Copyright Protection: Scope and Limitations

Copyright is the exclusive right to reproduce, perform, publish, display, and make adaptations of a work as well as the right to authorize any or all of these acts.  If a work benefits from copyright protection, then the author or copyright holder can normally exercise their right to exclude others engaging in unauthorized acts (known as copyright infringement).

In order to fall within the scope of copyright, a work must meet certain requirements stated in the Copyright Act and interpreted by Canadian courts.

  1. The work must be original →The work must originate from an author and show an exercise of that author’s skill and judgment.
  1.   The work must be fixed →The work must exist in material or material form.
  1.   The work must meet nationality requirements →The work must have been made by a Canadian or a citizen/subject/resident of a treaty country (Berne Convention member, World Trade Organization member orUniversal Copyright Convention member).*

Copyright protection extends to the expression of ideas in a work, not to ideas themselves or facts.  For example, a painter may have copyright in his depiction of a poodle sleeping on a couch, giving the author the sole right to reproduce and display his/her work.  The painter does not have, however, copyright in any and all images of a poodle sleeping on a couch.  The idea of a poddle sleeping on a couch remains available to other artists to use as a basis for their own original depictions.

When a work falls within the scope of copyright, there are still certain limitations on copyright protection.

Term

One limitation is the duration or term of copyright protection.  Copyright does not extend indefinitely.   The general rule in section 6 of the Copyright Act is that copyright exists for the life of the author plus fifty years, starting at the beginning of the calendar year following the author’s death.*  At the end of the copyright term, works enter the public domain and may be used freely.  As of January 1, 2014, the works of the following authors, among others, entered the public domain in Canada: C.S. Lewis, Sylvia Plath, Robert Frost and W.E.B Du Bois.

Exceptions

Normally, an author or copyright holder can exclude unauthorized parties from reproducing, performing, publishing, displaying, and/or making adaptations of a work for which the author has copyright.  However, the Copyright Act allows in certain instances what would otherwise be the unauthorized use of works by creating exceptions to copyight infringement.  Some of these exceptions include: (1) the use of copyrighted material for the purpose of research, private study, education, parody/ satire, criticism/review or news reporting (referred to as the fair dealing exception); and (2) the use of copyrighted material by certain institutions or entities for particular purposes such as reproduction for instruction by educational institutions or reproduction by libraries, archives and museums for management and maintenance of their collections. If an person’s use of an author’s work falls under an exception, the author does not have to right to exclude the person from using his/her work, although the author continues to have the right to exclude others from the unauthorized use of his/her work that does not fall under an exception.