COMPARATIVE GUIDE
9 January 2025

Copyright Comparative Guide

MC
Marks & Clerk

Contributor

Marks & Clerk is one of the UK’s foremost firms of Patent and Trade Mark Attorneys. Our attorneys and solicitors are wired directly into the UK’s leading business and innovation economies. Alongside this we have offices in 9 international locations covering the EU, Canada and Asia, meaning we offer clients the best possible service locally, nationally and internationally.
Copyright Comparative Guide for the jurisdiction of Canada, check out our comparative guides section to compare across multiple countries
Canada Intellectual Property

1 Legal framework

1.1 What legislative and regulatory provisions govern copyright in your jurisdiction?

The federal Copyright Act is the legislation that governs copyright in Canada.

1.2 Is there common law protection for copyright in your jurisdiction?

See question 2.2.

Copyright in Canada is statutorily protected. There are generally no common law rights; however, all original literary, dramatic, musical and artistic works, published or unpublished, are automatically protected under the Copyright Act upon creation, provided that:

  • the work is in a fixed form; and
  • the author(s) of said works meet the citizen or residency requirements under the Copyright Act.

1.3 Do any special regimes apply to specific types of works or subject matter (eg, software; data and databases; digital works; indigenous works)?

There is no separate (or sui generis) statutory protection for specific types of works or subject matter in Canada.

1.4 Which bilateral or multilateral instruments or treaties with effect in your jurisdiction (if any) have relevance for copyright protection?

Canada is a member of:

  • the Agreement on Trade-Related Aspects of Intellectual Property Rights;
  • the Berne Convention for the Protection of Literary and Artistic Works;
  • the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations;
  • the World Intellectual Property Organization Copyright Treaty; and
  • the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.

1.5 Which bodies are responsible for implementing and enforcing the copyright regime in your jurisdiction? What is their general approach in doing so?

The Federal Court has concurrent jurisdiction with provincial courts to hear and determine all proceedings, other than the prosecution of offences under Sections 42 and 43 (which deal with criminal offences and remedies), for the enforcement of a provision of the Copyright Act or of the civil remedies provided by the act. Only the Federal Court has jurisdiction to hear and determine proceedings related to Sections 42 and 43 of the act. See question 7.3 for more details about the criminal offences under the act.

Typically, copyright owners enforce their rights by commencing an action in the Federal Court or a provincial court. A copyright owner may also proceed by way of application in some circumstances, which is a paper-based procedure and is usually faster. See questions 7.4 and 7.6 for more details.

Collective licensing bodies are subject to the Copyright Act and are regulated, generally speaking, by the Canadian Copyright Board – an administrative tribunal created under the act. Some collective licensing bodies must submit proposed tariffs to the board, in both official languages, of all royalties to be collected. The board, after proper review and hearing from the parties, certifies the tariffs to be paid for a set period. The board may:

  • change the royalties or terms of any licence; and
  • resolve disputes between collectives and users when they cannot agree on licence terms.

Decisions of the board can be appealed to the Federal Court of Appeal.

Other collective licensing bodies may, but are not mandated to, file their proposed tariffs with the board for approval if the licensing body and the users cannot privately agree on terms.

2 Copyrightabilty

2.1 What types of works qualify for copyright protection in your jurisdiction?

See question 2.2.

As noted, copyright protection subsists in all original literary, dramatic, musical and artistic works, and original compilations of works and data, subject to the author(s) of said works meeting certain citizen or residency requirements. The specific types of works included in the categories are non-exhaustive.

Artistic works include:

  • paintings;
  • drawings;
  • maps;
  • charts;
  • plans;
  • photographs;
  • engravings;
  • sculptures;
  • works of artistic craftsmanship; and
  • architectural works.

Logos may be protected as artistic works.

Literary works include:

  • books;
  • tables;
  • computer programs; and
  • packaging and advertising text.

A ‘computer program' is defined as a set of instructions or statements, expressed, fixed, embodied or stored in any manner, that is to be used directly or indirectly in a computer in order to bring about a specific result.

