Written by Sarah Zivoin.
Copyright protects the original expression of ideas in copyright works – not ideas on their own. Thoughts cannot be protected except when in a fixed form, e.g., prose, poetry or a song on paper, in a sound recording or on any other medium, or even just saved on a disc or computer drive. It is the entirety of that original expression that is protected as a work or part of a work, not just a bar within a musical composition or a phrase in an article. To be original, it does not need to be unique or novel. The author of the work needs to have exercised their skill and judgment when creating it. The level of skill and judgment to create an original work is not high – merely a level of intellectual effort that cannot be so trivial so as to just insignificantly change someone else’s existing work.
Works that meet the conditions of expression, fixation and originality to qualify for copyright protection are categorized by Canada’s Copyright Act into the following types:
- literary work includes any work that is expressed in writing, e.g., works of fiction and non-fiction, articles, poems and plays (also computer programs and tables), or a compilation of literary works.
- dramatic work includes the scenic arrangement or acting form of any work for performance, which is fixed in writing or otherwise but does not need words, including any piece for recitation, choreographic work, mime and cinematographic work (e.g., a television show or motion picture), or a compilation of dramatic works.
- musical work means any work of music or musical composition, with or without musical notation and with or without lyrics or other words, or a compilation of musical works.
- artistic work “includes paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, or a compilation of artistic works.”
In addition to the full range of copyright rights for the customary “works” described above, some copyright rights are also now recognized for sound recordings, communication signals (e.g., broadcasts) and performer’s performances. The newer special copyrights in these three categories are sometimes called “neighbouring rights” to distinguish them from works.
An artistic work does not need to fall into one of the above-listed examples in the definition of artistic work quoted above from the Copyright Act to receive copyright protection. It may be analogous or comparable to any of those examples or, in any case, protected if the creator’s intent is to create a work to appeal to artistic sensibilities. Copyright protection does not generally extend to include designs of useful articles or things made by hand, tool or machine. If the design is for an article that is reproduced more than 50 times, such as a kettle, the design does not have copyright protection as an artistic work, subject to some exceptions, for example, a shaped dish with an original photograph applied to its surface. Embodied designs instead may receive protection under Canada’s Industrial Design Act, which has its own regulations and rules.
How your work is classified may impact the type of rights you have when exercising your copyright in it. For example, if you have a copyright in a musical work, you have the right to rent out a sound recording of it. If you are uncertain what rights you may have, you should consult a legal professional or an organization representing professional creators.
This article is informational and not intended as a substitute for legal advice.
