This presentation, geared to web designers, provides an overview on the basics of Canadian copyright law as well as a brief introduction to the aspects of Canada's current copyright reform bill (Bill C-11) most relevant to web designers.

1. Canadian
Copyright
Law:
A
Primer
Lorraine
M.
Fleck
Web
Design
Graduate
Cer9ficate
Course
Sheridan
Ins9tute
of
Technology
and
Advanced
Learning
March
9,
2012
These
slides
do
not
cons9tute
legal
advice.

2. Overview
I. Canadian
Copyright
Law
Primer
1. What
is
copyright?
2. What
does
copyright
protect?
3. How
is
copyright
created?
4. How
long
does
copyright
exist?
5. Who
owns
copyright?
6. Who
can
use
copyright
materials?

3. Overview
I. Canadian
Copyright
Law
Primer
6. What
is
copyright
infringement?
Are
there
excep9ons?
7. What
are
“moral
rights”?
8. What
are
some
of
the
highlights
of
the
Canadian
copyright
reform
bill
(Bill
C-­‐11)
relevant
to
your
work?
II. Ques<ons?

4.
Canadian
Copyright
Law
Primer

5. What
is
Copyright?
The
exclusive
right
to
reproduce
original
content
and
stop
others
from
reproducing
that
content.
§ Means
that
you
must
get
others
permission
to
use
their
content
unless
your
ac9vity
falls
within
an
excep9on
to
infringement.
§ Applies
to
the
Internet!
§ The
laws
in
Canada
and
the
US
can
differ
drama9cally.

6. What
Does
Copyright
Protect?
Original
literary,
drama9c,
musical
and
ar9s9c
works.
§ Literary
works
include
books,
pamphlets,
magazines,
newspapers,
tables,
computer
programs,
compila9ons
of
literary
works.
§ Drama9c
works
include
choreography,
wri^en
music,
movies
and
musical
plays.

7. What
Does
Copyright
Protect?
§ Audible
musical
works
include
music
with
or
without
words.
§ Ar9s9c
works
include
pain9ngs,
drawings,
maps,
charts,
plans,
photos,
engravings,
sculpture,
cra_s
and
architectural
works
such
as
buildings,
sculptures
and
models.

8. How
is
Copyright
Created?
§ The
original
work
is
created
by
a
Canadian
ci9zen
or
ci9zen
of
a
Berne
Conven)on
country.
§ The
work
must
come
into
physical
existence;
copyright
does
not
exist
in
ideas.
§ If
the
work
is
published,
the
work
is
published
in
Canada
or
a
Berne
Conven)on
country.

9. How
is
Copyright
Created?
§ No
need
to
register
or
mark
(e.g.
©
2012,
Lorraine
M.
Fleck).
§ Registra9on
is
a
rebu^able
assump9on
of
copyright
that
can
be
useful
for
li9ga9on
purposes.
§ Best
to
register
early;
Canadian
courts
are
skep9cal
of
registra9ons
obtained
shortly
before
or
during
a
lawsuit.

10. How
Long
Does
Copyright
Exist?
Depends
on
the
type
of
work
and
whether
there
are
joint
authors.
For
e.g.:
§ Most
works
=
Life
of
the
author
+
Rest
of
the
calendar
year
in
which
the
author
died
+
50
years
§ Joint
authors
=
Term
lasts
to
the
end
of
the
50th
year
of
the
last
author
dies
§ Unknown
author
=
Lesser
of
the
end
of
the
50th
year
a_er
publica9on
OR
75
years
a_er
the
work
was
made

11. How
Long
Does
Copyright
Exist?
§ Photographs
=
To
the
end
of
the
50th
year
from
the
making
of
the
ini9al
nega9ve
§ Movies
=
To
the
end
of
the
50th
year
from
first
publica9on
and
if
not
published,
50
years
from
the
making
of
the
movie
§ Sound
recordings
=
50
years
from
when
first
recorded
§ Broadcasters
=
50
years
from
communica9on

12. Who
Owns
Copyright?
Usually
the
person
who
creates
the
copyright
work
but
there
are
excep9ons.
§ Photographs:
The
first
person
who
owns
the
nega9ve
of
the
photo
(not
always
the
photographer).
§ Employees:
Employers
are
the
first
owner
of
works
created
for
the
employer
by
the
employee.