Dramatic works include:

  • any piece for recitation, choreographic work or mime, the scenic arrangement or acting form of which is fixed in writing or otherwise; and
  • any cinematographic work.

Plays, choreographic works and mimes may be protected as dramatic works, provided that the scenic arrangement or acting form is fixed in writing or otherwise fixed.

‘Cinematographic works' are defined as including any work expressed by any process analogous to cinematography, whether or not accompanied by a soundtrack.

‘Musical works' are defined as all works of music or musical composition, with or without words or lyrics.

Compilations include:

  • the selection or arrangements of original works; and
  • databases or other original selections or arrangements of data.

Originality must be shown with respect to the selection or arrangement of such works or data.

2.2 What are the requirements for copyrightability?

On the date of making the work, the author must be a citizen or resident of:

  • Canada; or
  • any other treaty country – that is, a member of:
    • the Berne Convention;
    • the World Intellectual Property Organization Copyright Treaty;
    • the Universal Copyright Convention; or
    • the World Trade Organization.

A work must be original, meaning that:

  • it was not copied from another work; and
  • the author exercised skill and judgement in creating it.

‘Skill' requires the use of an author's knowledge, developed aptitude or practised ability in producing the work. ‘Judgement' requires the use of an author's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgement will necessarily involve intellectual effort. The skill and judgement must not be so trivial that it could be characterised as a mechanical exercise (eg, changing the font to produce another work).

2.3 What types of works are ineligible for copyright protection in your jurisdiction?

  • Unoriginal works are not protected.
  • Works that have fallen into the public domain are not protected.
  • Works that are authored by authors that do not meet the citizenship or residency requirements are not protected.

While copyright can subsist in designs applied to a useful article or artistic works from which a design is derived, once the useful article is mass produced (ie, in a quantity of 50 or more), copyright may no longer be enforceable. There are exceptions to this rule. The copyright will remain enforceable in:

  • graphic or photographic representations applied to the face of an article;
  • a trademark or label;
  • woven or knitted materials, or materials suitable for piece goods, surface coverings or making clothing;
  • architectural works/models of a building;
  • a representation of a real or fictitious being, event or place applied to the article; or
  • articles sold as a set, if fewer than 50 sets are made.

3 Scope of protection

3.1 What legal rights are conferred by copyright in your jurisdiction?

The Copyright Act gives copyright owners the exclusive right to:

  • produce or reproduce the work, in whole or substantial part, in any material form;
  • perform the work, in whole or substantial part, in public;
  • publish the work, in whole or substantial part;
  • translate the work;
  • convert one type of work into another (eg, a novel into a play);
  • make a sound recording or a film out of a literary, dramatic or musical work;
  • communicate the work to the public by telecommunication;
  • publicly exhibit artistic works created after 7 June 1988, for purposes other than rent or sale;
  • rent out a computer program or a sound recording;
  • where the work is in a tangible object, sell or transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the copyright owner's authorisation;
  • make the work available online to the public; and
  • authorise any of these acts.

Performers have rights in their performances to:

  • first fix them on a recording and make copies of the recording;
  • communicate live performances by telecommunication;
  • perform them in public;
  • rent out recordings of the performances;
  • make such sound recordings available to the public through online on-demand services;
  • if the sound recording is fixed in a tangible object, sell/transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside of Canada with the performer/copyright owner's authorisation; and
  • authorise any of these activities.

Makers of sound recordings have the right to:

  • first publish the sound recording;
  • reproduce it in any material form;
  • rent it out; and
  • authorise any of these acts.

Broadcasters have the right in respect of their communication signals to:

  • record the signal;
  • make copies of that recording;
  • authorise another broadcaster to retransmit the signal to the public simultaneously with its broadcast;
  • perform a television communication signal in a place open to the public if an entrance fee is paid; and
  • authorise any of these acts.

In addition, it is prohibited under the Copyright Act (with some exceptions) to:

  • circumvent a technological protection measure (TPM);
  • offer, provide or market services that are primarily for the purpose of circumventing a TPM; or
  • provide or market any technology which is designed or produced primarily for the purpose of circumventing a TPM.

