Education

Copyright is automatically acquired from the moment of creation of a work, provided that the work meets these three criteria: 1) the work must be original; 2) it must be fixed in a somewhat permanent material form; and 3) the author must meet the qualified person requirements set out in the Copyright Act. A qualified person includes Canadian citizens and persons ordinarily resident in Canada.

“Original” means that: 1) the work can’t be a substantial copy of another copyright protected work; and 2) the work must have been created by exercising “skill and judgement”, meaning it can’t be the product of a purely mindless mechanical exercise.

The threshold test for determining whether there is an original work for copyright purposes is relatively low. The work has to be “non-trivial”, meaning it must meet a minimal level of creativity. For example, you can’t change two notes in a pre-existing song and claim it is a new and original work. However, many musical compositions follow a similar popular structure and rhythmic pattern and western music is bound by the limits of the 12 notes of the chromatic scale but the threshold can still be met- musical works needn’t be novel to acquire copyright protection.

Yes, you have. It is not required that you make an audio recording of a musical work to acquire copyright to it. However the fixation requirement must be met. An audio recording serves as evidence of existence of the song and does satisfy the fixation requirement. Song lyrics should be fixed in writing or recorded. The musical composition could be musically notated or embodied in an audio recording.  Either of the foregoing would satisfy the fixation requirement regarding the musical composition.

As a general rule, copyright is first acquired by the author of a work. However, there are exceptions to this general rule. For example, if an author creates a work while executing the duties of his or her employment, the employer owns the copyright, unless there is an agreement to the contrary.

Once acquired, the author then has the ability to transfer the copyright, in whole or in part, to a third party, typically by an assignment.  Copyright can then acquired by a third party under such assignment which is a contract.

Copyright can be acquired by individuals, partnerships or corporations under many contractual situations. For example, under music publishing agreements, under commission agreements for film and television music to name a few.

Put simply, patents protect inventions and copyright protects the form of expression of a work. Patents are granted by the Canadian Patent Office and are only granted to new, useful, and non-obvious inventions. Copyright is granted to an original creative work regardless of whether it is new, novel, or will contribute or advance society. Patents are most typically associated with innovations in pharmaceuticals and engineering.

There are two main types of rights that are acquired: copyrights and moral rights.

Copyrights are in essence, the rights from which economic value is derived from a work.  These rights include but are not limited to, the right to produce or reproduce the work in any material form.

Moral rights are personal to and acquired by the author of a work and include the right to the integrity of the work.  The integrity right includes the right to prevent distortion, mutilation, or other modification of a work, or the use of a work in association with a product, service, cause or institution to the prejudice of the honour or reputation of the author. Moral rights also include the paternity right,which is the right to be credited as the author of the work under the author’s legal name, pseudonym and includes the right to remain anonymous.

Copyright does not protect ideas. Copyright protects the form of expression of a work. Neither does copyright law grant the copyright holder exclusivity over a subject-matter or an idea, opinion or a plot. For instance, if Shakespeare were alive today and wrote Romeo and Juliet, the prose would be subject to copyright, but the concept of star-crossed lovers would not be protected by copyright.

Having said that, copyright is not limited to exact verbatim copying. When too much of another’s work is copied, the line that divides ideas and expression may be crossed. There is no black and white answer as to where that line is drawn. Each situation must be dealt with on a case-by-case basis. What is key to remember is that another song may be similar to yours, but unless the author has had access to your work and has copied a substantial part of your work, there is no direct copyright infringement. Remember, copyright protects against unauthorized use of a work, it doesn’t provide a stranglehold over ideas.

In the absence of permission, typically in the form of a licence, yes. The Canadian Musical Reproduction Rights Agency (CMRRA) is the leading intermediary that acts between music copyright holders (aka music publishers) and those interested in obtaining permission to record a cover of your song.

The permission required to record a song is called a mechanical licence. If you are a member, the CMRRA will license your songs on your behalf. See the CMRRA website for more information on song licensing: www.cmrra.ca. If you are concerned your copyright has been infringed, seek legal advice from a qualified source.

I own the copyright to my song and I heard my song in a movie, but I never granted the producers permission to use my song. Has my copyright been infringed?

In the absence of permission, yes. A production must apply and obtain permission in the form of a synchronization license for any such use. Permissions for use of songs in television and motion pictures may be also administered by the CMRRA or the copyright holder directly. See the CMRRA website www.cmrra.ca for more information:. If you are concerned your copyright has been infringed, seek legal advice from a qualified source.

If you suspect that someone has infringed your copyright, seek skilled legal advice immediately to determine the best course of action.

In Canada, the general rule applies: copyright lasts for the duration of the author’s life plus 70 years after their death. After the death of the author, copyright devolves to the author’s estate, unless the author has bequeathed the copyright to someone else in their will. In the case of joint authorship, where there is more than one writer of a composition, copyright subsists for the life of the last surviving author plus 70 years after their death.

Copyright in a performer’s performance in a sound recording and in the sound recording itself lasts for the remainder of the calendar year during which the performer’s performance and sound recording respectively first occurred, plus 50 years thereafter. However, if published before the copyright expires, copyright continues until the earlier of 70 years from the remainder of the calendar year during which publication of the performer’s performance or sound recording respectively occurred and the end of 100 years from the remainder of the calendar year during which the first fixation of the performer’s performance or sound recording respectively occurs.

The copyright owner has the first right of distribution, that is, the authority to decide how and when to distribute the work, or whether to distribute it at all. Once the work has been put on the market, however, the author loses the ability to control whether or not the physical embodiment of the work is subsequently resold or transferred.

Tariff rates are negotiated between SOCAN and various users of music and are set by the Copyright Board of Canada.

Public performance royalties are collected for and paid to music creators and publishers by SOCAN, Canada’s only performing rights society. For more information about these royalties see the SOCAN website.

Public performances of a song are subject to SOCAN’s tariff of fees and are paid for by the user of the song, such as, a television station or radio broadcaster. What constitutes a “public performance” is very expansive and includes everything from radio airplay to background music at your dentist’s office. See the SOCAN website for more information.

Further information on copyright laws in Canada can be accessed at the Canadian Intellectual Property Office’s website.