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Copyright Transfer, Assignment and Licensing in Canada

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Transfer, assignment and licensing

Transfer and assignment

What rules, restrictions and procedures govern the transfer and assignment of copyright? Are any formalities required to secure the legal effect of the transfer or assignment?

An assignment must be in writing and signed by the copyright owner or the owner’s duly authorised agent. While the recordal of a copyright assignment is not mandatory, recording establishes priority of rights as between conflicting assignments of ownership. This means that the first recorded copyright assignment will be taken as valid against an earlier assignment that has not been recorded.

Moral rights – which are the right to the integrity and paternity in the work – cannot be assigned. They may be only waived, in whole or in part. There is no presumption of a waiver of moral rights when the work is assigned.

Where the author of a work is the first owner of the copyright, the assignment of the work other than by will is subject to a reversionary interest 25 years from the death of the author. This means that the work devolves on the author’s legal representatives as part of the author’s estate. This rule does not apply to the assignment of the copyright in a collective work.

What rules, restrictions and procedures govern copyright licensing?

The Copyright Act permits the grant of licences, provided that the license is in writing. The licence must be signed by the copyright owner or the owner’s duly authorised agent. While the recordal of a licence agreement is not mandatory, recording establishes priority of rights as between conflicting assignments and licences.

An exclusive licensee can do any act that is subject to copyright to the exclusion of all others, including the copyright owner.

The grant of a licence is subject to a reversionary interest. Where the author of a work is the first owner of the copyright, the grant of a license other than by will reverts to the author’s legal representatives as part of the author’s estate 25 years from the death of the author. This rule does not apply to a licence to publish a work as part of a collective work.

The registration of a licence creates a presumption as to the existence of the licence and that the registered licensee is the holder of that interest. The licensee may obtain a copyright registration on behalf of its owner.

Are there any special provisions governing sub-licensing?

There are no provisions regarding sub-licensing in the Copyright Act. Sub-licensing is permissible in the absence of an agreement to the contrary.

What collective licensing bodies operate in your jurisdiction and how are their activities regulated?

Many collective societies operate in Canada, some of which are affiliated with foreign societies. The Copyright Board of Canada regulates the collective societies. The board oversees the tariff-setting process for all copyrights and approves agreements entered into by users and collectives. Board decisions may be reviewed by the Federal Court of Appeal.

For audiovisual and multimedia, the collective societies are:

• Audio Ciné Films;
• the Canadian Screenwriters Collection Society;
• Christian Video Licensing International;
• Criterion Pictures;
• the Directors Rights Collective of Canada;
• the Producers Audiovisual Collective of Canada; and
• Société civile des auteurs multimédias .

For educational rights, the collective society is the Educational Rights Collective of Canada.

For literary (eg, literary works, dramatic works and texts), the collective societies are:

• Access Copyright, the Canadian Copyright Licensing Agency;
• the Playwrights Guild of Canada;
• Société des auteurs et compositeurs dramatiques ;
• Société québécoise de gestion collective des droits de reproduction ; and
• Société québécoise des auteurs dramatiques .

For media monitoring, the collective society is the Canadian Broadcasters Rights Agency.

For music, the collective societies are:

• ACTRA Performers’ Rights Society;
• the Canadian Musical Reproduction Rights Agency;
• Christian Copyright Licensing Inc;
• CMRRA-SODRAC Inc;
• Connect Music Licensing;
• the Musicians’ Rights Organisation Canada;
• Re: Sound Music Licensing Company;
• Société de gestion collective des droits des producteurs de phonogrammes et vidéogrammes du Québec ;
• Société de gestion des droits des artistes-musiciens Inc ;
• the Society for Reproduction Rights of Authors, Composers and Publishers in Canada; and
• the Society of Composers, Authors and Music Publishers of Canada.

For private copying, the collective society is the Canadian Private Copying Collective.

For retransmission, the collective societies are:

• Border Broadcasters Inc;
• the Canadian Broadcasters Rights Agency;
• the Canadian Retransmission Collective;
• the Canadian Retransmission Right Association;
• the Copyright Collective of Canada;
• Direct Response Television Collective;
• FWS Joint Sports Claimants;
• the Major League Baseball Collective of Canada; and

For visual arts (eg, photographs and paintings), the collective societies are:

• Copyright Visual Arts; and
• the Society for Reproduction Rights of Authors, Composers and Publishers in Canada.

