What you should know about copyright

What is copyright?

Copyright is the exclusive legal right to produce, reproduce, publish or perform an original literary, artistic, dramatic or musical work. While there is no international copyright registration system, there are international treaties, such as the Berne Convention and the World Intellectual Property Organization Copyright Treaty, that extend copyright protection to foreign jurisdictions without having to register your copyright. Registering your work with the Canadian Intellectual Property Office (CIPO) is voluntary.

Did you know that all original literary, artistic, dramatic and musical works are protected by copyright laws, provided the conditions set out in the Copyright Act have been met, the moment the work is created and fixed in a material form? The copyright protection exists in Canada during your lifetime and for 70 years following your death. After that, the work becomes part of the public domain, accessible for anyone to use. This is true for most works, but there are exceptions for works like Crown copyright, works with joint authorships and works with unknown authors.

What is the difference between authorship and ownership?

Authorship refers to the original creators of a work, such as writers, artists or composers.

Usually, the creators of the work are the owners of the copyright. However, if that work is made in the course of employment, it is typically the employer, or any other legal entity such as a film studio or a publishing house, that owns the copyright, either per the Canadian Copyright Act provisions or through a transfer of ownership, such as an assignment. When you own the copyright, you control how it is used in order to protect its value. Others who want to copy the work without infringing on your rights can request in writing to license or buy the work.

What are moral rights?

In Canada, copyright laws give authors 2 types of rights: economic rights and moral rights. Moral rights focus on a creator's inherent rights, which includes the right to stay anonymous or use a pseudonym, the right to protect the work from distortion and the right to be credited for the work. Even if an author decides to assign their copyright ownership, the author continues to hold the moral rights to the work, unless they formally waive those rights.

What are the benefits of copyright registration?

By registering your copyright, you receive a certificate issued by CIPO. The registration can become valuable evidence to support that copyright exists and that the registrant is the owner of the work. A registration can be useful in a cease and desist letter, or if you have to enforce your copyright in a lawsuit against an alleged infringer, especially if the infringing party pleads they were unaware of any copyrights in the infringed work due to the lack of registration.

Copyright law in Canada and the United States

Did you know?

In 2022, CIPO registered 9,536 copyright claims, which is only a fraction of the copyrights registered with the U.S. Copyright Office, which registered 486,589 claims (PDF Version, 36 page, 11.3 MB) . This can be explained by the difference in laws: even if a copyright is automatic, a registered claim may be required to process an infringement case in a United States court or the Copyright Claims Board. In fact, many Canadians register their copyright in the United States due to local requirements in the United States.

How are copyright laws made and managed in Canada?

• Canadian intellectual property (IP) laws are federal. To become law, legislation must be approved by Parliament as per the legislative process.
• The Copyright Act is the responsibility of the Minister of Innovation, Science and Industry. It also has the support of the Minister of Canadian Heritage about the cultural aspects of copyright. Both departments support the development and implementation of the copyright framework.
• Global Affairs Canada administers trade aspects of the IP rights. This is often done through international negotiations.
• CIPO administers and processes the registration of copyrights.

Copyright, artificial intelligence and data

Recent advancements in artificial intelligence (AI) and data technologies will have an impact on how copyright is governed in Canada, spurring many questions about subjects like generative AI and copyright. One question that arises is, can AI generated content be copyrighted?

The Government of Canada continues to amend the Copyright Act for the benefit of all Canadians. The Consultation on Copyright in the Age of Generative Artificial Intelligence focused on the impacts of recent developments in AI on the creative industries and the economic impacts that these technologies could have on Canadians. The findings will help determine whether change is required to further reinforce copyright policy for an evolving Canadian economy. Stakeholder feedback will also inform the government's policy development.

The U.S. Copyright Office published a guide on AI generated content (PDF Version, 9 page, 188 kB) , which states that for a work to be copyrightable, it requires human authorship. When AI receives solely a prompt from a human and produces complex written, visual or musical works in response, the traditional elements of authorship are determined and executed by the technology; there is therefore not enough human authorship involved, and it cannot be copyrighted. If the user transforms the AI-generated material in a substantively creative way, then it becomes eligible for copyright.

To learn more about these copyright issues, you can listen to episode 15 of Canadian IP Voices.

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