Copyright law of Canada

All powers to legislate copyright law are in the jurisdiction of the Parliament of Canada by virtue of section 91(23) of the Constitution Act, 1867.

[3][4] The 1841 Act only granted copyright in books, maps, charts, musical compositions, prints, cuts and engravings.

Any book published in London would therefore be protected by copyright law in the entire British Empire, including Canada.

[4] The 1842 Act had an immediate impact on Canada and became infamous because it effectively prohibited the importation and sale of reprints of any book under British copyright printed in other countries.

Previously Canada had mostly imported books from the United States, but it was now unlawful for Canadian merchants to engage in this trade.

[7] The 1841 and 1847 statutes were subject to minor revision in 1859 and the requirement for the works to be printed in Canada, buried in the text, was later noticed and denounced by the imperial British government.

[5] Upon Confederation, the British North America Act, 1867 granted the federal government power to legislate on matters such as copyright and patents.

[11] In order to encourage the local printing and publishing industry Canada made a number of diplomatic and legislative efforts to limit the effects of the 1842 Imperial act.

[15] The application of Imperial copyright was strengthened by the earlier decision of the House of Lords in Routledge v Low,[16] which declared that residence of an author, no matter how temporary, anywhere in the British dominions while his book was being published in the United Kingdom, was sufficient to secure it.

[17] There were other significant differences between the Canadian and Imperial régimes:[9] Under the UK's Copyright Act 1911, the Parliament of Canada was granted authority to either extend its application to Canada or to repeal (subject to the preservation of all legal rights existing at the time of such repeal) any or all enactments passed by the Imperial Parliament (including the Act of 1911) so far as operative within the Dominion.

[25] New technological developments and the emergence of computers, photocopiers and recording devices led to a recognition that copyright law needed to be updated.

[26] Its brief was "to enquire as to whether federal legislation relating in any way to patents of invention, industrial designs, copyright and trade-marks affords reasonable incentive to invention and research, to the development of literary and artistic talents, to creativeness, and to making available to the Canadian public scientific, technical, literary and artistic creations and other adaptations, applications and uses, in a manner and on terms adequately safeguarding the paramount public interest.

A levy was introduced on blank audio tapes used for private copying and exclusive book distributors were granted protection in Canada.

[31] After becoming a signatory country of World Intellectual Property Organization Internet Treaties in 1996, Canada implemented its terms in 2012 with the passage of the Copyright Modernization Act.

[33] During consideration of the bill, many groups publicly stated their opposition to its digital lock specifications,[34] arguing that such measures infringed on legitimate usage of copyright holding.

The Committee collected 192 briefs (written submissions) and heard testimony from 209 witnesses, concluding its consultation process in December 2018.

[41] The testimony of Canadian musician Bryan Adams given on September 18, 2018 as part of this consultation garnered significant media attention.

One of the rationales put forward by Professor Gervais was to permit a reasonable period for those assigned copyright to exploit the commercial interest in a work and recoup their investment, while at the same time incentivizing and supporting the creativity of artists by allowing them to regain control within their lifetime.

A fact sheet published by Innovation Science and Economic Development Canada summarized the key issues raised in the consultation and announced a 30% increase to funding to the Board to address significant time delays in tariff-setting.

[52] In addition the Berne Convention provides that extensions of terms will not have the effect of reviving previously expired copyrights.

[60] Canadian singer/songwriter Bryan Adams argues that extensions may increase profits to intermediaries such as major record labels, but do not benefit the actual creators of copyrighted works.

But it believes some of the problems can be mitigated by, among other things, requiring each work be formally registered in order to receive the 20 year extension.

[64] Copyright also extends to incomplete creations such as proposals, treatments and formats, and infringement can occur when subsequent audiovisual works use their elements without ever actually literally copying them.

[65] It is unclear whether the subjects in interviews have copyright in the words they utter (and thus be considered to be their authors), as the courts have not definitively ruled on the issues of originality and fixation in such cases.

[66] However, in Gould Estate v Stoddart Publishing Co Ltd, the Ontario Court of Appeal noted that "offhand comments that [the interviewee] knew could find their way into the public domain ... [were] not the kind of disclosure which the Copyright Act intended to protect.

In 2002, the Ontario Court of Appeal upheld a literal interpretation of the word "copy" and found that a software engineer's creation of a "similar" product from memory did not constitute infringement of his former employer's copyright.

Those favouring a broad interpretation of fair dealing argue there ought to be reasonable unauthorized reproduction of works because it facilitates creativity and free expression.

[71] The impact of the CCH analysis has been problematic, and many users have attempted to simplify the administration through the adoption of guidelines quantifying what amounts of a work may be acceptable.

Exceptions exist in situations when the circumvention is for the purposes of accessibility, encryption research, privacy and security testing, reverse engineering to achieve software compatibility (if it is not already possible to do so without breaching TPMs),[90] the creation of temporary recordings by broadcasters, and for law enforcement and national security purposes.

[91][92] The federal court adopted a wide interpretation of the anti-circumvention rules in the case of Nintendo of America v. Go Cyber Shopping, asserting that alongside their use for enabling the use of pirated copies of software for them, a retailer of modchips for video game consoles could not use the availability of homebrew software as a defence under the interoperability provision, because Nintendo offers official manner for developers to create games for their platforms, thus making it possible to achieve interoperability without breaching TPMs.