Basic of Copyright

Most website owners don’t know the Copyright acts in Canada & United states. Many of them get an issue with the providers due to misunderstandings or are too lazy to read the long contracts or worksheets; any project owner and partner must read and understand their rights to avoid conflicts.

On this page, we collected answers to common questions about Copyright, answered by a law. If you have any further questions or would like our help with copyright understanding, contact [email protected]. Please read before you start any project with XDEYE.

Please read the Intellectual property rights in software in Canada.

Copyright is the exclusive legal right to produce, reproduce, publish or perform an original literary, artistic, dramatic or musical work.

The purpose of copyright is to protect owners of creative works such as music, poetry, literature and art while inspiring creativity and continuous production of such works regardless of their commercial value.

Copyright provides protection for creative and artistic works such as movies, music, literature, or art. Patents, in contrast, protect innovations and improvements to past innovations, while trademarks protect brand names and symbols in commerce.

Not necessarily. To secure ownership, you will want a contract with the creator of the work that includes an assignment of ownership in the work. With XDEYE, that can be done by the below:
a- Personal Creator License (1 Seat) available for $25,000 for web applications.
b- Commercial Creator License (Unlimited Seat) available for $50,000 for web applications.

Please read the Intellectual property rights in software in Canada

No, purchasing a product does not give you ownership of copyright, but rather a license to use the work. This is a common myth that can lead you astray and, in some cases, be a very costly mistake. Take the cryptocurrency collective, Spice DAO, for example. After acquiring a rare art book for approximately $3 million USD, the collective found out they had not acquired the copyright to and in the work.

Copyright applies to all original literary, dramatic, musical and artistic works provided the conditions set out in the Copyright Act have been met (that is, the work is original and fixed to a material form). This covers a wide range of creations, including books, motion picture films (i.e., cinematographic works), plays, paintings, drawings and musical compositions.

There are three kinds of rights set out in the Copyright Act: economic rights, moral rights, and rights in other subject matter (called neighbouring rights).

Economic rights give a copyright owner the sole right to make reproductions of the work and/or to authorize someone else to do so.

Moral rights protect the integrity of a work and the identification of its creator. Moral rights can be divided into two categories: rights of attribution and association and rights of integrity. Attribution rights refer to the author’s ability to publicly name themselves as the author of the work. The right of association is the ability to choose in what context and in association with which works or causes the creative work is shown. If, for example, an author’s work is used to support a cause that directly threatens the author’s good name or reputation, the author may be able to claim moral rights infringement and seek a remedy. The rights of integrity refer to the author’s ability to preserve the intended meaning of the work and protect it from destruction or defamation. See our dedicated resource to learn more about moral rights.

Neighbouring rights protect the rights of performers (including their moral rights), broadcasters, and makers of sound recordings.

No. In Canada, copyright protection exists automatically as soon as a work is created and fixed in a material form, provided that the conditions of the Copyright Act have been met.

Registering your copyright with the Canadian Intellectual Property Office (CIPO) entitles you to receipt of a registration certificate that constitutes official proof of ownership. This creates a rebuttable presumption that copyright exists in the copyrighted work and that the copyright registrant is the owner of said work. The presence of such a rebuttable presumption can be useful in litigation concerning copyrighted works.

An application for copyright registration must include the title of the work, the category of copyright-eligible works to which it belongs (that is, is it a literary, musical, artistic, or dramatic work), the date and place of first publication of the work (if applicable), the name and complete postal address of the copyright owner, the name of the author of the work, and a declaration that the applicant for copyright is either the author of the work, the copyright owner, an assignee of the copyright, or a person who has been granted an interest in the copyright by licence (in other words, a declaration that the applicant is eligible to apply for registration).

A work may be categorized as a literary, musical, artistic, or dramatic work. Subsection 2.2(1) of the Copyright Act considers that a work is “published” when copies of the work are available to the public, when an architectural work is constructed, or when an artistic work is incorporated into an architectural work. Performing a literary, dramatic, artistic or musical work in public, or exhibiting an artistic work in public, does not qualify as publishing the work.

An application to register copyright in a performer’s performance, a sound recording, or a communication signal will also require the title of the subject matter, its categorization, the copyright owner’s name and complete postal address, and a declaration that the applicant is the author of the subject matter, the copyright owner of the subject matter, an assignee of the copyright, or a person who has been granted an interest in the copyright by licence.

As of December 30, 2022, the term of copyright in Canada is life-plus-seventy, an extension of 20 years from the former term of life-plus-fifty; that is to say, copyright protection now lasts for the duration of the lifetime of the author, plus 70 years from the end of the calendar year of their death.