13. Who
Can
Use
Copyright
Materials?
§ The
owner.
Ownership
can
be
transferred,
but
must
be
in
wri9ng.
The
ownership
transfer
agreement
usually
is
called
an
“assignment’.
§ Anyone
who
has
permission
(“license”).
The
terms
of
the
license
dictate
what
the
“licensee”
can
do
under
the
license.
The
fee
paid
under
the
license
to
the
copyright
owner
(“licensor”)
is
a
“royalty”.

14. Who
Can
Use
Copyright
Materials?
Be
careful
with
“royalty
free”
content!
§ Each
site
has
its
owns
terms
governing
content
use.
§ Many
sites
only
allow
non-­‐commercial
use.
§ Commercial
licenses
are
o_en
restricted
e.g.
number
of
copies,
territory.
§ Read
license
terms
carefully.
§ Know
how
the
content
will
be
used
before
purchasing
a
license
to
avoid
wasted
$$$.

15. What
is
Copyright
Infringement?
§ The
making
of
an
unauthorized
copy.
§ There
must
be
a
“substan9al”
por9on
of
the
material
copied.
§ No
hard
and
fast
rule
as
to
what
is
substan9al.
§ Test
is
quality,
not
quan9ty:
Does
the
copy
take
enough
of
the
work
so
as
to
convey
at
least
a
por9on
of
the
value
of
the
work?

16. What
is
Copyright
Infringement?
§ Two
types:
1. Primary:
A
copy
is
made
without
permission
(e.g.
copying
a
most
of
a
magazine
ar9cle,
pirated
so_ware).
2. Secondary:
The
sale,
rental
or
distribu9on,
or
display
or
possession
for
that
purpose,
of
an
unauthorized
copy
provided
the
person
in
possession
of
the
copy
knows
it
was
an
infringing
copy
(e.g.
bootleg
DVD
stores,
file
sharing).

17. Are
There
Excep<ons
to
Copyright
Infringement?
§ Yes,
but
under
specific
circumstances.
§ Major
category
is
“fair
dealing”:
1. Research/private
study.
2. Cri9cism/review.
3. News
repor9ng.
§ While
not
limited
to
private
or
non-­‐commercial
contexts,
not
very
useful
for
adver9sers.
No
adver9sing
specific
excep9on.
§ Parody
is
NOT
currently
an
excep9on
in
Canada.

18. Are
There
Excep<ons
to
Copyright
Infringement?
§ What
factors
are
used
to
assess
what
is
“fair”
in
the
context
of
“fair
dealing”?
1. Purpose.
2. Character.
3. Amount.
4. Nature
(of
the
work).
5. Available
alterna9ves.
6. Effect
(of
the
dealing
on
the
work).

19. What
Are
Moral
Rights?
§ The
author’s
right
to:
1. Retain
the
integrity
of
the
work;
2. Not
have
her/his
work
distorted;
3. Have
his/her
name
associated
or
not
associated
with
the
work.
§ Ac9vi9es
must
be
shown
to
be
to
the
detriment
of
author’s
honour/reputa9on.

20. What
Are
Moral
Rights?
§ Cannot
be
transferred,
but
can
be
waived.
§ Can
prevent
you
from
altering
content
or
prevent
your
content
from
being
altered,
unless
there
is
a
waiver.
§ Term
is
the
same
as
copyright
in
the
work.

