User:Mken86/sandbox

The copyright law of Canada outlines the legally enforceable rights in relation to creative and artistic works under Canadian law. Copyright law is governed by the Copyright Act of Canada. It is a creature of statute and the rights and remedies it provides are exhaustive. The governing principles of copyright law incorporate both moral and economic rights that provide a perspective of why such laws exist and what they aim to encourage.

Origins of copyright law

Copyright began as a response to the eighteenth century book trade in London; then “reeling from the demise of its role as the Crown’s censor of books .” Following the French revolution of 1789, copyright was repackaged as a basic human right. Copyright further expanded to the scope of creative arts and beyond. Copyright is a protective law and displaces the general 'hands off position' of the law. The basic idea is that those who create must reap from what they sow and be protected from those reaping without sowing.

Canadian Origins

The origins of copyright law date back before confederation where Canada’s settlors saw the need to protect intellectual property rights as self-evident truth . The first Canadian statutes were modelled on British laws with an influence of American law. Their origins are distinctly influenced by two late nineteenth century international treaties: the Paris Convention for the Protection of Industrial Property of 1883 and the Berne Convention for the Protection of Literary and Artistic Works of 1886. The Berne Convention treaty is particularly important to the development of copyright law as it focused on author’s rights. Canada was brought into these treaties as a member of the British Empire. Canada has always protected both foreign and domestic authors with the exclusion of indigenous people; “native culture was thought to be free for the taking.” Following confederation, Canada actively participated in revisions of these main treaties throughout the twentieth century. Implementing the rights however took a lot longer than their creation. The Paris Convention revisions were not ratified until 1967 and the Berne Convention revisions not till 1971. The Rome Convention of 1961 was not itself ratified until 1998.

Canadian Copyright Act

Current Canadian copyright law is based on the Copyright Act enacted in 1921 (in force in 1924); it is similar to the 1911 U.K. Copyright Law that complies with the Berne Convention as revised in 1908. This Act provides the basis for Canadian copyright law today with amendments occurring over time. The Act`s first major amendment was in 1931 to emulate the revisions to the Berne Convention in 1928. Further amendments have been made since 1988 to reflect the following trade and copyright treaties Canada has entered into:

• The North American Free Trade Agreement of 1992;
• The Agreement on Trade-Related Aspects of Intellectual Property Rights of 1994;
• The latest version of the Berne Convention (1971); and
• The Rome International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations of 1961.

Latest developments

Canada plans to implement two treaties concluded by the World Intellectual Property Organization (WIPO) in 1996: the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty. Furthermore, the Copyright Modernisation Act, commonly referred to as Bill C-32, was introduced by Parliament on 2 June 2010 however was not legislated. A largely similar bill, Bill C-11, has been tabled and is awaiting a parliamentary vote. Copyright laws are constantly evolving in Canada to represent international consolidation, to incorporate modern technology and adapt to changing economic and social norms. It is an evolving process, always adapting:“Just how, when and where the law should protect investments in “intangible” benefits or goods is a matter that legislators typically debate, embodying the results in specific statutes, or that common law courts, carefully weighing competing interests, gradually work out over time.”

Philosophical approaches to copyright

There is the question of what right copyright confers; is it a personal right or a property right? “In a 1985 Canadian parliamentary subcommittee report on copyright reform, [the committee] took as its lodestar the assertion that ownership is ownership is ownership; the copyright owner owns the intellectual works in the same sense as a landowner owns land.” However intellectual property is not land nor is it physical property; but it can be treated as personal intangible property. The circular notions of whether ‘intellectual property is real property’ or ‘ownership is ownership is ownership’ does not offer a solution. Philosophical approaches to copyright through moral, economic and traditional perspectives help identify the purpose of copyright and the right it confers. The governing principles of the Copyright Act relate to the creator obtaining both an economic and moral right to their work. “The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated).”

Moral perspective

Moral rights are those that credit the author for their work and do not alter or diminish their reputation. The author has a right to reap the benefit of what they create. However once that benefit has been received the law generally grants the user control. Once the interest is transferred only a moral right remains. As Binnie J in Theberge explains: “They treat the artist's oeuvre as an extension of his or her personality, possessing a dignity which is deserving of protection. They focus on the artist's right (which by s. 14.1(2) is not assignable, though it may be waived) to protect throughout the duration of the economic rights (even where these have been assigned elsewhere) both the integrity of the work and his or her authorship of it (or anonymity, as the author wishes).”

