This FAQ reflects 2012 amendments to the Copyright Act to fulfill Canada’s obligations under international copyright treaties. See www.cb-cba.gc.ca/act-loi/index-e.html for a summary of the changes.
Also see Copyright General Rules
What is copyright?
Copyright law consists of the Copyright Act, its regulations, and relevant decisions of the courts.
Copyright law balances two competing goals. On the one hand, it encourages the creation, dissemination and use of works; on the other, it allows creators and other rights holders to be fairly rewarded for the uses of their works.
It protects rights of creators and other rights holders by providing exclusive rights to do certain things with their works, and by specifying penalties for infringement of those rights.
It encourages dissemination and use of works by providing certain users’ rights, and by limiting how long copyright lasts.
Does Canadian copyright law apply everywhere?
If a work is being reproduced, published, communicated, exhibited, etc. in Canada, Canadian law applies, regardless of the nationality or residence of the creator of the work. However, caution must be taken when a work is being disseminated on the Internet. Although the item may be posted on a server in Canada, it can be downloaded in another country where the copyright laws may be different.
How does copyright apply on the Internet?
Copyright law applies to digital formats and the Internet just as it does to analogue formats. Although much of the Copyright Act was written before anyone thought of the Internet, the Act is sufficiently flexible to accommodate new technologies. Although we are not entirely certain how copyright applies in every situation in the digital environment, a growing body of case law provides precedents that clarify the application of copyright to digital media.
If my institution owns the material, don’t we own the copyright too?
No. Ownership of the physical object is different from the ownership of the copyright in the object. Owning the physical object does not entitle you to copy it, publish it, or post it on the Internet without the permission of the copyright owner.
What is covered by copyright?
Copyright protects a wide range of materials, including books, films, diaries, sheet music, letters, sound recordings, photos, maps, and a host of other items found in the holdings of archives, libraries, historical societies, museums and other cultural heritage and community organizations. The Copyright Act divides protected material into two broad categories: “works” and “other subject matter” (see definitions below). Different copyright rules apply to each category.
What are ‘works’?
Copyright protects all original (i.e., not copied from someone else) literary, dramatic, musical, and artistic works.
Literary works include books, letters, newspapers, diaries, poems, and other works consisting mainly of text.
Artistic works include photographs, maps, plans, paintings, sketches, drawings, sculpture, and architectural works
Dramatic works include plays, scripts, screenplays, films, and videos.
Musical works include sheet music, and other works of musical composition, with or without words.
What is ‘other subject matter’?
Copyright also applies to three categories of “other subject matter”:
Sound recordings are fixations of sounds, including songs, speeches, ceremonies, oral history interviews, street noises, or birdsong.
Performers’ performances are performances by actors, singers, musicians, or dancers.
Communication signals are the radio or television signals that are broadcast.
Copyright in these categories is often very complicated because a number of copyright interests are involved. For example, a recording of someone singing a song will contain the song (a musical work) and the performances of the singer and musicians. Permissions must be obtained for all components of the sound recording as well as for the sound recording itself.
What about compilations like scrapbooks, newspapers, and multi-media works?
“Compilations” Works consisting of several distinct works, e.g., a newspaper or a scrapbook, are known as compilations. Compilations have two (or more) levels of copyright. The entire newspaper or scrapbook is protected by copyright. Each of the works that makes up the newspaper (e.g., articles, photos, advertisements) or scrapbook (photos, letters, poems, clippings) is also protected by copyright (unless the copyright in it has expired).
Who owns the copyright in ‘works’?
Generally speaking, the author or creator of a work is the first owner of the copyright, but the copyright owner may also be the author’s employer (if the work was made in the course of employment). Special rules determine the ownership of copyright in photos. Copyright can also change hands: the author can agree to transfer the copyright in a work to someone else.
Who owns the copyright in ‘other subject matter’?
The maker (the person or organization that made the arrangements for the first fixation of the sounds) is the first owner of the copyright in a sound recording.
The performer is the first owner of the copyright in a performer’s performance.
The broadcaster is the first owner of the copyright in a communication signal.
What are the rights of the copyright owner?
The copyright owner has the exclusive right to do certain things with a work or other subject matter. The rights that are most relevant to heritage institutions are:
- the right to copy a work or other subject matter (by digitizing, microfilming, photocopying, or copying by hand)
- the right to communicate a work or other subject matter to the public (by radio or TV broadcasting or on the Internet)
- the right to publish a work or a sound recording for the first time (publishing means making copies of a work available to the public)
- the right to exhibit an artistic work (other than a map or plan) in public
- the right to translate a work into another language
- the right to authorize others to do any of these things
How long does the copyright in ‘works’ last?
Generally speaking, copyright protection lasts for the life of the author plus 50 years; however, different rules apply to certain types of material. Consult the sources below for details Consult the sources below for details.
How long does the copyright in ‘other subject matter’ last?
- Sound recordings: 50 years from the first fixation of the sounds.
