Canadian Copyright Law

[Greg Anos]

Keeping my word as a gentleman, here is the Canadian copyright law. I'm loading it as an ebook because it's lengthy. It covers everything but the kitchen sink... I want to provide the Googly bits in the next post, and not lose people...


Copyright Act Of Canada.epub

Copyright Act Of Canada - Unknown.mobi

Copyright Act Of Canada - Unknown.lrf

[EDIT: Here's a link to the location of the current, consolidated, Canadian copyright act:
http://www.cb-cda.gc.ca/act-loi/index-e.html ]

Summary of Canadian copyright lengths

• Works published during the lifetime of an author: life+50 years
• Works published posthumously before 31/12/1998: publication+50 years
• Works unpublished or published posthumously on or after 31/12/1998 for authors who died on or after 31/12/1948: Until 31/12/2048
• Works unpublished or published posthumously on or after 31/12/1998 for authors who died before 31/12/1948: Public Domain

[Greg Anos]

Now for the Googly bits....



PART I
COPYRIGHT AND MORAL RIGHTS IN WORKS
Copyright

Marginal note:Copyright in works

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thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right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.

Marginal note:Simultaneous fixing

(1.1) A work that is communicated in the manner described in paragraph (1)(f) is fixed even if it is fixed simultaneously with its communication.
(1.2) to (4) [Repealed, 1997, c. 24, s. 3]
R.S., 1985, c. C-42, s. 3; R.S., 1985, c. 10 (4th Supp.), s. 2; 1988, c. 65, s. 62; 1993, c. 23, s. 2, c. 44, s. 55; 1997, c. 24, s. 3.

4. [Repealed, 1997, c. 24, s. 4]

Works in which Copyright may Subsist

Marginal note:Conditions for subsistence of copyright

5. (1) Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work if any one of the following conditions is met:
(a) in the case of any work, whether published or unpublished, including a cinematographic work, the author was, at the date of the making of the work, a citizen or subject of, or a person ordinarily resident in, a treaty country;
(b) in the case of a cinematographic work, whether published or unpublished, the maker, at the date of the making of the cinematographic work,
(i) if a corporation, had its headquarters in a treaty country, or
(ii) if a natural person, was a citizen or subject of, or a person ordinarily resident in, a treaty country; or
(c) in the case of a published work, including a cinematographic work,
(i) in relation to subparagraph 2.2(1)(a)(i), the first publication in such a quantity as to satisfy the reasonable demands of the public, having regard to the nature of the work, occurred in a treaty country, or
(ii) in relation to subparagraph 2.2(1)(a)(ii) or (iii), the first publication occurred in a treaty country.

Marginal note:Protection for older works

(1.01) For the purposes of subsection (1), a country that becomes a Berne Convention country or a WTO Member after the date of the making or publication of a work shall, as of becoming a Berne Convention country or WTO Member, as the case may be, be deemed to have been a Berne Convention country or WTO Member at the date of the making or publication of the work, subject to subsection (1.02) and section 33.

Marginal note:Limitation

(1.02) Subsection (1.01) does not confer copyright protection in Canada on a work whose term of copyright protection in the country referred to in that subsection had expired before that country became a Berne Convention country or WTO Member, as the case may be.

Marginal note:Application of subsections (1.01) and (1.02)

(1.03) Subsections (1.01) and (1.02) apply, and are deemed to have applied, regardless of whether the country in question became a Berne Convention country or a WTO Member before or after the coming into force of those subsections.

Marginal note:First publication

(1.1) The first publication described in subparagraph (1)(c)(i) or (ii) is deemed to have occurred in a treaty country notwithstanding that it in fact occurred previously elsewhere, if the interval between those two publications did not exceed thirty days.

Marginal note:Idem

(1.2) Copyright shall not subsist in Canada otherwise than as provided by subsection (1), except in so far as the protection conferred by this Act is extended as hereinafter provided to foreign countries to which this Act does not extend.