21. Bill
C-­‐11
Highlights
§ The
Copyright
Moderniza)on
Act
is
the
fourth
a^empt
at
reform
since
2005.
§ Canada’s
copyright
act
has
not
been
significantly
amended
since
1997.
§ Some
of
the
significant
changes
that
affect
those
in
web
design
and
adver9sing
include:
1. The
“mash-­‐up”
excep9on.
2. Changes
in
statutory
damages.
3. Excep9ons
for
parody
and
sa9re.

22. Bill
C-­‐11
Highlights:
Mash-­‐Ups
§ Infringement
excep9on
for
non-­‐commercial
user
generated
content
created
using
copyright
material
legi9mately
obtained
by
the
creator.
§ Applies
to
non-­‐commercial
uses
only.
§ Could
affect
the
market
for
the
works
used
to
create
the
mash
up
(e.g.
transla9ons,
sequels).

23. Bill
C-­‐11
Highlights:
Statutory
Damages
§ Would
cap
statutory
damages
against
individuals
who
infringe
copyright
for
non-­‐
commercial
purposes
to
$100
–
$5,000
for
all
works
in
the
lawsuit.
§ Currently,
statutory
damages
are
$500
-­‐
$20,000
per
copy.
§ May
result
in
less
deterrence
for
large
scale
infringers.

24. Bill
C-­‐11
Highlights:
Parody
&
Sa<re
§ Most
relevant
for
web
design
and
adver9sing.
§ Parody:
The
original
work
is
ridiculed.
§ Sa9re:
Use
of
the
original
work
to
mock
someone
else.
§ No
need
to
iden9fy
source/author
as
for
cri9cism/review
and
news
repor9ng.

25. Bill
C-­‐11
Highlights:
Parody
&
Sa<re
§ While
parody
and
sa9re
excep9ons
will
give
those
in
adver9sing
such
as
web
designers
more
tools
to
create
content,
s9ll
need
to
be
careful.
§ Parody
and
sa9re
may
infringe
trade-­‐marks,
result
in
defama9on.
§ Use
of
content
must
be
“fair”:
do
not
use
too
much,
and
avoid
impac9ng
exis9ng
opportuni9es
for
content
owner
to
exploit
copyright.

26.
Ques<ons

27. Ques<on
1
Q:
Can
you
use
a
copyrighted
image
if
the
image
is
no
longer
recognizable?
A:
Depends.
No
if
the
altera9on
impacts
the
ability
of
the
copyright
owner
to
exploit
the
work.
Even
if
that
is
not
the
case,
if
the
distor9on
nega9vely
affects
the
creator’s
honour/reputa9on,
then
no
because
the
distor9on
would
affect
the
author’s
moral
rights.

28. Ques<on
2
Q:
What
happens
if
you
are
accused
of
using
copyrighted
material?
What
are
some
of
the
consequences
and
how
should
you
approach
resolving
this
ma^er?
A:
Usually,
the
plain9ff’s
lawyer
will
send
a
demand
le^er.
If
the
ma^er
cannot
be
resolved
at
that
stage,
the
copyright
owner
may
sue.
The
limita9on
period
is
three
(3)
years.
Criminal
proceedings
are
also
available,
but
rare.

29. Ques<on
2
(con<nued)
A:
Remedies
for
copyright
infringement
include:
1. An
injunc9on.
The
only
available
remedy
if
an
infringer
can
prove
(s)he/it
had
not
reasonable
basis
for
knowing
copyright
existed/was
infringed).
2. Damages
and
profits
or
statutory
damages
(currently
$500
to
$20,000
per
copy).
3. Interest,
puni9ve
and/or
exemplary
damages,
“delivery
up”
of
infringing
materials
and
“costs”
(payment
of
plain9ff’s
legal
fees).

30. Ques<on
2
(con<nued)
A:
A
copyright
dispute
can
be
very
expensive
money
and
9me
wise,
with
each
party’s
legal
fees
easily
exceeding
$100,000
or
more,
and
a
lawsuit
in
Federal
Court
currently
taking
two
(2)
years
to
reach
judgement.
Proceedings
in
Ontario
Superior
Court
can
take
considerably
longer
to
go
to
trial.

