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Copyright Primer (And Some History)

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The oldest known representational artwork might be a cluster of square-snouted pigs peering out in feint chipping ochre from the wet contours of a limestone cave wall somewhere deep in the rain forests of Indonesia. The unique find was reported in early 2021 in the journal Science Advances with an age calculated at an astonishing 45,000 years old. Still other non-representational cave markings have been discovered in Spain and South Africa that researchers believe could be up to 73,000 years old

73,000 years ago, Earth was well into a fresh ice age, and one can imagine that living conditions at the time were not exactly comfortable for the hominids scattered over the slopes of Europe and Asia. Yet even then these people, our distant relatives, were compelled to make art.

We can speculate about why early humans started painting on cave walls. Theories range from magical incantations to proto-linguistic experiments. But in truth we may never really know. It must have been a challenge to gather materials, mix pigments, prepare the tools and the stone, set a fire to illuminate the working surface, then toil for some hours in the smoke and gloom, twisting awkwardly to apply the pigment into a carefully considered image of a hog or auroch. So why bother? At the end of it perhaps there was prestige or power with the local community. Or perhaps it just felt good—an act of raw self-actualization—and the artist’s compatriots didn’t mind spending valuable resources on a paint job in the dark.

Whatever the reason, the practice emerged independently from a great many unrelated communities around the world (there are currently approximately 400 known sites boasting ancient cave art). Like language itself, art seems to have emerged from our DNA, expressing the deepest aspirational attention of our species.

Indeed, here at the guiding edge of the Holocene our understanding of art has expanded considerably along with its integration into our lives. In fact, art’s expansion has been so successful as to blur its relationship with almost all other aspects of modern existence. Art is no longer just colourful smudges on stone walls – it expresses in countless ways: language (and writing), sculpture, design, music, cuisine, architecture, photography, dance, acting and myriad other enterprises that coalesce into the textures of our lives. 

In fact, I would suggest that the arts (or specifically market outputs relying somewhere in their production chains on the creative arts) have become the world’s dominant and most prestigious economic drivers. 

The law has, of course, taken note, albeit slowly. Our society would wait until 1710, well after invention of the first printing presses, to see passage of the British Statute of Anne (full title “An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned.” This was significant because it took printing authority away from publishers and gave it to authors, effectively creating the type of public copyright grant we see today. Over the next 3 centuries other jurisdictions, including the United States and Canada, would adopt and evolve their copyright regimes, all largely based on a simple premise: creative work is important to society and in order to encourage its production society must reward creators. The reward: a monopoly on copying the work so created.

In Canada, that reward is called ‘copyright’ and it is governed by the Copyright Act (R.S.C., 1985, c. C-42) (the “Act”). The Act flowed from the Berne Convention for the Protection of Literary and Artistic Works (1886) to which Canada (along with more than 170 other countries) is a signatory. Despite the apparent altruism of its motivating premise, the Act does more than just reward creators for their efforts. It also recognizes competing interests in modern Canadian society relating to the fruits of those efforts (i.e. between creators and users) and tries to strike a balance between them. Copyright does not apply to all creative works, but only to certain enumerated types: literary, dramatic, musical and artistic works (‘artistic works’ being paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works). 

There are other legal heads of modern intellectual property rights as well: trademarks, patents, industrial designs, and trade secrets. But to my mind, copyrights are more relevant to our culture’s grassroots. After all, only a proportionally small number of us will create useful inventions (for patent protection) or catchy marketing terms for products or services in the marketplace (for trademark protection) or distinctive eye-catching physical product features (for industrial design protection). In contrast, we all write email messages, snap photos with our smart phones, post to social media platforms, and occasionally doodle on a blank page (or screen corner). Many of us enjoy hobbies such as painting, photography, video editing, sculpture, crafts, creative writing, blog-writing, or playing and recording music. Virtually all online activities and interactions will involve these activities, all of which may be subject to copyright laws. So those laws will likely touch most of us whether we know it or not. 

