The copyright law of Canada governs the legally enforceable rights to creative and artistic works under the laws of Canada. Canada passed its first colonial copyright statute in 1832 but was subject to imperial copyright law established by Britain until 1921. Current copyright law was established by the Copyright Act of Canada which was first passed in 1921 and substantially amended in 1988, 1997, and 2012. 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.
History
Colonial copyright law It is unclear to what extent British copyright law, or imperial law, starting with the 1709 Statute of Anne, applied to its colonies (including Canada), but the House of Lords had ruled in 1774, in Donaldson v Beckett, that copyright was a creation of statute and could be limited in its duration. The first Canadian colonial copyright statute was the Copyright Act, 1832, passed by the Parliament of the Province of Lower Canada, granting copyright to residents of the province. The 1832 Act was short, and declared ambitions to encourage emergence of a literary and artistic nation and to encourage literature, bookshops and the local press. After the Provinces of Upper and Lower Canada (Ontario and Quebec) were reunified to form the Province of Canada, the 1832 Act was repealed and with minor changes enacted as the Copyright Act, 1841.
The 1841 Act only granted copyright in books, maps, charts, musical compositions, prints, cuts and engravings. Copyright was only awarded if it was registered and a copy of the work deposited in the office of the registrar of the province before publication. The author or creator was required to be resident in the province in order to obtain copyright under the Act, though the Act was unclear on whether the work needed to have been first published in the Province. The objective of the colonial copyright statutes was to encourage the printing of books in Canada, though this was not made explicit to avoid conflict with imperial copyright law, which was primarily designed to protect English publishers. Britain forcefully demanded guarantees that British and Irish subjects were eligible for protection under Canadian colonial copyright law in the same way residents of the Canadian colony were.
One year after Canada passed the 1841 act, the UK Parliament passed the Copyright Act 1842. The statute explicitly applied to "all Parts of the United Kingdom of Great Britain and Ireland, the Islands of Jersey and Guernsey, all Parts of the East and West India, and all the Colonies, Settlements, and Possessions of the Crown which now are or thereafter may be acquired". Any book published in London would therefore be protected by copyright law in the entire British Empire, including Canada. 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. Instead merchants were required to import books under British copyright from printers in Britain, though British market prices were unaffordable for most residents of Canada. As British publishers systematically refused to license books for printing to Canadian printers, the Canadian Government questioned the responsible self-government arrangement. In a provocative move Canada passed An Act to extend the Provincial Copyright Act to Persons Resident in the United Kingdom in 1847, granting British authors protection only if their works had been printed and published in the Province of Canada. 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.
Confederation Upon Confederation, the British North America Act, 1867 granted the federal government power to legislate on matters such as copyright and patents. In 1868 the Parliament of Canada passed the Copyright Act of 1868, which granted protection for "any person resident in Canada, or any person being a British subject, and resident in Great Britain or Ireland." It re-established the publication requirements of the 1847 statute, prompting demand from the British government that Canada should revise its laws so as to respect imperial copyright law. Under Imperial copyright London printers had a monopoly and attracted most authors from the colonies to first publish with them because imperial copyright law granted protection in all colonies. London printers refused Canadian printers the license to print books first published in London and authors had little incentive to first publish in Canada, as colonial copyright law only granted protection in Canada. The Canadian government sought to further strengthen the Canadian print industry with an 1872 bill that would have introduced a projected licensing scheme that allowed for a reprinting of books under foreign copyright in exchange for a fixed royalty. The British government opposed the bill and it never received royal assent.
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. In a compromise arrangement Canada passed the Copyright Act, 1875, which provided for a term of twenty-eight years, with an option to renew for a further fourteen years, for any "literary, scientific and artistic works or compositions" published initially or contemporaneously in Canada, and such protection was available to anyone domiciled in Canada or any other British possession, or a citizen of any foreign country having an international copyright treaty with the United Kingdom, but it was contingent on the work being printed and published (or reprinted and republished) in Canada.Copyright Act, 1875, ss. 35 By registering under the Canadian Act, British and foreign publishers gained exclusive access to the Canadian market by excluding American reprints.
In 1877, the Ontario Court of Appeal ruled that the Imperial Copyright Act 1842 continued to have effect in Canada, despite the passage of the Canadian Copyright Act, 1875.Smiles v. Belford, 1 O.A.R. 436, held to have been properly decided in This effectively meant that Canadian copyright was a local scheme, whereas Imperial copyright conferred general protection throughout the British Empire. The application of Imperial copyright was strengthened by the earlier decision of the House of Lords in Routledge v Low,Routledge v. Low, (1868) 3 LTR 100, expanding upon its previous ruling in 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. As the United States was not then a signatory to an international copyright treaty (thus rendering its citizens ineligible for Canadian copyright), many Americans took advantage of this ruling by visiting Canada while their books were being published in London (and thereby obtaining Imperial copyright).
There were other significant differences between the Canadian and Imperial régimes:
Provision Copyright Act, 1875 (Canada) Copyright Act 1842 (Imperial)TermInitial term of 28 years, with option to renew for another 14 yearsLife of the creator plus 7 years, or 42 years from publication (whichever was greater)Registration of copyrightRequired for grant of copyrightRequired in order to sue or claim copyright infringementCopyright notice requiredYesNo
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. Canada opted to exercise the latter choice, and, upon passage of the Copyright Act, 1921, it assumed complete jurisdiction over copyright and Imperial legislation in the matter ceased to have effect.
Canada did not join the Buenos Aires Convention of 1910, adhered to by most Pan-American countries.
Copyright Act, 1921
The Copyright Act, 1921, came into force in 1924. Though Canada was no longer subject to imperial copyright law, it was closely modelled on the UK Copyright Act 1911:
the term of copyright was extended to 50 years after the creator's deathCopyright Act, 1921, s. 5 (but, where a work was not yet published at the time of death, its term was extended to 50 years after publication)Copyright Act, 1921, s. 9 sound recordings were protected "as if such contrivances were musical, literary or dramatic works"Copyright Act, 1921, s. 4(3) in the case of an engraving, photograph or portrait, the initial owner of the copyright was the person who commissioned the plate or other originalCopyright Act, 1921, s. 11(1)(a) any remaining rights (if any) at common law were abolishedCopyright Act, 1921, s. 41(3), Schedule
Following the UK Carwardine case, rights in performer's performances were also held to exist under the Canadian Act (although they were never enforced). This was abolished in 1971.noted in
New technological developments and the emergence of computers, photocopiers and recording devices led to a recognition that copyright law needed to be updated. Between 1954 and 1960 the Royal Commission on Patents, Copyright, and Industrial Design, known as the Ilsley Commission, published a series of reports.including 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."
Reform (1988–2012)
Between 1977 and 1985, a series of reports and proposals were issued for the reform of Canadian copyright law.
Eventually a copyright reform process was initiated in two phases: Phase one was started in 1988 and saw several amendments to the Copyright Act. Computer programs were included as works protected under copyright, the extent of moral rights was clarified, the provision for a compulsory license for the reproduction of musical works was removed, new licensing arrangements were established for orphan works in cases where the copyright owner could not be found, and rules were enacted on the formation of copyright collecting societies and their supervision by a reformed Copyright Board of Canada.