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Copyright Law

Article by Brian A. Crane

Published Online February 2, 2012

Last Edited December 16, 2013

Copyright law is included in what is commonly known as the law of intellectual and industrial property. This branch of law also includes Patents , Trademarks and the law of industrial designs. In Canada, the Constitution Act of 1867 gives exclusive jurisdiction over copyright law to the federal government. The current Copyright Act was enacted by Parliament in 1921 and amended significantly in 1988 and 1997.

Copyright is the right of an owner to prevent unauthorized copying or use by others. The copyright of a work is separate and distinct from the physical work itself. Because s5(1) of the Copyright Act provides that copyright subsists in every "original literary, dramatic, musical and artistic work," copyright protection applies to books, poetry, plays, software, motion pictures, songs, phonograph records, paintings, drawings, computer programs, sculptures and photographs. However, not every literary, dramatic, musical or artistic work is protected. A work must be "original" in the sense that it must not be a copy itself. Secondly, the work must be in fixed or written form capable of identification. Finally, for copyright to subsist in Canada the author must, at the date of creation, be a subject or citizen of Canada or a foreign country that either is a member of an international agreement of which Canada is also a member or has arrived at an international agreement with Canada.

The 1988 amendments extend copyright protection to a greater variety of works. Copyright now protects computer programs, tables, compilations and translations as literary works. Computer program protection is limited, as persons are authorized to reproduce programs for backup purposes or for the functional operation of the programs themselves (s27(2)(1) and (m)). In addition, copyright protection extends to any work of choreography, whether or not there is a story line.

Original Works

The specific rights underlying copyright that arise automatically with the creation of an original work are enumerated in s3(1) of the Copyright Act. The most important rights include the right "to produce or reproduce the work or any substantial part thereof in any material form whatever,""to perform, or in the case of a lecture, to deliver, the work or any substantial part thereof in public,""to communicate the work to the public by telecommunication" and, "if the work is unpublished, to publish the work or any substantial part thereof." These rights continue, in most cases, for the life of the author and a period of 50 years after his or her death.

Section 13(1) of the Copyright Act provides that the author of the work is the first owner of the copyright. If a work is created by an employee in the course of employment, however, the employer is the first owner of the copyright. Owners can license or assign their rights in return for a lump-sum payment or a royalty.

Rights of Authors

Authors, including employees, as distinguished from copyright owners, are also given certain "moral rights" under the Act. Moral rights include the right to be associated with the work, where reasonable, the right not to be associated with the work, and the right to the integrity of the work. These rights cannot be assigned, but they may be waived. They are not automatically waived with an assignment of the copyright.

Rights of Performers

Performers also have a "performers' performance" right, since 1 January 1996, that gives the performer the sole right to fix or to reproduce his or her performance. For example, unauthorized video taping of a performance would infringe this right since this is a type of fixation.

Any person who, without the consent of the copyright owner, does anything that only the copyright owner has the right to do or who sells, rents, distributes, exhibits by way of trade in public or imports into Canada any work that infringes copyright or, for private profit, permits a theatre to be used for a public performance without the owner's consent, has broken the law of copyright. However, where the similarity of the work and the alleged copy arises from mere coincidence or from resort to the same source, copyright has not been infringed upon. Further, under s27(2)(a) of the Copyright Act, "fair dealing with any work for the purposes of private study, research, criticism, review or newspaper summary" does not constitute infringement.

Civil Remedies

The Copyright Act allows civil remedies for infringement which include injunctions, damages and accounting for profits. The Act also provides sanctions of imprisonment for up to 5 years or fines of up to $1 million for persons who knowingly infringe copyright.

To better control the unauthorized use of copyright works and facilitate the licensing thereof, the Copyright Act provides for the collective administration of various copyrights, including music performing rights. In 1989, a new Copyright Board was created and given jurisdiction to fix royalties payable by cable television operators and other retransmitters for their retransmission of copyright works contained in television signal. The royalties collected by such performing societies are then distributed to the individual copyright owners.

Particulars of a copyright work and its owner, as well as assignments and licences, may be registered at the Copyright and Industrial Design Office in the Department of Industry Canada, Hull, Qué.

International Copyright Agreements

Canada has signed 2 major international copyright agreements: the 1928 Rome revision of the Berne Convention and the 1952 Universal Copyright Convention. The Berne Convention provides for automatic reciprocal copyright protection in Canada and other member countries. The United States has been a member since March 1989. The Universal Copyright Convention, the only major international copyright agreement signed by the US, also provides for reciprocal copyright protection in Canada and member countries, but only upon compliance with certain formalities. The US and Canada also have a reciprocal arrangement.