31. Ques<on
2
(con<nued)
A:
What
approach
to
take
depends
on
the
facts
(e.g.
whether
there
is
copyright
in
the
work
allegedly
being
infringed).
While
many
are
hesitant
to
do
so
because
of
the
cost,
it
o_en
is
cheaper
and
in
a
party’s
best
interest
to
hire
a
lawyer
who
has
experience
with
copyright
disputes
to
assess
whether
there
is
a
claim
and
to
develop
an
ac9on
plan
(e.g.
whether
to
send
a
demand
le^er,
whether
to
se^le
a
dispute
–
which
is
o_en
cheaper).

32. Ques<on
3
Q:
When
blogging
about
other
people's
work
(i.e.
photos
from
magazines,
illustra9ons,
etc.)
and
wan9ng
to
post
images
we
find
online,
is
there
a
hard
and
fast
rule
about
how
we
should
credit
the
original
author?
What
should
we
be
wary
of
when
doing
this?

33. Ques<on
3
(con<nued)
A:
OK
if
doing
for
cri9cism/review
or
news
repor9ng
provided
you
credit
the
author
by
men9oning:
1. the
source;
and
2. if
given
in
the
source,
the
name
of
the:
a. author,
in
the
case
of
a
work;
b. performer,
in
the
case
of
a
sound
recording;
or
c. broadcaster,
in
the
case
of
a
communica9on
signal.
Otherwise,
an
infringement
even
if
the
author
is
men9oned
and
the
above
informa9on
is
provided.

34. Ques<on
4
Q:
How
can
we
best
protect
our
own
work
that
we
post
online
that
might
get
picked
up
by
other
people?
A:
Some
9ps.
§ Disable
right
clicks
(but
will
not
work
with
the
tech
savy).
§ While
not
legally
required,
copyright
no9ces
and
website
terms
of
use
on
your
own
sites
can
be
a
deterrent.
§ Register
copyright
in
commercially
important
works
that
might
get
infringed
so
you
have
your
registra9on
in
advance
of
li9ga9on.

35. Ques<on
5
Q:
What
exactly
are
the
ownership
rules
of
the
social
media/blog
sites
that
we
use
all
the
9me
(i.e.
Facebook,
Twi^er,
Wordpress)?
We
never
read
the
fine
print
or
if
we
do
we
don’t
understand
it.
What
should
we
look
for
and
be
aware
of
to
protect
our
crea9ve
rights.
A:
As
of
wri9ng:
§ You
own
your
content
on
Twi^er
and
Wordpress.
§ Facebook
has
a
license
to
all
your
content
un9l
your
account
is
deleted,
unless
any
content
is
shared
with
friends.
§ Pinterest
has
a
perpetual,
worldwide
license
to
your
content.

36. Ques<on
5
(con<nued)
A:
Fine
print
may
be
boring,
but
you
have
to
read
each
website’s
terms
of
use
to
determine
what
rights,
if
any,
you
are
giving
the
service
provider
in
respect
of
your
content.
Given
that
each
service
provider’s
terms
of
use
vary,
you
have
to
read
the
en9re
document
to
appreciate
what
you
are
getng
into.
There
are
unfortunately
no
shortcuts.

37. Ques<on
6
Q:
I
have
a
few
older
design
projects
from
school
where
I
don't
know
where
I
found
the
images,
and
they
are
currently
online.
If
I
wrote
a
sentence
saying
it
is
student
work,
is
this
enough?
A.
Unfortunately,
no.
There
is
no
copyright
infringement
excep9on
in
that
case.

