CANADA Law and Practice Contributed by: Casey Chisick, Steven Kennedy, Karen MacDonald, Jessica Zagar, Dian Howard and Steven Henderson, Cassels Brock & Blackwell LLP
Originality is not defined in the Copyright Act. The Supreme Court of Canada has held that, for a work to be “original”, it must be more than a mere copy of another work. However, it need not be creative, in the sense of being novel or unique. Rather, it must be an exercise of skill and judgement that involves intellectual effort that is not so trivial that it could be characterised as a purely mechanical exercise. To attract copyright protection, the origi - nal expression must also be fixed – that is, expressed to some extent in some material form, capable of identification and having a more or less permanent endurance. The work must also be sufficiently connected to Canada or a treaty country (that is, a country that is a party to the Berne Convention, the UCC, or the WIPO Copyright Treaty or is a World Trade Organization member), by virtue either of the author’s citizenship or residency when the work was created or of the place of first publication. Copyright also subsists in other subject mat - ter, namely performers’ performances, sound recordings, and communication signals. Each has its own statutory requirements for protec - tion. 3.3 Copyright Authorship The Copyright Act does not define an “author”. Generally, the author of a work is the person who created it through the exercise of their skill and judgement. Since the term of copyright protec - tion in a work is tied to the year of the author’s death, the author must be a natural person. Parliament and the courts have not yet consid - ered whether AI-generated works are eligible for copyright protection. It is unlikely that entirely AI-generated works are protectable under the
current Copyright Act because they are not cre - ated by a human “author”. However, it is pos - sible that AI-assisted works may be protectable depending on the level of human involvement. Joint Authorship A work of joint authorship is a work produced by the collaboration of two or more authors in which the contributions of the authors are not distinct from each other. In the absence of an agree - ment to the contrary, the joint authors’ owner - ship interests in the work will be equal. A joint author cannot grant a licence to exploit the work without the consent of the other joint authors. Works Made in the Course of Employment Where the author of a work was employed under a contract of service or apprenticeship and the work was made in the course of their employ - ment, the employer will be the first owner of the copyright in that work absent any agreement to the contrary. However, the employee will remain the author. Canada does not have a work-made-for-hire regime. To transfer copyright ownership, an independent contractor must make a valid writ - ten assignment of the copyright to any works they create. 3.4 Copyright Rights Copyright in a work means the sole right to do or to authorise another person to do any of the following: • to produce or reproduce the work, or any substantial part of it, in any material form whatever; • to perform the work, or any substantial part of it, in public; • if the work is unpublished, to publish it or any substantial part of it;
41
CHAMBERS.COM
Powered by FlippingBook