Economic perspective

From an economic point of view, copyrights are said to encourage the disclosure of work to the public and increase society`s pool of ideas and knowledge. The utilitarian view is the strongest proponent of the economic argument: ‘without such rights, much research and creativity would not be carried on or would not be financed by capitalists.’ Such rights however cannot be too far in favour of the author. Binnie J in Theberge adds: “Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.” Copyright laws can prevent public release and disclosure of ideas and knowledge. To add to this there is no evidence that copyright law encourages the creation of ideas since creative work and ideas have flourished throughout the world long before any law came into effect. Originally, copyright laws were developed to encourage culture. Today however copyright is a mechanism to support profit maximizing practices that are somewhat anti-competitive; price discrimination, immigration controls on goods, aftermarket repair and rental, and bans on product substitution.

Traditional perspective

A traditional perspective on copyright law focuses on a balance between the creator and the user. “We must take care to guard against two extremes equally prejudicial; the one, that men of ability, who have employed their time for the service of the community, may not be deprived of their just merits, and the reward of their ingenuity and labour; the other, that the world may not be deprived of improvements, nor the progress of the arts be retarded”. These laws need to encourage the production and spreading of ideas and creations unless specifically prohibited. This encourages further innovation creating an expectation of lower prices, better service and greater public choice. Copyright laws should not enable oppression or extortion and hinder competition. They should encourage competition to create products or ideas that surpass those protected by copyright. Copyright is about the regulation of expression. No longer is there an author bias rather an author/user equality of rights. The Canadian Charter of Rights and Freedoms has recognised the ability of copyright law to intrude on individual rights and freedoms. Copyright laws should not be developed to restrict free expression.

Common law perspective

The Théberge case is a significant Canadian copyright case that offers an insight into the common law perspective of copyright law. The facts of the case involve an artist concerned with a user altering his work from poster form to a canvas. The ink was removed from the poster so the work was not copied. As Binnie J explains: “If modification of these posters were to give rise to any legitimate objection on the part of the artist, it must be as a result of violation of his "moral" right to the integrity of his work.” Although Canadian law has traditionally focused on the economic perspective, this case strongly advocates the need for a moral right. The important feature of moral rights in the present statute is that the integrity of the work is infringed only if the work is modified to the prejudice of the honour or reputation of the author. Binnie J further stresses the balance between the author and the user: the purpose is to encourage society to embellish creative innovation for the long term interests of society. At the same time, the author must be compensated for their initial work. This case discusses finding the right balance whilst recognizing the moral right the author maintains even when the copyright of the work may have passed.

Comparison to the United States

The US case of Feist is another significant case in the area. In US copyright law, the primary objective is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts." O’Connor J supports this principle, known as the idea/expression or fact/expression dichotomy. It applies to all works of authorship with little recognition of a moral right remaining with the author. Feist acknowledges are far less balanced approach to copyright law when compared to the majority in the Canadian Case of Théberge. The dissenting judgment of Gonthier J in Théberge explains a precedent that is far more aligned to Feist: "The purpose of copyright is not to protect the ideas or opinions expressed by the creator, but rather the various means and forms by which those ideas are communicated" Both these perspectives are geared toward the innovation of the idea itself. There is no real acknowledgment of the author’s moral right and the perspective is balanced in favour of the user.

Copyright protection

As mentioned above, Canadian Copyright law is not designed to protect every piece of work. To be protected, work must satisfy a number of key features.

Originality

Only original work can be protected. It must originate from the owner, must not be copied and involve some minimal intellectual effort. The idea is to protect against the unauthorised abuse of intellectual effort.

Copying only

Copyright law only prevents unauthorised copying. Copyrights are therefore able to offer long term protection since the author must show that their specific work was taken and not just used as an inspiration.

Expression only

Copyright protects expression only. An expression does not include an idea, scheme, system or style: to infringe copyright one must imitate another’s expression. Some simple expressions are excluded from this protection.

Balance

As the general principles and traditional perspective illustrate, there must be a balance between the access and protection of copyright material. Copyright must encourage author’s to invest in ideas but not prohibit society from improving and innovating those ideas to better society. It is a balance that copyright law must continue to address and develop as technology and social norms evolve over time.

Content neutrality

Copyright laws are significantly liberal: work is protected whatever its quality, morality or even legality. Copyright should exist in material that is “scandalous, obscene or immoral” even if a statute bars its adoption as a trade mark or other uses in business.

Sound recordings, performers, and broadcasters: neighbouring rights

Since the Rome Convention, neighbouring rights have been awarded to performers and producers. Even though neither are an author, both are seen to demonstrate an expression in the execution of the work and are therefore granted neighbouring rights of copyright.

Application to register

A copyright automatically protects a work so registration is an optional course of action. Registration becomes relevant when the original author is difficult to determine or when litigation arises.