Marginal note:Minister may extend copyright to other countries

(2) Where the Minister certifies by notice, published in the Canada Gazette, that any country that is not a treaty country grants or has undertaken to grant, either by treaty, convention, agreement or law, to citizens of Canada, the benefit of copyright on substantially the same basis as to its own citizens or copyright protection substantially equal to that conferred by this Act, the country shall, for the purpose of the rights conferred by this Act, be treated as if it were a country to which this Act extends, and the Minister may give a certificate, notwithstanding that the remedies for enforcing the rights, or the restrictions on the importation of copies of works, under the law of such country, differ from those in this Act.
(2.1) [Repealed, 1994, c. 47, s. 57]
(3) to (6) [Repealed, 1997, c. 24, s. 5]

Marginal note:Reciprocity protection preserved

(7) For greater certainty, the protection to which a work is entitled by virtue of a notice published under subsection (2), or under that subsection as it read at any time before the coming into force of this subsection, is not affected by reason only of the country in question becoming a treaty country.
R.S., 1985, c. C-42, s. 5; 1993, c. 15, s. 2, c. 44, s. 57; 1994, c. 47, s. 57; 1997, c. 24, s. 5; 2001, c. 34, s. 34.


Term of Copyright

Marginal note:Term of copyright

6. The term for which copyright shall subsist shall, except as otherwise expressly provided by this Act, be the life of the author, the remainder of the calendar year in which the author dies, and a period of fifty years following the end of that calendar year.
R.S., 1985, c. C-42, s. 6; 1993, c. 44, s. 58.

Marginal note:Anonymous and pseudonymous works

6.1 Except as provided in section 6.2, where the identity of the author of a work is unknown, copyright in the work shall subsist for whichever of the following terms ends earlier:
(a) a term consisting of the remainder of the calendar year of the first publication of the work and a period of fifty years following the end of that calendar year, and
(b) a term consisting of the remainder of the calendar year of the making of the work and a period of seventy-five years following the end of that calendar year,
but where, during that term, the author’s identity becomes commonly known, the term provided in section 6 applies.
1993, c. 44, s. 58.

Marginal note:Anonymous and pseudonymous works of joint authorship

6.2 Where the identity of all the authors of a work of joint authorship is unknown, copyright in the work shall subsist for whichever of the following terms ends earlier:
(a) a term consisting of the remainder of the calendar year of the first publication of the work and a period of fifty years following the end of that calendar year, and
(b) a term consisting of the remainder of the calendar year of the making of the work and a period of seventy-five years following the end of that calendar year,
but where, during that term, the identity of one or more of the authors becomes commonly known, copyright shall subsist for the life of whichever of those authors dies last, the remainder of the calendar year in which that author dies, and a period of fifty years following the end of that calendar year.
1993, c. 44, s. 58.

Marginal note:Term of copyright in posthumous works

7. (1) Subject to subsection (2), in the case of a literary, dramatic or musical work, or an engraving, in which copyright subsists at the date of the death of the author or, in the case of a work of joint authorship, at or immediately before the date of the death of the author who dies last, but which has not been published or, in the case of a lecture or a dramatic or musical work, been performed in public or communicated to the public by telecommunication, before that date, copyright shall subsist until publication, or performance in public or communication to the public by telecommunication, whichever may first happen, for the remainder of the calendar year of the publication or of the performance in public or communication to the public by telecommunication, as the case may be, and for a period of fifty years following the end of that calendar year.

Marginal note:Application of subsection (1)

(2) Subsection (1) applies only where the work in question was published or performed in public or communicated to the public by telecommunication, as the case may be, before the coming into force of this section.

Marginal note:Transitional provision

(3) Where
(a) a work has not, at the coming into force of this section, been published or performed in public or communicated to the public by telecommunication,
(b) subsection (1) would apply to that work if it had been published or performed in public or communicated to the public by telecommunication before the coming into force of this section, and
(c) the relevant death referred to in subsection (1) occurred during the period of fifty years immediately before the coming into force of this section,
copyright shall subsist in the work for the remainder of the calendar year in which this section comes into force and for a period of fifty years following the end of that calendar year, whether or not the work is published or performed in public or communicated to the public by telecommunication after the coming into force of this section.

Marginal note:Transitional provision

(4) Where
(a) a work has not, at the coming into force of this section, been published or performed in public or communicated to the public by telecommunication,
(b) subsection (1) would apply to that work if it had been published or performed in public or communicated to the public by telecommunication before the coming into force of this section, and
(c) the relevant death referred to in subsection (1) occurred more than fifty years before the coming into force of this section,
copyright shall subsist in the work for the remainder of the calendar year in which this section comes into force and for a period of five years following the end of that calendar year, whether or not the work is published or performed in public or communicated to the public by telecommunication after the coming into force of this section.
R.S., 1985, c. C-42, s. 7; 1993, c. 44, s. 58; 1997, c. 24, s. 6.