- Performer’s performances: 50 years from the fixation of the performance.
- Communication signals: 50 years from the fixation of the broadcast.
Items in these categories often contain underlying works whose copyright may expire later than the copyright in “other subject matter.” For example, a recording of someone singing a song will contain the song (a musical work) and the performances of the singer and musicians. While the copyright may have expired in the sound recording and the performances, copyright may still exist in the song.
What are moral rights?
Moral rights protect the reputation of the author (or creator) and the integrity of the work. Moral rights always belong to the author. Unless the author has waived his or her moral rights, moral rights include the right to:
- prevent any modification of a work which damages the author’s honour or reputation (You need to consider moral rights when manipulating digital images).
- prevent the use of the work in association with a product, cause, or institution in a way that damages the author’s honour or reputation
- require that the author’s name is associated with the work as its creator.
Moral rights last for the same length of time as the copyright.
What happens when the copyright expires?
Once the copyright protection has expired, the work enters the public domain, and can be used by anyone without the rights holder’s permission. Copyright cannot be renewed.
What can I put online?
- Items in which your institution owns the copyright (either because it was created by the employees in your institution, or because the copyright was granted to your institution by the copyright owner)
- Items in which the copyright has expired. Bear in mind, however, that the copyright in the item may have expired in Canada, but the item may still be protected by copyright in countries where the term of copyright protection is longer. For example, copyright in Canada expires 50 years after the death of the author but in the US, Europe, and Australia, copyright expires 70 years after the author’s death. If content from your website is being downloaded and used in the US, US law applies, and the item may still be protected.
- Items for which you have the permission of the rights holder(s)
Whose responsibility is it to obtain copyright clearance for materials made accessible using my organization’s VITA site hosted by OurDigitalWorld?
Your institution is responsible for obtaining any necessary permissions from rights holders.
Copyright seems awfully complicated. How do I sort out the copyright in a document we want to put online?
The following table outlines a systematic way of analyzing a copyright situation.
Step 1: What category is it?
Rules for ownership and term of copyright can be different depending on the category.
Both a multi-media item and the individual items that are part of it may be protected by copyright.
Step 2: Who owns the copyright?
Term rules (step 3) often cannot be determined until you identify the first copyright owner.
The copyright may have changed hands.
Knowing the copyright owner tells you where to start the permission process (if necessary)
Step 3: How long does the copyright last?
If the copyright has expired, you need go no further.
If the copyright has not expired, go to Step 4
Step 4: Who do I ask for permission?
Begin by identifying the current owner of the copyright (see step 2).
How do I get permission?
Determine who owns the copyright to the material you are using. Check the item itself for copyright information, or start with an Internet search of the creator’s name.
Contact the copyright owner, and describe the material you wish to use and how it will be used (e.g., published in a newsletter, or scanned into digital form and posted on a website).
Alternatively, contact a copyright collective society. Collective societies are organizations that administer rights on behalf of groups of rights holders. Each collective society has a specific mandate to administer particular rights in particular types of material. Check the Copyright Board website at http://www.cb-cda.gc.ca/societies-societes/index-e.html for a list of the Canadian collective societies and their mandates.
Be prepared for costs and/or conditions. Some rights holders may require payment of a fee. Others may require that statements identifying the rights holder(s) and the fact that permission was obtained be posted with the material.
Keep records. Retain your correspondence as evidence that you obtained permission, or that you made reasonable efforts to do so (if you cannot locate the rights holder(s) or they do not respond).
What do I do if I cannot locate the copyright owner?
Your organization should establish and document a consistent policy in this area. A key aspect of the policy is an assessment of the risk of using the work without the rights holder’s permission.
What will you do if the rights holder comes forward?
What demands might the rights holder make?
How will your institution deal with these possibilities?
What might be the consequences for your institution?
Depending on the answers to these questions, you may decide not to use the item, or (if possible) substitute another, or go ahead and use it. If you make your copyright information public, you may wish to include a disclaimer stating that your efforts to locate the copyright holder were unsuccessful).
Where can I get more detailed information?
Canadian Intellectual Property Office (CIPO)
CIPO administers Canada’s intellectual property. Their website http://cipo.gc.ca is a useful place to find general information about copyright.
Jean Dryden, Demystifying Copyright: A Researcher’s Guide to Copyright in Canadian Libraries and Archives 2nd. ed. (Ottawa: Canadian Library Association, 2013). Can be purchased at http://www.cla.ca.
Lesley Ellen Harris, Canadian Copyright Law, 4th ed. (Toronto: McGraw-Hill Ryerson, 2013).
Laura J. Murray and Samuel E. Trosow, Canadian Copyright: A Citizen’s Guide, 2nd ed. (Toronto: Between the Lines, 2013).
The linked chart outlines a systematic way of analyzing a copyright situation and provides the general rules for copyright in the following types of material:
Published Textual Material
Unpublished Textual Material
Maps and Plans