38. Ques<on
7
Q:
I
have
a
piece
in
my
poruolio
that
was
created
using
a
collage
of
images
from
magazines,
and
then
manipulated
in
photoshop.
Can
I
s9ll
have
this
piece
in
my
poruolio
as
student
work
even
if
I
don't
have
the
copyright
of
the
magazine
images?
A.
Unfortunately,
no,
unless
the
collage
relates
to
cri9cism/
review
and
the
author
a^ribu9on
informa9on
in
ques9on
3
is
included.
Otherwise,
it
is
copyright,
and
poten9ally,
moral
rights
infringement
as
well.

39. Ques<on
7
Q:
I
have
a
piece
in
my
poruolio
that
was
created
using
a
collage
of
images
from
magazines,
and
then
manipulated
in
Photoshop.
Can
I
s9ll
have
this
piece
in
my
poruolio
as
student
work
even
if
I
don't
have
the
copyright
of
the
magazine
images?
A.
Unfortunately,
no,
unless
the
collage
relates
to
cri9cism/review
and
the
author
a^ribu9on
informa9on
in
ques9on
3
is
included.
Otherwise,
it
is
copyright,
and
poten9ally,
moral
rights
infringement
as
well.

40. Ques<on
8
Q:
Many
companies
(i.e.
ad
agencies,
marke9ng
&
communica9ons
firms)
and
i ns9tu9ons
are
encouraging,
even
requiring,
their
employees
to
tweet,
blog
etc.,
to
promote
their
brands.
Who
is
responsible
if
an
inappropriate
or
defamatory
tweet
goes
out
over
one
of
these
"official"
feeds
-­‐
the
employer
or
the
employee?

41. Ques<on
8
A:
It
depends.
§ Employers
may
be
liable
for
representa9ons
made
in
the
“scope
of
employment”.
§ Statements
made
on
an
employee’s
personal
9me/account
may
be
a^ributed
to
employer.
§ But
the
employee
may
be
liable
if
the
ac9vity
was
not
authorized.
Cri9cal
to
have
policies
in
place
–
and
a
paper
trail
showing
what
content
was
authorized
–
to
protect
employees
and
employers.

42. Ques<on
9
Q:
True
story:
employees
of
one
such
company
have
recently
been
reprimanded
(or
more)
for
things
they
have
wri^en
or
images
that
have
appeared
in
their
personal
blogs,
Facebook
or
Twi^er
accounts.
Example:
Marke9ng
person,
who
works
for
an
agency
that
has
a
major
beer
company
as
a
client,
posts
a
picture
taken
at
a
birthday
party
in
a
bar
one
night.
The
bo^les
of
beer
on
the
table
in
this
picture
are
not
the
client's
brand.
How
much
control
does
your
employer
legally
have
over
your
social
media
life
outside
of
the
office?

43. Ques<on
9
A:
From
a
labour
and
employment
lawyer…
§ If
non-­‐union
employee,
more
control
than
you
think.
§ If
your
outside
of
work
ac9vi9es
nega9vely
impact
the
business,
can
lead
to
dismissal.
But
how
likely
that
the
photos
would
nega9vely
impact
the
business
in
this
case?

44. Ques<on
9
A:
§ Ul9mately,
in
this
case,
would
need
to
prove
that
you
were
construc9vely
dismissed
and
sue
for
construc9ve
dismissal
–
which
would
require
quitng
your
job.
Li9ga9on
is
expensive
and
no
guarantee
you
would
win.

45. Thank
you…Ques<ons?
Lorraine
M.
Fleck
Barrister
&
Solicitor
|
Trade-­‐mark
Agent
E-­‐mail
|
lfleck@hofferadler.com
Website
|
www.hofferadler.com
Blog
|
www.ipaddressblog.com
|@
HofferAdler
@lorrainefleck

46. Canadian
Copyright
Law:
A
Primer
Lorraine
M.
Fleck
Web
Design
Graduate
Cer9ficate
Course
Sheridan
Ins9tute
of
Technology
and
Advanced
Learning
March
9,
2012
These
slides
do
not
cons9tute
legal
advice.