Automatic protection for Canadian and foreign works

When you create a work or other subject matter protected by copyright, you will automatically have copyright protection provided that, at the time of creation, you were:

1. a Canadian citizen or a person ordinarily resident in Canada;

2. a citizen or subject of, or a person ordinarily resident in, a Berne Convention country, a Universal Copyright Convention country, a Rome Convention country (for sound recordings, performer's performance and communication signals only), or a country that is a member of the World Trade Organization (WTO); or

3. a citizen or subject of, or a person ordinarily resident in any country to which the Minister has extended protection by notice in the Canada Gazette.
In some cases, you would also obtain automatic copyright if your work was first published in one of the countries included among those who have signed the Berne, Universal Copyright or Rome conventions or the WTO agreement, even if you were not a citizen or subject of Canada, or of one of those countries.

In short, virtually everyone living in Canada can enjoy the benefits of automatic copyright protection. In addition, Canadians are protected in most foreign countries since most belong to one or more of the international treaties — the Berne Convention or the Universal Copyright Convention, the Rome Convention or are members of the WTO. Citizens of countries which are members of those conventions enjoy the benefits of Canadian copyright law in Canada. Canada also extends protection to certain non-member countries by way of notice in the Canada Gazette.

Sound recordings themselves are protected internationally under the Rome Convention and under the copyright treaties, but there is quite a variation internationally as to the nature of the protection given to sound recordings. In Canada, sound recordings enjoy a broad range of protection under the Copyright Act.

Authorship

The author is normally the person who creates the work. See the discussion "Authorship" later in this guide under "Registration of copyright."

Ownership

Generally, if you are the creator of the work, you own the copyright. However, if you create a work in the course of employment, the copyright belongs to your employer unless there is an agreement to the contrary. Similarly, if a person commissions a photograph, portrait, engraving, or print, the person ordering the work for valuable consideration is the first owner of copyright unless there is an agreement to the contrary. The consideration must actually be paid for the copyright to belong to the person commissioning the photograph, portrait, engraving, or print. Also, you may legally transfer your rights to someone else, in which case, that person owns the copyright.

Duration

Copyright in Canada protects "intellectual" as opposed to "physical" property. One difference between intellectual and physical property is that ownership of physical property, such as a boat or a toaster, is perpetual. One continues to own physical property until it is given away, sold, consumed or destroyed. Ownership of intellectual property, like copyright, is different. Copyright ends at a legally defined point in time. These points in time are set out in rules in the Copyright Act. There is one general rule and many special rules that apply to certain kinds of works.

General rule

The general rule is that copyright lasts for the life of the author, the remainder of the calendar year in which the author dies, and for 50 years following the end of the calendar year. Therefore, protection will expire on December 31 of the 50th year. After that, the work becomes part of the public domain and anyone can use it. For example, Shakespeare's plays are part of the public domain; everyone has an equal right to produce or publish them. This rule applies to all categories of works except those to which special rules apply. Some of the more important special rules are listed below.

Photographs

There are three possible terms of copyright protection for a photograph:

1. First, where the author is a natural person, the term of protection is the remainder of the calendar year in which the author dies, and for 50 years following the end of the calendar year.

2. Second, if the author of the photograph is a corporation in which the majority of voting shares are owned by a natural person who is the author of the photograph (e.g. a commissioned photograph), then the term of copyright protection is the remainder of the calendar year in which the author dies, and for 50 years following the end of the calendar year.

3. Third, if the author of the photograph is a corporation in which the majority of voting shares are not owned by a natural person who is the author of the photograph (e.g. a commissioned photograph), then the term of copyright protection is 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, the remainder of the initial photograph, plus 50 years.

Certain cinematographic works

The duration of protection for cinematographic works which do not have an original arrangement, acting form or combination of incidents (e.g. most home videos) is the remainder of the calendar year of first publication and for 50 years following the end of that calendar year. However, if the cinematographic work is not published within 50 years following the end of the calendar year of its making, copyright lasts for 50 years following the end of the calendar year of its making. (In other words, a film or video published within 50 years of its making is protected for 50 years from the date of publication. If it was not published within that 50-year period, it is protected for 50 years from the date of making.) These rules apply to all cinematographic works where the arrangement, acting form or combination of incidents do not give the work an original character (i.e. most home videos).

Films and videos which do have an original arrangement, acting form or combination of incidents have always been protected for the life of the author plus 50 years.

Sound recordings

This category includes audio cassettes, CDs, recordings and similar devices. Copyright lasts for 50 years after the end of the calendar year of the first fixation of the sound recording.

Performer's performance

Copyright lasts for 50 years after the end of the calendar year in which the performance is first fixed or, if it is not fixed, 50 years after it is performed.

Communication signals

Copyright lasts for 50 years after the end of the calendar year in which the signal was broadcast.

Works of Crown copyright

These are works created for or published by the Crown, i.e., government publications. Copyright in these works lasts for the remainder of the calendar year in which the work was first published, and for 50 years after that. Copyright is perpetual until the work is published. Laws enacted by the Government of Canada, decisions and reasons for decisions of federally constituted courts and administrative tribunals are subject to special copyright rules. Anyone may, without charge and without asking permission, reproduce federal laws, decisions and reasons for decisions of federal courts and administrative tribunals. The only condition is that due diligence is exercised in ensuring the accuracy of the material reproduced and the reproduction is not represented as an official version.

Permission to use works owned by the Crown may be obtained from:
Crown Copyright Officer
Canadian Government Publishing
Public Works and Government Services Canada
Ottawa ON K1A 0S9

Joint authorship

In the case of a work which has more than one author, the term will be measured using the life of the author who dies last and 50 years following the end of that calendar year.

Unknown author

In the case of a work where the identity of the author is unknown, but the work is protected for the life of the author, the copyright subsists for whichever of the following terms ends earlier:
1. the remainder of the calendar year of the first publication of the work and a period of 50 years after that; or
2. the remainder of the calendar year of the making of the work and 75 years after that.

Posthumous works

These are works which have not been published (or for certain types of works which have not been published or performed or delivered in public) during the lifetime of the author.

The duration of the copyright in these works depends upon the date of creation of the work. If the work was created after July 25, 1997, the term of copyright protection is the life of the author, the remainder of the calendar year in which the author dies, and for 50 years following the end of the calendar year.

If the work was created before July 25, 1997, then three different scenarios can exist:

1. First, the author dies, the work is published, performed or delivered prior to July 25, 1997, the copyright lasts for the remainder of the calendar year in which the work was first published, performed or delivered and for 50 years after that.

2. Second, the author dies during the 50 years immediately before July 25, 1997, and the work has not been published, performed or delivered on July 25, 1997, the copyright lasts until December 31, 1997 (for the remainder of the calendar year in which Bill C-32 comes into force and for 50 years following the end of that calendar year).

3. Third, the author died more than 50 years immediately before July 25, 1997, and the work has not been published, performed or delivered on July 25, 1997, the copyright lasts until December 31, 1997 (for the remainder of the calendar year in which Bill C-32 comes into force and for five years following the end of that calendar year).