scientology. The Church of Scientology alleged that the books contained material copied from books and documents written by L. Ron Hubbard, as well as containing confidential information pertaining to Scientology courses. Vosper successfully defended the claim under the fair dealing doctrine, with the Court of Appeal deciding unanimously in his favour. The judgment given by Lord Denning clarified the scope and content of the fair dealing defence.
Entertainment Software Ass'n v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, is a landmark Supreme Court of Canada judgement that clarified the nature of and relationship between, the bundle of rights created for copyright owners under section 3(1) of the Copyright Act of Canada. In particular, the Supreme Court considered the relationship between the reproduction and communication rights under the Copyright Act, and applied the principle of technological neutrality to hold that downloading a work engaged only the reproduction right, and not the communication right.
Cinar Corp v Robinson is a leading case of the Supreme Court of Canada in the field of copyright law, which has impact in many key aspects of it, including:
A collective work in the copyright law of the United States is a work that contains the works of several authors assembled and published into a collective whole. The owner of the work has the property rights in the collective work, but the authors of the individual works may retain rights in their contributions. Electronic reproduction of the whole work is allowed, but electronic reproduction of the individual works on their own, outside the context of the work as a whole, may constitute an infringement of copyright.