Certainly, for most small businesses this is particularly important, as copyright issues, while relatively easy to manage, can also present some of the most abundant dangers—since infringement (intentional or inadvertent) can carry hefty financial penalties.

Let’s consider some of the key traits of copyrights in Canada. 

Nature of Rights and Remedies

20 years ago, the Supreme Court of Canada rendered its decision in the case of Théberge v. Galerie d’Art du Petit Champlain inc. [2002] 2 S.C.J. No. 32.  That was an interesting case – dealing with an artist who had authorized a publisher to make prints of some of his paintings. The publisher sold a print to local art gallery, which in turn extracted the ink from the print and placed it on canvas, transferring the printed image from its paper backing to a new canvas one. Mr. Theberge, the artist, sued the gallery for infringement on the basis that he did not authorize the transfer.

Ultimately, the Court held that transferring the image in this way did not create any new copies of the work since after the process the original paper was completely blank. Further, the gallery was within its rights as the purchaser of the print to remount it provided the remounting did not materially alter the image itself (giving rise to a claim of infringing the artists ‘moral rights’). As such, the gallery did not infringe any of Theberge’s rights and was entitled to transfer the image to canvas.

So-called ‘moral rights’ are established under section 14.1 of the Act, which says:

14.1 (1) The author of a work has, subject to section 28.2, the right to the integrity of the work and. . . the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.

Section 28.2 of the Act establishes that infringement of moral rights will occur only if the work in question is distorted, mutilated, otherwise modified, or used in association with a product, service, cause or institution not otherwise approved by the artist.

In short, moral rights allow artists to maintain the integrity of their creative vision and work, and also elevate the value of the artist’s name by ensuring continued association in the public mind with the work. It is important to note that moral rights cannot be assigned and can only be waived in writing by an author.

The Théberge case articulated 2 critical tenets of Canadian copyright law, the second (relating to moral rights) flowing from the first:

  1. Copyright law in Canada is entirely “a creature of statute and the rights and remedies [the Act] provides are exhaustive.” This means that courts (and by extension litigants) cannot add categories of protected works or make up new remedies for copyright infringement; and
  2. Moral rights will not support every possible grievance creators may have about the use of their works. The Act specifies that moral rights will only be infringed if a work is modified or used in contravention of section 28.

The combined result is that Canadian copyright laws are relatively dependable, simple to determine, and consistently applied. Although the caselaw is helpful in understanding nuances of copyright laws, anyone can go right to the text of the Act and read the current state of the law. The language and structure of the Act are not overly complicated and even non-lawyers can still understand its basic principles.

Subject Matter – What is Protected?

Section 5 of the Act establishes, as noted above, that copyrights subsist in “every original literary, dramatic, musical and artistic work. . .” ‘Artistic work’ includes “paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works.”

Notice how all enumerated subjects of copyrights are concrete things, and not generalized concepts or ideas. Also, the requirement of originality in supporting a copyright claim is critical to its success. Such ideas were explored by the Supreme Court of Canada in the case of The Law Society of Upper Canada v. CCH Canadian Limited [2004] S.C.J. No. 12. In that case Chief Justice McLachlin (as she was then) cited an older decision of the Exchequer Court of Canada (Moreau v St Vincent, [1950] ExCR 198, [1950]), noting:

It is, I think, an elementary principle of copyright law that an author has no copyright in ideas but only in his [sic] expression of them. The law of copyright does not give him any monopoly in the use of the ideas with which he deals or any property in them, even if they are original. His copyright is confined to the literary work in which he has expressed them. The ideas are public property, the literary work is his own.

From there the Court generalized that “It flows from the fact that copyright only protects the expression of ideas that a work must also be in a fixed material form to attract copyright protection.”

The Court also analyzed the meaning of the word ‘original’ in the context of the Act and determined:

For a work to be “original” within the meaning of the Copyright Act, it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment.

The exercise of skill and judgment, the Court concluded, must involve at least some intellectual effort:

The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. For example, any skill and judgment that might be involved in simply changing the font of a work to produce “another” work would be too trivial to merit copyright protection as an “original” work.

