Wednesday, March 17, 2021

Copyrights in Canada – Process, Timeline, Costs, and the Upcoming Proposed Changes to the Copyright Act

Wednesday, March 17, 2021

Most people are familiar with patents and trademarks as the most common forms of intellectual property, however, copyrights and their importance as part of your overall portfolio of intellectual property assets are sometimes neglected. This article attempts to broadly cover the subject of copyrights in Canada in terms of process, timeline, costs, as well as the upcoming proposed changes to the Copyright Act.

What rights does a copyright holder have?

Copyright is defined by the Canadian Intellectual Property Office (CIPO) as an exclusive right to produce, reproduce, publish, or perform an original literary, artistic, dramatic, or musical work.

A common misconception is that copyright protects an idea. The truth is that copyright does not protect the idea itself but instead protects the expression of an idea. This expression needs to be “fixed” in a tangible medium (written or recorded) for you to be able to copyright it. For example, copyright gives you the right to control the expression of your original written or recorded speech. As a result, you can charge a fee for allowing another party to express themselves in the same way you expressed yourself in your copyrighted speech as well as your copyrighted literary, artistic, dramatic, and musical works.

How long do copyrights last?

Copyright in Canada currently exists for the author’s lifetime, the remainder of the calendar year in which the author dies, plus 50 years following that calendar year.

However, changes to these current time limits are coming. On February 11, 2021, the Canadian government announced that due to the Canada-United States-Mexico Agreement (CUSMA), Canada has agreed to extend, by the end of 2022, the protection period to a minimum of the author’s lifetime, the remainder of the calendar year in which the author died, plus 70 years following that calendar year.

Why register copyrights?

Copyright is automatic and protects an original work the moment the work is created. Therefore, copyright does not have to be registered for an author to have copyright rights.

However, registering copyright for your work can be very beneficial because going through the official registration process with the Canadian Intellectual Property Office (CIPO) results in a registration certificate. This registration certificate is an official Canadian government document that is proof that you have rights to your work’s expression and provides a date stamp. This registration certificate can be persuasive evidence when suing someone who is infringing your rights.

How long does it take to register a copyright?

Copyright registration can generally be obtained within a few weeks.

How much does it cost to register a copyright?

Copyright registration is relatively inexpensive. The full process from drafting the copyright application, ensuring that the work is categorized correctly, filing it, reviewing the issued certificate of registration, and sending it to the author, is approximately $400, including MBM professional fees and the required government fees.

What are the steps to register a copyright?

The first step is to draft and file a copyright application.

A crucial piece of information required at this step is the date and place of your work’s publication. It is critical to make sure that CIPO correctly records the date and place of publication if in the future you decide to litigate against an infringer and the infringer argues that their work predates your work.

The next step in the process is an examination of the application by CIPO. If the CIPO examiner determines that the application requires changes, amendments to the application will need to be filed to prevent rejection. Once all the objections are satisfied, the application will register, and the registration certificate will be issued.

What are the proposed amendments to the Canadian Copyright Act?

Two Private Member’s Bills C-272 and S-225, may result in changes to the Copyright Act.

Private Member's Bill, C-272 was introduced on February 22, 2021, to add section 41.121 to the Copyright Act to modify the treatment of technological protection measures (TPMs). TMPs reduce copyright infringement by controlling the use of a work. The Copyright Act provides stiff penalties including, imprisonment and/or fines up to $1,000,000 for circumventing TMPs. The proposed amendment can allow a person to circumvent "a technological protection measure that controls access to a computer program if the person does so for the sole purpose of diagnosing, maintaining or repairing a product in which the computer program is embedded". As a result, Bill C-272 will add an additional circumvention exception to the current circumvention exceptions allowed by the Copyright Act. The existing circumvention exceptions include exemptions for law enforcement and national security, reverse engineering for software compatibility, encryption research, verification if a TPM permits the collection or communication of personal information, security testing of computer systems, and accessibility for disabled persons.

Private members bill S-225 was introduced on February 17, 2021, to add a section to the Copyright Act to allow remuneration for journalistic works. This bill was introduced because news stories are easily shared using social media without paying a royalty to the copyright holder. As a result, news publisher’s advertising revenue has decreased significantly while at the same time, social media platforms that facilitate this sharing have significantly increased their advertising revenue. The amendment proposes to add, "[i]f a journalistic work ... is reproduced or published on a digital platform that is owned or controlled by a designated digital platform provider, the Canadian journalism organization that owns the copyright in that journalistic work is entitled to remuneration”.

This article broadly covered the process of copyrights as well as some of the upcoming suggested changes to the Copyright Act. If you have created an original literary, artistic, dramatic, or musical work and you have further questions and would like to understand your rights and file one or more copyrights, please feel free to contact MBM for a free consultation.

For more information please contact:

Daniel Lanfranconi, Associate Lawyer
T: 613.801.1056

This article is general information only and is not to be taken as legal or professional advice. This article does not create a solicitor-client relationship between you and MBM Intellectual Property Law LLP. If you would like more information about intellectual property, please feel free to reach out to MBM for a free consultation.


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