This extension is one of the amendments to the Copyright Act articulated in Division 16 of Part 5 of Bill C-19 The Budget Implementation Act, 2022, which received royal assent on June 23, 2022. Division 16 of Part 5 of Bill C-19 will be implemented on December 30, 2022. Extending the copyright term will fulfill one of Canada’s outstanding obligations under the Canada-United States-Mexico Agreement (CUSMA), which came into force on July 1, 2020, and bring Canada in line with its trading partners. The extension of the copyright term is not retroactive. If, for example, an author died on June 1, 1970, the copyright in their works expired on December 31, 2020. Works protected by copyright on or after December 30, 2022, will receive an additional 20 years of protection. However, any works whose copyright expired before December 30, 2022, will not receive an additional 20 years of protection.

There are several exceptions to this general rule. For example, Crown or government works in Canada are protected until published and for an additional 70 years from the date of publication. A further exception exists for works of joint authorship, in which case the copyright will last for the remainder of the calendar year in which the last author dies, and for 50 years after that.

Other exceptions do exist. If you need clarity about the term of copyright in a particular work, it is best to contact a copyright lawyer who can assess your particular situation.

By and large, copyright registration is limited to creative works. Facts and ideas are not eligible for copyright, nor is anything that has already been placed into the public domain, for example, due to the expiry of the term of copyright in the work.

Licensing is the process by which you give permission to another entity to reproduce and/or disseminate your copyrighted work. You may also officially register a licence with CIPO.

Plagiarism is the replication of another individual’s work without their permission while claiming said work as one’s own. Plagiarism is an ethical offence—rather than a legal offence—and it does not necessarily encompass copyright infringement. For example, even though copying an insubstantial amount of work is legal under copyright law, it may still qualify as plagiarism unless the source has been adequately cited.

Although this is determined on a case-by-case basis, generally you do not, especially if you are employed full-time and not on contract. You will want to evaluate the contract you sign at the beginning of your employment and negotiate any intellectual property provisions if you want to retain ownership of the copyright in your work.

A work is in the public domain if the copyright registration on it has expired or if it fails to meet the requirements for copyright to subsist in the work. A work can also be in the public domain because it was given to the public by the copyright owner. Occasionally, a copyright owner will make a declaration that use of their work may be made without permission or payment.

No. Although posting work online makes it available to the public, it does not transfer it into the public domain, nor does it remove copyright protection from the work.

Publicly releasing, disclosing, or disseminating the contents of your work does not place it within the public domain.

In order to find out who owns a copyright in a work, you may browse the records of copyright registrations in your country (or in other countries, if applicable) to determine whether there has been a copyright placed on the work and whether it is still in force. However, since copyright can subsist in works that have not been registered, such a search may fail to identify the owner.

If you cannot find the copyright owner, you may consider applying for an “unlocatable copyright owner” licence from the Copyright Board of Canada. You should document any effort you make toward finding and obtaining permission from the copyright owner, as this may be useful in applying for an “unlocatable copyright owner” licence.

A work may have multiple copyright dates if it is a derivative work of another copyrighted work, or a work altered substantially but made based on a work to which it is giving attribution by citing its copyright.

Yes. The content of a website may be considered a creative work if original. To be original, a work must have originated from its author or creator, must not be copied and must be the product of an exercise of skill and judgment that is more than trivial.

No, copyright law does not protect domain names. However, that does not mean that domain names are entirely unprotected—a domain name may be able to be protected under trademark law.

The practice of sending a copy of your own work to yourself with a date stamp is sometimes referred to as a “poor man’s copyright”. However, there are no official protections for such an action, and it is not a substitute for copyright registration.

Yes. The definition of “artistic works” provided in the Copyright Act includes not only architectural works, but also the plans and drawings prepared by an architect that is used to construct a building or structure.

Generally, it is the architect, and not the builder, who has a primary claim to ownership of the copyright in architectural works, given that the copyright vests in the person who creates the drawings giving rise to the three-dimensional object.

In a joint work, all authors are considered to have equal standing for copyright registration and all become copyright holders.

Yes, if the other author has contributed to the work in a limited sense (i.e., a short introduction to a book written by another author), they may not receive equal joint rights.

A copyright assignment is an agreement to transfer, and often to sell, your copyright to another individual or entity. Unlike a licence, you lose your control over how the copyrighted work is used and the ability to claim your exclusive ownership back after a period of time.

A minor may claim copyright and obtain official registration. However, the use of said copyright in business dealings may be restricted, depending on the jurisdiction in question.

Yes. An online database of registered copyrights is made available for copyrights registered in Canada by CIPO.

No, copyright registrations do not need to be renewed.

No, the Canadian Intellectual Property Office (CIPO) does not require the submission of a physical copy of the work. In fact, CIPO does not accept copies to be submitted at the time of filing an application or after the work has been registered.

Copyrighted Works

You can indicate copyright by putting a copyright symbol (©) next to the title of your work.

No. Under Canadian copyright law, a work does not need to be registered and the symbol (©) is not required to appear on the work, nor is any other reference to copyright protection. Automatic protection is the law. However, marking a work with the copyright symbol and the name of the copyright owner may be required for certain remedies to be available if your copyright is enforced against others. See our article on copyright symbols for more information.