8. [Repealed, 1993, c. 44, s. 59]

Cases of joint authorship

9. (1) In the case of a work of joint authorship, except as provided in section 6.2, copyright shall subsist during the life of the author who dies last, for the remainder of the calendar year of that author’s death, and for a period of fifty years following the end of that calendar year, and references in this Act to the period after the expiration of any specified number of years from the end of the calendar year of the death of the author shall be construed as references to the period after the expiration of the like number of years from the end of the calendar year of the death of the author who dies last.

Nationals of other countries

(2) Authors who are nationals of any country, other than a country that is a party to the North American Free Trade Agreement, that grants a term of protection shorter than that mentioned in subsection (1) are not entitled to claim a longer term of protection in Canada.

R.S., 1985, c. C-42, s. 9; 1993, c. 44, s. 60.

Term of copyright in photographs

10. (1) Where the owner referred to in subsection (2) is a corporation, the term for which copyright subsists in a photograph shall be the remainder of the year of the making of the initial negative or plate from which the photograph was derived or, if there is no negative or plate, of the initial photograph, plus a period of fifty years.

Where author majority shareholder

(1.1) Where the owner is a corporation, the majority of the voting shares of which are owned by a natural person who would have qualified as the author of the photograph except for subsection (2), the term of copyright is the term set out in section 6.

Author of photograph

(2) The person who

(a) was the owner of the initial negative or other plate at the time when that negative or other plate was made, or

(b) was the owner of the initial photograph at the time when that photograph was made, where there was no negative or other plate,

is deemed to be the author of the photograph and, where that owner is a body corporate, the body corporate is deemed for the purposes of this Act to be ordinarily resident in a treaty country if it has established a place of business therein.

R.S., 1985, c. C-42, s. 10; 1993, c. 44, s. 60; 1994, c. 47, s. 69(F); 1997, c. 24, s. 7.

11. [Repealed, 1997, c. 24, s. 8]

Cinematographic works

11.1 Except for cinematographic works in which the arrangement or acting form or the combination of incidents represented give the work a dramatic character, copyright in a cinematographic work or a compilation of cinematographic works shall subsist

(a) for the remainder of the calendar year of the first publication of the cinematographic work or of the compilation, and for a period of fifty years following the end of that calendar year; or

(b) if the cinematographic work or compilation is not published before the expiration of fifty years following the end of the calendar year of its making, for the remainder of that calendar year and for a period of fifty years following the end of that calendar year.

1993, c. 44, s. 60; 1997, c. 24, s. 9.

Where copyright belongs to Her Majesty

12. Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year.

R.S., 1985, c. C-42, s. 12; 1993, c. 44, s. 60.
Ownership of Copyright

Ownership of copyright

13. (1) Subject to this Act, the author of a work shall be the first owner of the copyright therein.

Engraving, photograph or portrait

(2) Where, in the case of an engraving, photograph or portrait, the plate or other original was ordered by some other person and was made for valuable consideration, and the consideration was paid, in pursuance of that order, in the absence of any agreement to the contrary, the person by whom the plate or other original was ordered shall be the first owner of the copyright.

Work made in the course of employment

(3) Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, but where the work is an article or other contribution to a newspaper, magazine or similar periodical, there shall, in the absence of any agreement to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine or similar periodical.

Assignments and licences

(4) The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations relating to territory, medium or sector of the market or other limitations relating to the scope of the assignment, and either for the whole term of the copyright or for any other part thereof, and may grant any interest in the right by licence, but no assignment or grant is valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by the owner’s duly authorized agent.

Ownership in case of partial assignment

(5) Where, under any partial assignment of copyright, the assignee becomes entitled to any right comprised in copyright, the assignee, with respect to the rights so assigned, and the assignor, with respect to the rights not assigned, shall be treated for the purposes of this Act as the owner of the copyright, and this Act has effect accordingly.

Assignment of right of action

(6) For greater certainty, it is deemed always to have been the law that a right of action for infringement of copyright may be assigned in association with the assignment of the copyright or the grant of an interest in the copyright by licence.

Exclusive licence

(7) For greater certainty, it is deemed always to have been the law that a grant of an exclusive licence in a copyright constitutes the grant of an interest in the copyright by licence.

R.S., 1985, c. C-42, s. 13; 1997, c. 24, s. 10.