Membership in the Berne Convention has an important bearing on the importation of foreign editions of Canadian books. Under the Copyright Act (s27(4)(d)), copyright in a work is infringed by a person who imports into Canada any work that infringes copyright. Indeed, under s44 of the Act, the copyright owner can appeal to customs officials to bar importation of such copies into Canada. However, s45 allows the importation of foreign editions of books by Canadian authors if those books have been printed in Great Britain or in a foreign country which adheres to the Berne Convention.

The Challenges of Technology

New technology constantly challenges the law of copyright. In the 1950s a Canadian court held that the distribution of film telecasts by Cable Television to individual subscribers at home did not infringe of copyright in the film telecasts. This ultimately led to the 1988 amendments to the Act pertaining to retransmission rights. Unauthorized sound recording and audio-video recording are infringements of copyright in these situations for the copyright owners to detect infringement and enforce their rights. With the advent of CD-ROM technology, compilations of thousands of works can be contained on a single disk, making it easier to infringe copyright and more difficult to detect and prevent infringement. Similarly, the advent of the Internet has created unprecedented opportunities for the unauthorized reproduction of copyright works ( see Internet, Law and the ).

Substantial amendments to the Copyright Act, the so-called Phase II amendments, were introduced as Bill C-32 in 1996. Most, though not all, of these amendments have come into effect. Changes include specific exemptions from infringement for libraries, archives, educational institutions, museums and persons with perceptual disabilities; royalties for producers and performers of sound recordings; and a levy on blank tapes (to address private copying), the proceeds of which will be paid to the composers, lyricists, performers and producers of sound recordings.

Further Reading

A.G. Blomquist and Chin Lim, Copyright, Competition and Canadian Culture (1981); P. Burn, Guide to Patent, Trademark, Copyright Law in Canada (1977); J. Palmer and R. Reesendes, Copyright and the Computer (1982) David Vaver, Copyright Law (2000); David Vaver, Intellectual Property Law , 2d ed. (2011).

External Links

• CANCOPY On-line Official web site of Cancopy, loads of info on copyright in Canada.
• Copyright Board of Canada The website for the Copyright Board of Canada. Offers online access to Canada's Copyright Act and the latest news about copyright issues.
• Arvic Search Services A private company specializing in Trade Marks and Title Registries. Features online articles about related issues for small business owners.
• Intellectual Property Office The website for the Canadian Intellectual Property Office. Responsible for the administration and processing of the greater part of intellectual property in Canada, including patents, trade-marks, copyrights, industrial designs, and integrated circuit topographies.
• Supreme Court of Canada The extensive website for the Supreme Court of Canada provides access to the Court's online library catalogue, biographies of Supreme Court Judges, an overview of Canada’s judicial system and related information.
• Department of Justice Canada Answers to your questions about Canada's justice system may be as close as the online "Resource Centre" at this Department of Justice Canada website. Features authoritative information about Canadian law, the judicial process and the federal administration of justice.

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Copyright Protection in Canada for Artists

• Bain, Paul E.
• February 2016
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Copyright Defined In Canada, “copyright” refers to the bundle of rights conferred by the Copyright Act (the Act ) on the copyright owner and author of a work. The owner of copyright has the sole right to produce or reproduce a work (or a substantial part of it) in any form, and the sole right to exhibit the work in public. Copyright provides protection for literary, artistic, dramatic or musical works and other subject-matter including performer’s performances, sound recordings and communication signals. If a work is unpublished, copyright includes the right to publish the work or any substantial part of it. Copyright applies to all original artistic works , such as paintings, drawings, maps, photographs, designs, musical compositions, sculptures and plans, provided the conditions set out in the Act have been met, namely:

• a work must be original, in that it involves some intellectual effort or skill;
• the author was at the date of the making of the work a citizen of, or a person ordinarily resident in, Canada.