The royalties for copyright are separate from copyright registration as an intellectual property asset. Royalties are determined between you and the company that publishes or disseminates your work.

The responsibility of monitoring and enforcing the lawful use of your copyrighted work is left to you as the copyright owner.

The Copyright Act grants copyright owners the sole and exclusive right to create or recreate a work, and an exclusive right to ownership. If applicable, it also gives rights to publish the work, perform it in public, translate and disseminate translation of the work, convert it between artistic mediums (exceptions apply), present the work by telecommunication or other means of exhibition, and rent out the work if applicable.

Fair use is a U.S. term and the corresponding term in Canada is fair dealing. It means that, in certain cases, a copyrighted work can be used without permission of the owner to a limited degree, for certain purposes such as commenting on, criticizing, or parodying a copyrighted work. While fair use or fair dealing allows for limited use of the copyrighted work, it does not condone full replication of it.

If you believe that your copyright has been infringed, you may initiate a civil lawsuit in the Federal Court or a provincial Superior Court in order to get the infringer to cease their infringing activities and potentially be ordered by the court to pay you monetary damages.

As a preliminary step before litigation, a cease and desist letter is usually sent to the infringer. Sending a cease and desist letter can have several advantages. First, if the recipient complies with the letter, it may save you the time and cost of litigation. Second, the letter may open a pathway for negotiation between you and the recipient; for example, it may lead to a licensing agreement that is acceptable to both parties. Finally, evidence that you have tried to contact the infringer and work out a solution may be useful in future court proceedings.

In such a situation, it is best to contact a lawyer to get your situation assessed in detail and figure out an appropriate course of action. If this is a situation you have found yourself in, feel free to contact us for a complimentary and confidential telephone appointment with a member of our team.

Copyrights in Different Jurisdictions

Through international provisions outlined in the Berne Convention, your work is automatically subject to copyright upon creation in all signatory countries. Copyright registration is voluntary in some countries and needs to be checked for availability by jurisdiction. Copyright laws in countries that are not signatories to the Berne Convention need to also be checked on a case-by-case basis.

The Berne Convention is an international agreement dating back to 1886 dealing with copyright protections for authors and creators. It outlines three basic principles and contains a series of provisions for minimum protection to be granted in this international framework. The WIPO Copyright Treaty (WCT), adopted under the Berne Convention, provides additional economic rights to copyright holders internationally. It has 113 contracting parties, including Canada and the United States.

Yes, your personal information such as your first name, last name, and address will be available to the public. However, if you are both the author and owner of the work, you may use a pseudonym in place of your legal name. You may also use a post office box as the physical address you list on your copyright application to maintain privacy.

Yes, once a copyright registration has been completed it is made available as a public record. Any member of the public may view your registration record using the Canadian Copyright Database.

Copyright Disputes and Litigation

Copyright infringement occurs when a person wrongfully uses your work without your permission or does anything only an owner is allowed to do, as stated in the Copyright Act. Infringement may include acts such as copying, performing, selling/distributing or posting your work on the internet without your permission. Note, copyright infringement occurs when any substantial part of a copyrighted work is reproduced without the consent of the owner.

The first and most expeditious option is to send a cease and desist letter to the infringer that informs them of your copyrights, describes how they have infringed your rights, and demands that they cease the infringement. While the infringer is not bound to comply with your demand, they will often do so in order to avoid further legal action.

If the infringer does not comply with your demands, you may need to consider starting a court proceeding against the infringer. The Copyright Act gives the owner of the copyright—and any person driving any right, title or interest from the owner by assignment or grant in writing—the right to sue for copyright infringement.

Although the litigation process can be lengthy, once you start a court proceeding against the infringer, you can bring a motion to obtain an interlocutory injunction, which prohibits the infringer from continuing their infringing activities while the case makes its way to trial. However, note that interlocutory injunctions can be difficult to obtain in intellectual property cases.

As a copyright litigant, you have three courts that are potentially viable as an avenue for your dispute: the Federal Court, the provincial courts and, if available, the Small Claims Court in your province. However—despite not being the only court available—the Federal Court hears the majority of copyright disputes.

Yes. Copyright subsists automatically upon the creation of an original work. However, when you register your copyright, you get a certificate of registration that you can use in Court as evidence that you own the protected work. This evidence of copyright registration strengthens your case against an infringer, as copyright registrants are presumed to own the copyright in the work in question.

A copyright owner who is successful in a copyright infringement suit may obtain damages and profits under subsection 35(1) or statutory damages under subsection 38.1(1) of the Copyright Act, and in exceptional cases, punitive damages. Damages awarded under subsection 35(1) will reflect the damages suffered by the owner as a result of the infringement and may further include some part of the profits earned by the infringer as a result of the infringement.

A plaintiff may elect to receive statutory damages in lieu of damages under subsection 35(1). Statutory damages fall within a prescribed range per work infringed. The range applicable to a given dispute depends on whether the infringements were for commercial or non-commercial purposes, the former attracting larger sums of damages.