Authorship and ownership in copyright law in Canada is an important and complex topic which lies at the nexus between Canada's Copyright Act,[1] an important body of case law, and a number of compelling policy motives.
"[2] The courts have issued a number of decisions which provide some definition to the concept of who is an author according to Canada's Copyright Act.
Although the column when published holds Donoghue out to be the author, the court decided that all of the writing was done by a newspaper staff member.
In summary, there is case law which provides that an author in the meaning of section 13(1) of Canada's Copyright Act must fix the work into a semi permanent form, but cannot be a mere amanuensis and must provide the originality and the skill and judgement of that expression.
The elimination of section 13(2) provides an opportunity to apply an economic analysis to the allocation of the initial copyright.
The corollary of this theorem is that when transaction costs are not very low, it is important that the first allocation of the copyright be to the person who can make the most productive use of it.
Otherwise, the person who knows how to put a resource to use in the most productive way will probably be deterred by the high transaction costs from purchasing that right.
Each of these requests would create a transaction cost which would decrease the efficiency of exchange and possibly make it more difficult for the person who places the greatest value on the photos to control the copyright.
The provision states that in the absence of any agreement to the contrary, journalists would retain a "right to restrain the publication of the work, otherwise than as part of a newspaper, magazine, or similar periodical.
Dolmage v. Erskine provides a succinct account of its source: "Academic exception is an implied 'agreement to the contrary' within the meaning of s. 13(3) of the Act.
While this appears to be the custom at the college/university level, whether it applies to high school or other education settings is unsettled in Canadian law.
Many of those questions relate to the different types of transfers which are contemplated by the act and exactly what kind and what extent of intellectual property is conveyed by each of them.
A sole license is an ordinary licence which is granted to the licensee along with a contractual promise not to provide a similar permission to anyone else.
"[19] According to the dissent, it would rob section s.2.7 of effect and meaning if an exclusive licensee were to be held to have no right of action as against the copyright owner, because in that case the exclusive licensee would have no way to give effect to his right to exclude all others including the copyright owner.
[21] Professor Ariel Katz has suggested that a more simple and elegant solution to this problem would be to focus on the nature of the permission which gave owners of the copyright in the compilation access to the constituent works in the first place.
In Robertson v. Thomson Corp., the Supreme Court of Canada issued an opinion in relation to these questions.
It went to the Supreme Court of Canada where a trial was held to determine the facts surrounding what if any was the contractual agreement between the newspaper and the freelance journalists in relation to the articles in question.
This outcome flowed from two key findings which are critical in applying the above reason to the facts in this case.
Justice Abella's statement in paragraphs 82 and 83 also raises questions because she justifies the grant of positive rights to reproduce compilations based on the reason that the "ability to produce a collective work in the first place depends on the individual authors' authorization to use the materials that form the compilation.
"[24] In other words, Justice Abella says that it is okay to allow the creators of compilations to reproduce the constituent works that make up the compilations because they probably already have permission to do so from the owners of the copyrights in the constituent works; she is enlisting contract law in support of the grant of a copyright.
Even though the reasoning underlying the conclusion in Robertson seems to contradict section 2.1(2) of the Copyright Act, it is possible to justify the outcome on a policy basis.
The motivation to ensure that creators of compilations need not obtain permission from each and every copyright holder of the original constituent works is provided by the Tragedy of the anticommons.
Justice Abella indicates that her judgement contemplates the tragedy of the anticommons when at paragraph 71 she cites the "aftermath of the litigation in New York Times Co. v. Tasini, 533 U.S. 483 (2001).
"[25] In Tasini, the facts were very similar to those in Robertson and freelance authors got a judgement to prevent The New York Times from posting their articles online.
So, the default rule in s. 13(1) works well looking forward, but it creates a huge amount of transaction costs when looking backwards.
For this reason, the corollary of the Coase theorem that the initial allocation of rights is important when transaction costs are high might suggest that Justice Abella's conclusion in Robertson is far more efficient then would be a straightforward application of section 2.1(2) of the Copyright Act.