Knitter's Guide to Copyright
The Knitter's Guide to Copyright: Copyright Basics
B. What is copyright?
2. Where does copyright protection come from?
3. What can be protected by copyright?
4. Where does copyright apply?
5. How long does copyright protection last?
6. Who owns the copyright in a work?
1. What does copyright do?
In a nutshell, copyright law is about giving authors (creators) control over the copying of their work. This control is achieved by giving authors of copyrighted works the exclusive right to carry out certain acts, and the exclusive right to authorize others to carry out these acts. Such acts include:
making reproductions of a work
making reproductions of substantial parts of a work
translating a work
adapting a work to another form (e.g. adapting a novel for a screenplay)
performing a work (such as a play or a song) in public
broadcasting a work (such as a television program or a song)
publishing a work for the first time
There are other rights that are specifically listed in the Copyright Act, but for our purposes, these are the essential ones.
To balance the power given to authors, copyright law also assures that certain uses by the public are permitted in the interest of cultural development.
2. Where does copyright protection come from?
Copyright protection arises automatically once a work that meets the statutory requirements is created (these statutory requirements are described in Section B.3 of Copyright Basics).
There is no need to register a copyright, although there are distinct advantages to registration. Of all the forms of intellectual property protection, automatic protection of qualifying works is unique to copyright. Patents and industrial designs require registration. A trade-mark does not have to be registered, but if it is not, enforcement becomes more difficult. Confidential information (or a trade secret) does not require registration, but in order to legally protect a trade secret, it must first be treated confidentially.
Canadian copyright law is federal statutory law. Copyright protection arises from an act of Parliament, the Copyright Act. Parliament has exclusive jurisdiction over copyright; this means that provincial legislatures cannot enact their own copyright laws. There is no “common law” copyright.
The Act is available from the Department of Justice here.
(A web-browsable copy of the U.S. Copyright Act is available here.)
The Copyright Act, like all acts of a legislature, is interpreted by the courts and administrative bodies who have jurisdiction over this area of law. In Canada, all courts have jurisdiction to decide issues of copyright law (this includes the courts of each province and the Federal Court of Canada). There is also an administrative tribunal called the Copyright Board, which fixes the royalty rates collected by various copyright collective societies for the public performance, broadcast, reproduction, or other distribution of works in the societies’ repertoires.
(I don’t mean to get historical here. If you are interested in the development of copyright laws, try a copyright textbook or do a search on the net for “Statute of Anne”.)
3. What can be protected by copyright?
There are three requirements that must be met before something can be protected by copyright: first, it must be appropriate subject matter; second, it must be sufficiently original; and third, the author or maker must have citizenship or residence in a treaty country.
3.1 Subject matter
The types of subject matter eligible for copyright protection are listed in section 5(1) of the Copyright Act:
literary works
dramatic works
musical works
artistic works
These types of works are generally defined in the Copyright Act, and on occasion the Courts have had an opportunity to further refine these definitions.
A literary work generally refers expressions in print or in writing. It includes tables, computer programs, and compilations of literary works. Therefore, it includes written or printed knitting instructions.
A dramatic work includes any piece for recitation, choreographic work or mime, where the scenic arrangement or the form of acting is fixed in writing; any cinematographic work; and any compilation of dramatic works.
A musical work means any work of music or musical composition, with or without words, including any compilation of works of music or musical composition.
An artistic work includes paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works.
What is meant by “artistic”, however, is not completely resolved. If a work can be defined as one of the types listed above (like a photograph or a drawing), then a Court would likely consider it to be an artistic work. However, sometimes the Courts have required that a work possess some type of aesthetic appeal or that the reason for its creation must be for providing some kind of aesthetic enjoyment.
The definition of a “work of artistic craftsmanship”, which is one of the types of artistic works listed above, also is not absolutely settled in case law. It can include a chair or a quilt, but probably not mass-produced items. One view is that for a work to be of artistic craftsmanship, it must have been produced using the special skill and knowledge of a type employed by an artisan. An article of clothing (such as a knitted garment), therefore, might be considered to be a work of artistic craftsmanship, and therefore an artistic work.
Whatever it is that is protected by copyright, it must be a form of expression, not merely an idea. For example, a novel is protected by copyright, but the plot ideas behind the novel are not. And if you tell your friends about a marvellous idea you had, you cannot use copyright law to prevent anyone from exploiting that idea themselves. A technique is not protectable by copyright, because it does not fall into one of the classes of works which is protected, and it is not the expression of an idea, it is a concept of carrying out an action; however, if instructions for working the technique were reduced to writing or videotaped, the written instructions and the cinematographic work may be protected by copyright.
3.2 Originality
Section 5(1) of the Copyright Act specifies that copyright subsists in every original literary, dramatic, musical and artistic work.
“Original” is not the same as “new”. It is not necessary for a work to be unique and the first of its kind in the world to be an original work protected by copyright. It is enough that the author(s) came up with the work himself (or themselves) and did not copy it. If two people independently write the same poem or paint the same picture, then they may both have copyright in the work. If two people write different stories based on the same theme of star-crossed lovers whose feuding families cause them to keep their marriage secret, they may both have copyright in their own stories.
The best definition of an “original” work is one that requires skill, judgment, and labour to create. There must be some element of human input into the creation of a work, which is beyond mere routine task. More recently, a Court has stated that not only are skill, judgment, and labour necessary, but there must also be a “modicum of creativity” in the work as well.