Generally, copyright lasts for the life of the author, the remainder of the calendar year in which the author dies, and for 50 years following the end of that calendar year. Therefore, protection will expire on December 31st of the 50th year after the author dies. In the case of a work that has more than one author, the copyright will last for the remainder of the calendar year in which the last author dies, and for 50 years after that. Considerations: Registering Copyright Although copyright arises automatically when an artistic work is fixed in a material form , registering a copyright provides certain legal advantages and benefits in Canada:

• a copyright certificate is proof of the owner’s rights in a case of copyright infringement in court proceedings; and
• a copyright owner can seek certain monetary remedies, an accounting of profits, a permanent injunction, an order to deliver all infringing materials, or can elect to recover “statutory damages” of up to CDN $20,000 per work infringed.

The Copyright Office is not responsible for policing or checking on registered works. (Note that a certificate of copyright registration does not guarantee that the legitimacy of ownership or the originality of a work will never be challenged.) How To Apply For Registration A. The Application The application registration can be accessed through the Canadian Intellectual Property Office (CIPO) e-portal at:  https://www.ic.gc.ca/app/scr/opic-cipo/da-cpr/depot-filing/connexion-login_eng.htm (log-in required). The applicant must include several pieces of information, which are discussed in detail below.       I. The Title The title must be included in the application, and be able to identify a single work, but should not include descriptive matter that does not constitute a part of the title. If the work is published in a series or in parts, a single application for the whole work is sufficient.      II. Category of the work The application must specify the category of the work. The “artistic work” category for example, includes paintings, drawings, maps, charts, plans, photographs (photo-lithograph and any work expressed by any process akin to photography), engravings (etchings, lithographs, woodcuts, prints and other similar works), illustrations, sketches, sculptures (a cast or model), works of artistic craftsmanship, architectural works (meaning buildings or structures or any model of a building or structure) and compilations of artistic works. A work will constitute a compilation when it results from the selection or arrangement of literary, dramatic, musical or artistic works or parts thereof, or a work resulting from the selection or arrangement of data. Also, a compilation containing two or more of the categories of literary, dramatic, musical or artistic works is considered a compilation of the category making up the most substantial part of the compilation.       III. Publication If a work is published, the date and place of first publication must be included in the Application. “Publication” is considered to include circumstances such as:          a. making copies of a work available to the public;          b. constructing an architectural work (building or structure or any model of a building or structure); or          c. incorporating an artistic work into an architectural work. “Publication” is not considered to include:          a. distributing photographs/engravings of sculptures or architectural works;          b. exhibiting an artistic work in public;          c. performing an artistic work in public; or          d. communicating an artistic work to the public by telecommunication.      IV. Ownership The application must include the name and complete mailing address of the owner of the copyright. If more than one copyright owner, any additional names and addresses must also be included in the application. The copyright owner is usually the author of the work, but can also be the employer of the author or any other person (individual or other legal entity) that has obtained ownership through a transfer of ownership such as an assignment.       V. Author The name of the author – typically, the individual who created the work – should be named as author of the work should be included on the application, although the complete mailing address of the author is optional. If there is more than one author, additional names and addresses can be included, and if the author is deceased, the date of death should be included in the application, if it is known.       VI. Declaration The application must contain a declaration that the person who is applying to register the copyright is one of:          a. the author of the work;          b. the owner of the copyright in the work;          c. an assignee of the copyright; or          d. a person to whom an interest in the copyright has been granted by licence.       VII. Filing the Application Form and Filing Fee To obtain a registration of copyright, a copyright owner must file an application with CIPO, accompanied by the appropriate fee. The application can be filed electronically, by mail, or by facsimile. The fee for filing the Application electronically is CAD$50, while the fee for filing by any other method is CAD$65. Once copyright is registered, no further fees are required to maintain the registration. CIPO does not review or assess works in any way and requires a copy of the work be filed with the Application. Protecting Copyright After Registration A. The Copyright Symbol Although Canadian copyright law does not require a copyright owner to mark a work with the copyright symbol (©), the use of the copyright symbol serves as a general reminder to the world that the work is protected by copyright. We recommend that the copyright symbol be used with all work. A copyright symbol should be accompanied by the name of the copyright owner, and the year of first publication . It should be noted that a copyright owner may still use the copyright symbol even if the work is not registered. Additionally, although Canadian copyright law does not make the use of a copyright symbol mandatory, certain other jurisdictions (including the United States) do require it. B. Assignments and Licenses An assignment occurs when a copyright owner transfers part or all of their rights to another party for the whole term of the copyright or for a certain part of it. A licence allows the copyright owner to retain ownership of the copyright, while allowing someone else to use the work for certain purposes and under certain conditions. Should a copyright owner choose to assign or licence the copyright interest, such an assignment or license can be registered with CIPO by filing the original agreement or a photocopy of it, along with the prescribed fee for each work affected by the assignment or licence. A copyright owner can submit a request online or by mail or facsimile. CIPO will retain a copy of the documentation and return the original documentation along with a certificate of registration. This client alert is published by Dickinson Wright LLP to inform our clients and friends of important developments in the field of copyright law . The content is informational only and does not constitute legal or professional advice. We encourage you to consult a Dickinson Wright lawyer if you have specific questions or concerns relating to any of the topics covered in here. FOR MORE INFORMATION CONTACT: Paul E. Bain is a partner in Dickinson Wright’s Toronto Office and can be reached at 416.646.8364 or [email protected]

