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Legal Guide


General

In Canada, copyright is governed solely by the Copyright Act, and means the sole right to produce or reproduce in any material form, perform, or deliver in public, or publish a work or any substantial part of the work. Copyright arises upon the creation of a particular work and registration is not required to enforce copyright. Generally, copyright subsists for the life of the author and for 50 years after his or her death.

Copyright subsists in Canada in every original literary, dramatic, musical and artistic work, if:

  • •     The author was, at the date of the making of the work, a Canadian citizen or resident of Canada, a citizen or subject of a foreign country that has adhered to the Berne Convention or universal copyright convention, Rome convention or a country that is a WTO member; or

  • •     In the case of a published work, the work was first published in a Berne Convention country (see above conventions) in such a quantity as to satisfy the reasonable demands of the public having regard to the nature of the work; in general, “publication” occurs by making copies available to the public.

The Minister of Industry Canada (formerly Consumer and Corporate Affairs) may extend copyright protection to nationals of other foreign countries. The Universal Copyright Convention provides copyright in Canada to nationals of the US and of other contracting countries. Nationals of certain countries do not have copyright protection in Canada pursuant to any of the foregoing.

Computer software is considered a literary work and hence amenable to full copyright protection in Canada.

The relationship between copyright and industrial design in Canada is complex. Advice should be sought before relying on the assumption that copyright subsists in a work, where such work is applied to an article manufactured by hand, tool or machine.

Rights conferred by registration

Although registration is not a prerequisite to protection, it is deemed to give a potential infringe reasonable grounds for suspecting that copyright subsists in the material. This is important to a copyright owner because if it can be shown that an infringer was not aware (or did not have reasonable grounds for suspecting the subsistence) of the copyright, the owner can only obtain an injunction and damages may not be recoverable.

Remedies

An owner of copyright can bring an action for infringement against any person who, without the consent of the owner, does anything that only the owner of the copyright has the statutory right to do. In general, infringement involves copying the whole or a substantial part of a copyrighted work. Copyright is also infringed by any person who sells, leases, distributes, exhibits by way of trade, or imports for sale or hire into Canada, any work that to his or her knowledge infringes copyright, or would infringe copyright if it had been made in Canada. Remedies to which the owner of a copyright may be entitled for infringement of the copyright include an injunction, an order for the detention of imported infringing copies, damages, accounting for profits, recovery of infringing copies and costs.

Marking

Although marking is not required in Canada, it is advisable to mark a protected work with the © symbol or the word "copyright", followed by year of first publication and the name of the copyright owner.

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