Under section 3 of the Act, “copyright” is “the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever. . .” It also includes the right to perform the work, to control translations, to convert it into other artforms (i.e. adapt a novel into a play or film), to broadcast exhibit the work, to transfer ownership of the work, and, in the case of computer software, to rent that software. 

Ownership in copyrights is addressed in section 13 of the Act. Generally, an author (i.e. creator) of a work will be the first owner of the copyright in that work. An exception exists under subsection 13(3) for works created in the course of performing a ‘contract of service’, in which case the copyright is owned by the employer. I have encountered some confusion about what exactly a ‘contract of service’ is, but courts have held that section 13(3) “generally only applies if the author is an employee and not a freelancer or independent contractor” (Keatley Surveying Ltd v Teranet Inc, [2019] SCJ No 43).

A copyright owner may freely transfer or licence the copyright, provided that “no assignment or grant is valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by the owner’s duly authorized agent.” So beware of oral agreements purporting to assign copyrights, as they will be invalid.

Collaborations

Collaborating on an artistic project can be a wonderful and rewarding experience. But care needs to be taken to ensure all collaborators have agreed in writing on how to manage the work once completed. Since all collaborators who contribute tangible and original portions to the project may have copyrights in those portions, the result can be conflicting rights in the work—essentially giving any collaborator the legal power to veto decisions on how to share it. If positions polarize it can completely scuttle the market potential of a project.

Duration

Generally, copyrights will last for the lifetime of the author, the remainder of the calendar year in which the author dies and a period of 50 years following the end of that calendar year. Sound recordings get special treatment under section 23 of the Act and their copyrights (in the case of recordings published before expiration of their copyrights) can survive for up to 100 years after the calendar year in which they were recorded. Once copyrights expire the works fall into the public domain and can be freely used by anyone.

Exceptions

As noted above, Canadian copyright law tries to strike a balance between the interests of creators and users. In favour of creators, we have established a general commercial monopoly in their works. In favour of users, on the other hand, the legislation has carved out exceptions to that general monopoly. The exceptions are all explicitly laid out in sections 29 to 32 of the Act (also Part VIII which adds private copying of music). While a detailed analysis of copyright exceptions is outside the scope of this post (and a subject for a future post), here we can at least note the existence of those exceptions. It is important to understand that exceptions under the Act are not necessarily defences to allegations of copyright infringement. Rather, anyone who does anything listed in the Act as an exception does not infringe copyright. As a result, in each of those cases there is no offence to defend against. 

The main exceptions (this list is not exhaustive) to Canadian copyrights are: fair dealing (for research, private study, education, parody or satire, or for criticism, review or news reporting); non-commercial user-generated content; reproduction for private purposes; reproduction for later listening or viewing; use by educational institutions for instruction, examination, performances and commentary; reproduction by libraries, archives, and museums for maintaining their collections; and private copying of music. 

Underpinning the exceptions is the presumption that an approved use of copyrighted material must be a) consistent with society’s broader public-interest goals, such as education and vigorous debate, and b) undertaken without a view to monetary profit. As such, they rely on some less-than-precise criteria such as ‘reasonableness’ when characterizing permitted activities. In a future post I’ll explore some ways in which courts have resolved some of the ambiguities surrounding the copyright exceptions.

Closing

While our Leonardo da Limestone of 45,000 years ago never had the advantage of either copyright protection or the financial markets that make such protection meaningful, you, dear reader, are in a very different position thanks to the existence of copyright laws. You could one-up the illustrious da Limestone by going to one of those stone-age abodes, observing the reddish smudges on the wall, and taking out your smartphone. Snap the shot: so long as your photograph of the ancient rock paintings shows an original perspective you will automatically collect rights that eluded our cave artists. You will possess a copyright that they never had (at least in your photo). 

It is easy to see how in this digital age copyright follows us everywhere. It sometimes also seems that while copyright is a creature of statute, in these still early days of the 21st century we have also become creatures of copyright.

About the Author

I provide sophisticated operational guidance to businesses, and assists with strategies, contracts, workplace policies, securities issuances and intellectual property protection.

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