Canadian photographers are just as concerned as photographers of any other country about how to protect their copyright.
This article will discuss copyright considerations for Canadian photographers and specifically why you might formally register your copyright in an image under Canadian law.
Copyright under Canadian law is detailed in the Copyright Act (R.S.C., 1985, c. C-42). Copyright protects photographic images under the category of “artistic” works (section 2). Under Canadian copyright law, “copyright” means the “sole right to produce or reproduce the work,” or any substantial part in any material form whatever (s.3). It includes the sole right to do the following, or to authorize others to do the following with works you hold copyright :
- to produce, reproduce, perform or publish any translation of the work, (s.3(a))
- in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work, (s.3(e))
- in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication, (s.3(f))
- to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan, (s.3(g)
- in the case of a work that is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the copyright owner, (s.3(j))
Copyright exists automatically when an original work or other subject-matter is created and is owned by the creator of the work, provided the conditions set out in the Copyright Act have been met. These include that the creator is a Canadian citizen, resident in Canada, or in a treaty country (s.5(1)(a)). What this means is that you do not need to register the copyright in the work in order to be protected legally. However, “a certificate of registration of copyright” is evidence that copyright exists and that the person registered is the owner of the copyright. We’ll explain later why a certificate may be helpful.
- Copyright can be assigned or a license granted by the copyright owner to allow for some of the activities mentioned in s.3, like reproducing, editing/altering, selling or publishing. These assignments can be made in whole or part and relate to a specific geographic territory, medium, or sector for a period of time or the whole term of the copyright (s.13(4)). Any assignment or license must be in writing signed by the owner.
Images created in the course of employment
For images created in the course of employment (including contract work), the employer (in the absence of any agreement stating otherwise) is the first owner of copyright (s.13 (3)). Photographers should consider negotiating for copyright to remain with them as creator. An exception to this default is where the image is a contribution to a newspaper, magazine or similar periodical, the creator is able to prevent further publication of the work other than as part of another newspaper, magazine or similar periodical.
In addition to the rights above which can be assigned or a license sold, Canadian law provides for moral rights. moral rights are described in s.14.1(1) and s.17.1(1). Moral rights are those which give the author of a work the right to the integrity of the work and, in connection with an act mentioned in section 3 (which are listed above), the right, where reasonable in the circumstances, to be associated with the work as its author by name (or under a pseudonym) and/or the right to remain anonymous if they so choose. If an infringer ignores your moral rights and omits your name or attributes your work to another photographer then this is copyright infringement s.28(1).
Unlike the rights usually thought of as copyright, as in s.3, moral rights are the right to be known as the author of a work, and they cannot be assigned – they can however be waived by the creator. It is important to note that an assignment of copyright in a work does not alone constitute a waiver of moral rights (s.14(3).
How long does copyright last?
Generally, for photographic images, copyright lasts for the life of the author, the remainder of the calendar year in which the author dies, and a period of fifty years following the end of that calendar year. (s.6)
How to register Copyright in Canada
While a copyright registration is not a requirement to quarantee acknowledgement of copyright ownership, as we mentioned earlier, “a certificate of registration of copyright” is evidence that copyright exists and that the person registered is the owner of the copyright. This evidence can make an action for copyright infringement less onerous to prove where there is evidence of the registration that predates an infringement. Also, if an infringer claims that they were unaware of copyright subsisting in a work (s.39(1)), and the court finds this to be true, then the photographer would only be able to be granted an injunction (and no additional remedy) to prevent further use. However, if the copyright has been registered prior to the infringement then s.39(2) says that a defendant cannot ask the court for s.39(1). Basically, registering copyright opens up significantly more options for a court to award damages.
The application which must name the author of a work, can be completed and submitted with the applicable fee(s) (approx. $50) to the Canadian Intellectual Property Office. It is cheaper to file the registration online than to submit by mail or fax. An application can be made at any time while the copyright is in effect – so it is important to note that in the case of a photograph created prior to November 7, 2012, the author can be an individual or some other legal entity.
You can also file to register an assignment or license. This may be helpful where you want to make clear the licensing relationship and to further show proactive measures to protect and uphold your rights to the images.
Do I need to mark my work with the copyright symbol?
Whether you obtain a certificate of registration or not, it is not mandatory to mark you work with the copyright symbol under Canadian law in order to claim copyright ownership. If you do choose to mark your work – you do not need to have registered your work to use the mark — you should include the copyright symbol ©, the name of the copyright owner, and the year of first publication. Some photographers do find that it reminds would-be infringers that you work is protected by copyright.
Whether an intellectual property infringement is of the copyrights or moral rights, the holder of those rights can sue for that infringement. There are exceptions and defences to claims of infringement which include: fair use ((s.28 & s.29) parody, satire, educational use (s.29.4(1)), and reproduction for private purposes (s.22.29), restoration or preservation (s.28.2)).
If a person (including a company) infringes copyright, then they are liable to pay damages to the copyright owner based on the loss they have suffered due to the infringement and, in addition to those damages, such part of the profits that the infringer has made from the infringement (s.35(1)). It might be helpful to note that at any time before final judgment in a law suit, a copyright holder may elect for an award of statutory damages from the infringer(s) (s.38.1(1)) of between $500 and $20,000 for commercial uses, and $100 and $5000 for non-commercial uses – these need to be confirmed by the court. These statutory damages may be more difficult to achieve if there is any question of copyright ownership – hence why copyright registration can prove to be beneficial.
This article sought to provide brief overview of Canadian copyright law and how a photographer can apply for copyright registration. In some areas we have barely scratched the surface. For specific circumstances, it is always best to consult an attorney familiar with the law in your province.
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