Trivial works, such as titles, brief instructions, advertising phrases, or trivial changes to a pre-existing work, are generally not original enough to merit copyright on their own.
There are no bright dividing lines between what is “original” and what is not.
It would be unfair to extend copyright protection to the point that an author’s copyright would capture any work that was based on his own. After all, it is possible to be inspired by another person’s work and follow similar themes without copying the original expression. Therefore, originality is bound by the resources commonly available to others creating similar works.
For example, the use of stripes, leaves, or fruit designs on a garment is merely a concept and cannot be protected. These features are commonly available to others designing garments. However, the particular arrangement of the strips, leaves, or fruit designs on a garment may be sufficiently original to merit copyright protection.
3.3 Citizenship or residence
The Copyright Act also specifies that the author of the work, at the date the work was created, must be either:
a citizen,
a subject, or
normally resident in a “treaty country”.
A “treaty country” is a country that is a member of or party to the Berne Convention, the World Trade Organization, or the Universal Copyright Convention. Both Canada and the United States are parties or members to all three.
4. Where does copyright apply?
Any country can only grant copyright protection within its borders. However, most countries are party to at least one international treaty which gives copyright owners in one country access to copyright protection in other countries.
As long as a work is created by an author who is a citizen of, or normally resident in, another country which is a signatory to one of these treaties, then it is also protected by copyright in Canada.
5. How long does copyright protection last?
Generally, in Canada the term of copyright protection expires 50 years from the end of the calendar year of the author’s death (“life plus fifty”). The term of copyright protection varies from country to country.
There are some modifications to this general rule:
If more than one person authored the work in question, then the “life plus fifty” rule is used in reference to the author who dies last. However, if one of the authors is a national of a non-NAFTA country, and his country grants a shorter term of copyright protection, then he is not entitled to claim the longer, Canadian term of protection.
If the work in question is anonymous, then the term expires on the earlier of (a) 50 years from the end of the calendar year of the first publication of the work, or (b) 75 years from the end of the calendar year of the making of the work. If the work ceases to be anonymous, then the general rule (life plus fifty) applies.
If copyright in the work is owned by the Crown, then the term of copyright expires 50 years from the end of the calendar year of first publication of the work.
If the work in question is a cinematographic work without dramatic character, then the term of copyright expires 50 years from the end of calendar year of first publication of the work.
In the case of a photograph, if the owner of the initial negative or photograph at the time it was made is a person (not a corporation), the owner is the author and the term of copyright follows the life plus fifty rule.
But if the work is a photograph, and the owner of the initial negative or photograph at the time it was made is a corporation, then it is presumed that the corporation is the author and the term of copyright expires 50 years from the end of the calendar year when the initial negative or photograph was made. But, if the majority shareholder of the corporation is the person who would be the author under normal circumstances (glossing over messy wording here), then the term of copyright follows the (person’s) life plus fifty rule.
If the work in question is unpublished as of the author's death, the term of copyright is currently in flux, thanks to lobbying by the heirs of Lucy Maud Montgomery (author of Anne of Green Gables) and others. There will be amendments to the Copyright Act that will result in complicated extensions to the term of copyright in posthumous works.
6. Who owns the copyright in a work?
The default answer is that the owner of copyright in a work is the author of that work.
However, there are circumstances where another person or entity who is not the author may own the copyright:
The author may assign (i.e. give) his or her copyright to someone else.
An agreement or contract between the author and another person or company may state that copyright in the work would be owned by that other person or company. This agreement could state that after a certain period elapses, copyright ownership would return to the original author (this might arise in a publishing agreement)
Copyright may belong to the author’s employer.
The nature of an employment relationship affects ownership of copyright. For example, an employee who creates a work in the course of her duties probably would not own copyright in the work, although she would be the author. But a person who is commissioned to make a particular work and is allowed to use his own skill and judgment in its creation--for example, an artist commissioned to produce a sculpture--would own the copyright in the work, unless there was an agreement to the contrary.
Whoever the copyright owner is, she may assign or license some or all of her rights under the Copyright Act to another person. Section 13 of the Copyright Act states that an agreement to assign or license a right must be in writing.
In an assignment, the right is transferred (for example, sold) to the other person. This other person becomes the copyright owner, and the previous copyright owner does not retain that right anymore. In a licence, the copyright owner (the licensor) remains the copyright owner, but permits the other person (the licensee) to carry out an activity, on an exclusive, sole, or a non-exclusive basis.
If the arrangement is exclusive, the licensor has agreed not to give a licence to anyone else and that only the licensee can exploit those rights (even to the exclusion of the licensor); if the arrangement is a sole licence, then the licensor has agreed not to give a licence to anyone else; and if the arrangement is non-exclusive, the licensor can license another person. The copyright owner may parcel off her rights to different assignees or licensees. Those rights, however, may revert back to the author's heirs after a certain period of time after the author's death.
For example, the author of a popular comic book series might own copyright in the books and pictures of the characters in the books. The author could assign (sell) the movie rights to a production company, and license a manufacturer to make toys. This author would no longer be able to stop a third person from converting his comic books into a movie without permission, because that particular right was assigned to the production company (so it would be the production company’s responsibility to stop such infringers). However, the author can still sue a third person for making toys based on his characters without permission.