For a printable version of this Intellectual Property client alert, click here .

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September 10, 2024

The Copyright Board of Canada is pleased to be joining the Canadian Digital Regulators Forum. We look forward to sharing and collaborating with the other members of the forum on matters that relate to digital markets and platforms. For more information click here . 

Information Management Initiatives and Consultation

August 22, 2024

The Board is updating its information management practices and holding a consultation on its plan to update the status of historical commercial information, once, but no longer, considered sensitive, confidential or highly confidential . Details about the consultation and the information management initiatives are available here. Comments are welcome by Friday, August 30, 2024 [NEW DATE] at [email protected] .

Nomination of a new Vice-Chair and CEO

July 16, 2024

Today, the Honourable François-Philippe Champagne, Minister of Innovation, Science and Industry, announced the appointment of Drew Olsen as Vice-Chair and Chief Executive Officer of the Copyright Board of Canada, for a five-year term, starting August 26, 2024. For more information click here .

A Message from the Vice-Chair and CEO of the Copyright Board

March 27, 2024

April 2, 2024 will be my last day at the Copyright Board as Vice-Chair and Chief Executive Officer, as I will begin on the following day a new chapter in my professional life as Vice-Chair (Broadcasting) of the CRTC.

First appointed in October 2018, I have had the honor of accompanying the Board along a journey of unprecedented modernization. It hasn’t been easy, but I am proud of the work accomplished.

If I was able to give this mission a certain sense of direction, it is largely because Board employees gave me their trust from the beginning. They accepted to question their own assumptions, put away the comfort of past habits, and embrace change and innovation . I thank them and will miss them dearly.

This mission was also made possible because of the unwavering support of the two Chairs and three Members I have had the privilege to work with since 2018: the Honorable Robert Blair, the Honorable Luc Martineau, René Côté, Katherine Braun and Adriane Porcin. I thank them all from the deepest part of my heart for their support and guidance.

I also thank former Industry Minister the Honorable Navdeep Bains and Industry Minister the Honorable François-Philippe Champagne for their trust in me and commitment toward an effective copyright marketplace. Thank you also to Canadian Heritage Minister the Honorable Pascale St-Onge for giving me the opportunity to contribute in a different manner to the development of creative industries in Canada.

Finally, I would like to thank the parties and stakeholders for their openness and commitment toward the Board. They have been great partners to me.

Starting April 3, 2024, Lara Taylor, Secretary General, will assume on an interim basis all the responsibilities and authorities delegated to the position of Deputy Head of the Board, until this position is filled permanently. Lara will also take over the role of case manager for the files pertaining to online audiovisual services. As for the adjudicative functions of the Vice-Chair, they will be assumed by the Chair and other Members. I know that Lara will be able to count on your support.

Until next time,

Nathalie Théberge ASC C.Dir Vice-Chair and CEO of the Copyright Board

A Message from the Chair of the Copyright Board

February 22, 2024

It is with great pleasure that I inform you of the appointment of our current Vice-Chair and CEO, Ms. Nathalie Théberge, to the position of Vice-Chairperson, Broadcasting of the Canadian Radio-television and Telecommunications Commission (CRTC). This appointment, announced today by the Honourable Pascale St-Onge, Minister of Canadian Heritage, will take effect on April 3, 2024.

Ms. Théberge has played an exceptional role within our Board, significantly contributing to our mission. Her departure is a loss for us but also a well-deserved recognition of her skills and dedication to the field of copyright.

We sincerely thank her for her dedication and wish her the very best in her new role at the CRTC. We are confident that she will continue to bring her passion and expertise to serve the Canadian creative industries.

Thank you again and I look forward to continuing to work together for the promotion and protection of copyright.

