What can be protected by copyright?

There are three requirements that must be met before something can be protected by copyright: first, it must be appropriate subject matter; second, it must be sufficiently original; and third, the author or maker must have citizenship or residence in a treaty country.

Subject matter

The types of subject matter eligible for copyright protection are listed in section 5(1) of the Copyright Act:

  • literary works
  • dramatic works
  • musical works
  • artistic works

These types of works are generally defined in the Copyright Act, and on occasion courts have had an opportunity to further refine these definitions.

A \”literary work\” generally refers expressions in print or in writing. It includes tables, computer programs, and compilations of literary works. Therefore, it includes written or printed knitting instructions.

A \”dramatic work\” includes any piece for recitation, choreographic work or mime, where the scenic arrangement or the form of acting is fixed in writing; any cinematographic work; and any compilation of dramatic works.

A \”musical work\” means any work of music or musical composition, with or without words, including any compilation of works of music or musical composition.

An \”artistic work\” includes paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works.

What is meant by \”artistic\”, however, is not completely resolved. If a work can be defined as one of the types listed above (like a photograph or a drawing), then a court would likely consider it to be an artistic work. However, sometimes the courts have required that a work possess some type of aesthetic appeal or that the reason for its creation must be for providing some kind of aesthetic enjoyment.

The definition of a \”work of artistic craftsmanship\”, which is one of the types of artistic works listed above, also is not absolutely settled in case law. It can include a chair or a quilt, but probably not mass-produced items. One view is that for a work to be of artistic craftsmanship, it must have been produced using the special skill and knowledge of a type employed by an artisan. An article of clothing (such as a knitted garment), therefore, might be considered to be a work of artistic craftsmanship, and therefore an artistic work.

Whatever it is that is protected by copyright, it must be a form of expression, not merely an idea. For example, if you tell your friends about a marvellous idea you had, you cannot use copyright law to prevent anyone from exploiting that idea themselves. A technique is not protectable by copyright, because it does not fall into one of the classes of works which is protected. It is not the expression of an idea; rather, it is a concept of carrying out an action. However, if instructions for working the technique were reduced to writing or videotaped, the written instructions and the cinematographic work may be protected by copyright.

Originality

Section 5(1) of the Copyright Act specifies that copyright subsists in every \”original\” literary, dramatic, musical and artistic work. \”Original\” is not the same as \”new\” or \”unique\”. It is not necessary for a work to be unique and the first of its kind in the world to be an original work protected by copyright. It is enough that the author(s) came up with the work himself (or themselves) and did not copy it.

If two people independently write the same poem or paint the same picture, then they may both have copyright in the work. If two people write different stories based on the same theme of star-crossed lovers whose feuding families cause them to keep their marriage secret, they may both have copyright in their own stories.

The best definition of an \”original\” in Canadian law is one that requires skill, judgment, and labour to create. There must be some element of human input into the creation of a work, which is beyond mere routine task. Trivial works, such as titles, brief instructions, advertising phrases, or minor changes to a pre-existing work, are generally not original enough to merit copyright on their own.

There are no bright dividing lines between what is \”original\” and what is not. It would be unfair to extend copyright protection to the point that an author\’s copyright would capture any work that was based on his own. After all, it is possible to be inspired by another person\’s work and follow similar themes without copying the original expression. Therefore, originality is bound by the resources commonly available to others creating similar works. For example, the use of stripes, leaves, or fruit designs on a garment is merely a concept and cannot be protected. These features are commonly available to others designing garments. However, the particular arrangement of the strips, leaves, or fruit designs on a garment may be sufficiently original to merit copyright protection.

Citizenship or residence

The Copyright Act also specifies that the author of the work, at the date the work was created, must be either:

  • a citizen,
  • a subject, or
  • normally resident in a \”treaty country\”.

A \”treaty country\” is a country that is a member of or party to the Berne Convention, the World Trade Organization, or the Universal Copyright Convention. Both Canada and the United States are parties or members to all three.

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