Limitation where author is first owner of copyright

14. (1) Where the author of a work is the first owner of the copyright therein, no assignment of the copyright and no grant of any interest therein, made by him, otherwise than by will, after June 4, 1921, is operative to vest in the assignee or grantee any rights with respect to the copyright in the work beyond the expiration of twenty-five years from the death of the author, and the reversionary interest in the copyright expectant on the termination of that period shall, on the death of the author, notwithstanding any agreement to the contrary, devolve on his legal representatives as part of the estate of the author, and any agreement entered into by the author as to the disposition of such reversionary interest is void.

Restriction

(2) Nothing in subsection (1) shall be construed as applying to the assignment of the copyright in a collective work or a licence to publish a work or part of a work as part of a collective work.

(3) [Repealed, 1997, c. 24, s. 11]

(4) [Repealed, R.S., 1985, c. 10 (4th Supp.), s. 3]

R.S., 1985, c. C-42, s. 14; R.S., 1985, c. 10 (4th Supp.), s. 3; 1997, c. 24, s. 11.

14.01 [Repealed, 1997, c. 24, s. 12]

[Greg Anos]

Now for some comments on the Googly bits... There is an escape clause saying that the terms can be modified by treaty, with the change being published in the Canadian Gazette. I have not gone through the Canadian Gazette to see what little gems have been slipped in....

However, there are some interesting bits...

One, there is no separate term for works for hire. They fall under Anonymous work rules. Which means publication + 75 years. This is most interesting. Example - Doc Savage. Under the rules the first year (1933) would be PD in Canada if the writer remained anonymous. However, Lester Dent did not remain anonymous, so the timer then falls under his life + 50 limit. He died in 1959. That means, assuming that there is no overriding Canadian Gazette law overrides, the his works go PD in January. So arguing either way, 1933 and 1934 issues of Doc Savage should be PD in Canada in 2010, as they were written solely by Dent for those years.

But don't get your hopes up, as Conde Nast would be sending cease and desist letters (just like the Mitchell estate) the second they would be posted.

[Pulpmeister]

Here's a curly one.

I have a digital edition, prepared by me, of Sir Malcolm Campbell's novel "Salute to the Gods" (1934).

Campbell died in 1948. However, so far as I can tell, the book with written in collaboration with an un-attributed ghost writer who was, it seems, James Wentworth Day. Wentworth Day (if indeed he was the ghost writer) died in 1983.

I assume that in this case the original copyright was always Campbell's, and that Wentworth-Day was acting as an employee of Campbell's for the novel.

Question: Is this book now in the public domain in life + 50 countries?

I know it is in Australia, assuming Campbell was sole copyright owner, because there was no back-dating when Australia went from Life +50 to Life + 70, ie, anything already in the public domain at the time of the change to life + 70 stayed in the public domain. This book was in the Aust Life + 50 PD at the time of the Aust copyright change.

[Greg Anos]

Originally Posted by Pulpmeister

Here's a curly one.

I have a digital edition, prepared by me, of Sir Malcolm Campbell's novel "Salute to the Gods" (1934).

Campbell died in 1948. However, so far as I can tell, the book with written in collaboration with an un-attributed ghost writer who was, it seems, James Wentworth Day. Wentworth Day (if indeed he was the ghost writer) died in 1983.

I assume that in this case the original copyright was always Campbell's, and that Wentworth-Day was acting as an employee of Campbell's for the novel.

Question: Is this book now in the public domain in life + 50 countries?

I know it is in Australia, assuming Campbell was sole copyright owner, because there was no back-dating when Australia went from Life +50 to Life + 70, ie, anything already in the public domain at the time of the change to life + 70 stayed in the public domain. This book was in the Aust Life + 50 PD at the time of the Aust copyright change.

Marginal note:Anonymous and pseudonymous works of joint authorship

6.2 Where the identity of all the authors of a work of joint authorship is unknown, copyright in the work shall subsist for whichever of the following terms ends earlier:
(a) a term consisting of the remainder of the calendar year of the first publication of the work and a period of fifty years following the end of that calendar year, and
(b) a term consisting of the remainder of the calendar year of the making of the work and a period of seventy-five years following the end of that calendar year,
but where, during that term, the identity of one or more of the authors becomes commonly known, copyright shall subsist for the life of whichever of those authors dies last, the remainder of the calendar year in which that author dies, and a period of fifty years following the end of that calendar year.
1993, c. 44, s. 58.