Honourable Luc Martineau Chair of the Copyright Board

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Understanding Moral Rights under Copyright Law

Defining moral rights, moral rights protection in canada, infringement of moral rights, waiving moral rights.

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Standard fees for copyright.

From: Canadian Intellectual Property Office

Check fees for registering a copyright, registration of an assignment and other services. All amounts are in Canadian dollars.

Most common fees

Different fees must be paid at various times during the copyright application process. This table provides an overview, but the complete list should be consulted.

*If the application and fee are not submitted online to the Copyright Office, via the Canadian Intellectual Property Office website, an additional fee of $18 is required.

Related links

• Tariff of Fees – Copyright Regulations
• IP loans and financing
• Copyright guide
• Register a copyright
• Methods of payment

Legislation

• Copyright Act
• Copyright Regulations

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The Government of Canada Launches Consultation on a Modern Copyright Framework for Online Intermediaries

From: Canadian Heritage

News release

The Government of Canada is consulting with Canadians and stakeholders to ensure Canada’s copyright framework for online intermediaries reflects the evolving digital world

OTTAWA, April 14, 2021

The Government of Canada is committed to ensuring the Copyright Act remains consistent with modern realities and that revenues of web giants are shared fairly with Canadian creators.

Building on the stakeholder engagement and committee reports from the 2019 Parliamentary Review of the Copyright Act and other research, the Honourable Steven Guilbeault, Minister of Canadian Heritage, and the Honourable François-Philippe Champagne, Minister of Innovation, Science and Industry, are launching a public consultation today on Canada’s copyright framework for online intermediaries to make sure it reflects the evolving digital world.

As the distribution and use of copyright-protected content online have expanded and the services of online intermediaries have grown and diversified, it is important to ensure that Canada’s copyright framework for online intermediaries still achieves its underlying objectives. The Copyright Act must adapt to ensure that the use of copyright-protected content online is protected and individual rights and freedoms in an open Internet are safeguarded, while facilitating an environment where the digital market can thrive.

The Government is publishing a consultation paper that outlines potential options for stakeholder and public consideration. These options relate to intermediaries’ protections against liability for copyright infringement, rights holder remuneration models, transparency obligations and the effective enforcement of copyright.

The Government welcomes all comments providing additional perspectives or evidence concerning these issues and potential options. Participants have until May 31, 2021, to share their input .

Responses received will be made available following the consultation period and will help inform the Government’s policy development process as the Government considers how the Copyright Act needs to evolve and how the revenues of web giants can be shared more fairly with Canadian creators. 

“Our Government is committed to meaningful platform governance, including the modernization of the Broadcasting Act , a new framework for online harms, news media remuneration and copyright reform. These efforts will contribute to a healthier online environment for Canadians, creators and media. In the area of copyright, we need a more up-to-date framework to ensure more accountability and better remuneration and transparency.” —The Honourable Steven Guilbeault, Minister of Canadian Heritage

“For Canada to have an innovative and flourishing digital economy, we must protect copyright online. With this consultation, we aim to strike the balance between facilitating broad, lawful access to copyright-protected content, and safeguarding individual rights and freedoms in an open Internet. We have launched this process to hear the diverse perspectives of stakeholders, from online intermediaries to those holding copyrights, as well as any Canadian who wants to share input, to make sure Canada maintains a balanced copyright framework.” —The Honourable François-Philippe Champagne, Minister of Innovation, Science and Industry

Quick facts

The Government is taking a phased approach to the review of the Copyright Act while considering the recommendations from the Parliamentary committees. From February 11 to March 31, 2021, the ministers consulted on how to implement Canada’s commitment under the Canada-United States-Mexico Agreement to extend the general term of copyright protection. An additional consultation on a modern framework for artificial intelligence and the Internet of Things will be launched by summer 2021.

Online Intermediaries:

Online intermediaries are entities that facilitate access to online content, including copyright-protected content, which vary widely in the services they offer as well as their size (for example, Internet service providers, “cloud” storage services, web hosts, social media and other public content-sharing platforms and search engines).

Artificial Intelligence and the Internet of Things:

Artificial intelligence (AI) is a technology intended to replicate human thought by analyzing, learning and reacting to challenges without human direction. AI serves a role in software and technologies by customizing the user experience, simplifying the analysis of data or reducing the costs of human labour.

