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Who Owns the Copyright?

Simply because one owns a copy of a work does not mean that one owns copyright in that work. The Copyright Act of Canada provides copyright protection to “authors” but does not define this term. The definition of the word “author” for the purposes of copyright law has evolved to essentially become synonymous with “creator.” A creator includes someone who writes a book, magazine or newspaper article, play, poem, or computer program. It also includes someone who takes a picture, composes music, writes song lyrics, draws a map, paints a painting, or sketches a sketch. Only the creator can subsequently sell, license, assign, or give away copyright and this must be done by written agreement. Hence, when one seeks to obtain permission to reproduce a portion of a work and needs permission of the copyright owner to do so, it must be first determined who owns the copyright because the creator of the work may have transferred all or some of the rights provided by copyright law to another party.

A. How long does copyright protection last?

The commonly cited rule is that copyright lasts for “life plus 50” in Canada. More precisely, copyright protection lasts for the life of the creator of the work, the remainder of the calendar year in which the creator dies, and an additional 50 years after that. For example, if a book is published on February 28, 2002, and the author dies on March 24, 2035, then copyright protection extends from February 28, 2002 to December 31, 2085. If the work is created by more than one person, copyright protection subsists for the life of the creator who dies last, the remainder of the calendar year in which that person dies, and 50 additional years. If the Crown owns the copyright in the work, copyright protection lasts until the work is published, plus another 50 years. If a work in which the Crown holds copyright is never published, copyright protection extends into perpetuity. The Crown includes The Queen and others who act in Her name, including the federal, provincial, and territorial governments, and any departments of the federal, provincial, and territorial governments.

Both economic rights and moral rights exist for the same period of time.

B. Copyright around the world …

Copyright laws of different countries differ. However, the relevant copyright law for activities that take place in Canada is the copyright law of Canada, regardless of where the copyright owner is from or lives. In Canada, Canadian copyright law always applies and in the United States, American copyright law always applies. Thus, when one wishes to make a particular use of copyrighted material, one must determine if the use complies with the copyright laws of Canada, even if the copyright owner is American or British.

This is particularly evident in the treatment of government documents from the United States. In the United States, documents prepared by the government are generally considered to be in the public domain, and thus have no copyright protection. In Canada, however, the Crown owns copyright in government documents. If one wishes to distribute copies of US government documents in Canada, these documents are protected by Canadian copyright law and permission to copy must be sought even though the same documents do not enjoy copyright protection in the United States.

The Berne Convention for the Protection of Literary and Artistic Works requires a signatory to protect the copyright of creators from other signing countries in its country according to its copyright law in exactly the same manner in which it protects the copyright of its nationals, and in turn, the copyright of nationals of that signatory will be protected in the same way in other signing countries according to respective national laws. Thus, Australia will accord Canadian authors the same copyright protection in Australia that it accords Australian authors, and similarly, Australian authors are protected in Canada by Canadian copyright law. As of 15 January 2002, 148 states were party to the Berne Convention. A complete list of signatories to the Berne Convention can be found on the website of the World Intellectual Property Organization [WIPO].