Internet of Things (IoT) refers to networks of devices equipped with software and sensors that connect and exchange data with other devices using the Internet. Common IoT devices include smartphones, televisions and vacuums. IoT is also significant for the medical, agricultural and manufacturing sectors.

Related products

• Consultation on a Modern Copyright Framework for Online Intermediaries
• Consultation paper on a Modern Copyright Framework for Online Intermediaries

Associated links

• Consultation on How to Implement CUSMA Commitment to Extend Canada’s General Copyright Term of Protection
• Copyright policy
• Statutory review of the Copyright Act

For more information (media only), please contact:

Camille Gagné-Raynauld Press Secretary Office of the Minister of Canadian Heritage [email protected]

Media Relations Canadian Heritage 819-994-9101 1-866-569-6155 [email protected]

John Power Press Secretary Office of the Minister of Innovation, Science and Industry [email protected]

Media Relations Innovation, Science and Economic Development Canada [email protected]

Page details

Put It In Writing And Sign For Copyright

Contributor.

A recent case sheds some light on the requirement that an assignment of copyright be in writing signed by the copyright owner in order to be enforceable.

Commissioned Works

In a business or personal context frequently one party will contract with another person to create a work for which the requesting party will pay. Many examples exist such as a contract to prepare advertising material and related photographs or to develop a website or to create or modify a computer program. Since the requesting party will have possession of the resultant work and typically legal ownership there is an expectation that the requesting party will also own the copyright in the work.

The Copyright Act

The relevant provisions of the Act are not aligned with the expectation of ownership of copyright. The Act provides that, subject to an exception for works made in the course of employment, the author of a work is the first owner of the copyright in the work. The copyright owner is entitled to exercise the rights set out in the Act, including the right to authorize others to exercise those rights. In addition, the author is entitled to exercise the moral rights associated with the work.

The term "author" is not defined, but generally the author of a work is the person who actually creates it. In most cases it will be readily apparent who the 'author' of a work is but there are some situations which are unclear. In these situations it must be determined who exercised the skill and judgment resulting in the expression of the work in material form.

The Act allows the owner of copyright to assign the copyright in very broad terms but no assignment is valid unless it is in writing signed by the owner of the copyright or by their duly authorized agent.

Problems can arise in situations where there is in effect an assignment but it is not signed. In appropriate cases the courts of the United Kingdom have been prepared to avoid the technical application of the requirement for writing by imposing an "equitable" assignment. However, Canadian courts have generally taken the position that they had no power to make such an assignment in light of the wording of the Act. But they have granted implied licenses in favor of the commissioning party to avoid injustice when appropriate in the facts of a case.

The Decision

A recent decision of the Federal Court of Appeal has addressed this issue and added some clarity. In this case the defendant entered into a contract to have a computer programmer modify an existing program owned by the defendant, but the contract was not signed by the programmer. The programmer acknowledged that that the assignment clause of the unsigned contract governed his relationship with the defendant.

The Trial Judgment

The programmer sued the defendant for infringement after the defendant hired another programmer to further modify the program. The trial judge found that the programmer was the author of the copyright in the program as he exercised the skill and judgment required to express the ideas and concepts into programming language. While the wording of the contract was sufficient to amount to an assignment of copyright it was not signed and not effective in light of the requirements of the Act. The signed writing requirement is a substantial legal requirement and not a mere rule of evidence.

To avoid an unjust result the trial judge said that programmer had granted an implied license to the defendant to use the program. The license did not need to be in writing and was a defense to a claim for infringement.

An appeal from the trial decision was dismissed. The Federal Court of Appeal observed that the purpose of the Act was to strike a fair balance between the public interest in the creation and dissemination of works of art and the intellect, on the one hand, and obtaining a just reward for the creator, on the other hand. With this objective in mind Parliament stated that an assignment of copyright is not be valid unless it is in writing signed by the owner of the copyright.

To protect copyright owners, the Act requires that they consent clearly to the assignment of their interest in their right. This is why the Act requires the holder of the copyright to indicate his or her informed consent to the transfer of the right in writing bearing his or her signature. The case law consistently holds that an assignment cannot be set up against the owner of a copyright unless it is in writing signed by the owner of the right in question.

While a number of commentators aspire to the U.K position with the ability to grant and enforce an "equitable" assignment such an approach adds uncertainty since enforceability depends on the reaction of a judge to the facts of the case. The current position at least has the benefit of providing more certainty.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Intellectual Property

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