It is further prohibited for a person to:

  • knowingly and without proper consent remove or alter electronic rights management information (ie, information identifying the work, its author or another rights holder) if they knew or ought to have known that the alteration or removal of this information would conceal or facilitate infringement; or
  • knowingly sell, rent, distribute or telecommunicate to the public a work where such information has been altered or deleted in violation of the Copyright Act.

3.2 Are there special rules that limit the scope of protection for works that are useful/utilitarian/functional in your jurisdiction?

It is not a copyright infringement to copy, reproduce, reverse engineer or make drawings of totally functional articles where all the design features are dictated solely by the article's utilitarian features (eg, a car valve).

Under the Copyright Act, where a design is applied to a useful article (ie, an article that has some function other than merely serving as a substrate for artistic or literary matter) and that article is mass produced (ie, where 50 or more copies have been made):

  • the copyright in that design on the article becomes unenforceable; and
  • the only protection for the article will be through registration under the Industrial Design Act.

The exceptions to this rule include:

  • graphics applied to the face of articles;
  • trademarks;
  • representations of people or characters;
  • textiles; and
  • buildings.

See question 2.3 for further details.

3.3 Are neighbouring rights protected in your jurisdiction? If so, please outline the applicable regime.

Neighbouring copyrights extend to:

  • performers' performances;
  • communication signals; and
  • sound recordings.

3.4 Are moral rights protected in your jurisdiction? If so, please outline the applicable regime.

Authors and performers have moral rights in their works and performances, respectively. The right to the integrity of the work/performance is infringed if the work or performance, to the prejudice of the author's or performer's reputation, is:

  • distorted, mutilated or otherwise modified; or
  • used in association with a product, service, cause or institution.

They also have the right, where reasonable:

  • to be associated/credited with the work/performance by name or by pseudonym; or
  • to have their name removed from the work/performance.

Moral rights exist as long as the associated copyright exists and can be bequeathed to the author's/performer's heirs. Moral rights cannot be assigned but may be waived. The same remedies are available for moral rights infringement as for copyright – namely:

  • damages;
  • injunctions; and
  • delivery up of infringing copies.

3.5 Are any blanket exceptions to copyright infringement (eg, fair use/dealing) or specific exceptions to copyright infringement (eg, backup copies, interoperability, right of repair) available in your jurisdiction? If so, under what conditions do they apply?

There are numerous general and specific exceptions to infringement under the Copyright Act. The broadest exceptions –referred to by the Supreme Court of Canada (SCC) as ‘users' rights', not defences – are the fair dealing provisions, which permit persons to make a fair use of copyright works for the purposes of:

  • research;
  • private study;
  • education;
  • parody; or
  • satire.

Criticism and review and news reporting are also authorised as fair dealing purposes, provided that the source and, if included in the source, the author's, maker's or performer's name are credited.

Even if the dealing is for a permitted purpose, it must also be fair. In determining this second issue, the courts look at the following factors:

  • the purpose of the use;
  • the nature of the use (commercial versus non-commercial);
  • the scope of the use (amount copied, how many copies made);
  • alternatives to the use;
  • the nature of the work; and
  • the effect of the use on the market for the copied work.

Educational institutions, libraries, archives and museums are also granted a series of narrower exemptions from infringement for specific uses of works. Likewise, certain acts are permitted for religious organisations and charities or fraternal organisations.

There are also several infringement exceptions for individuals making non-commercial and personal use of works, including for the purpose of:

  • time-shifting;
  • transferring from one media to another;
  • creating online user-generated content which contains third-party works without any motive of gain; or
  • making additional copies of computer programs for back-up purposes or to make the program compatible with another program.

There are restrictions on some of these personal use exemptions, including not circumventing TPMs (‘digital locks') to make these permitted uses.

Incidental, non-deliberate inclusion is deemed not to infringe. There are also infringement exceptions for certain activities – for example:

  • photographing architectural works such as buildings; and
  • reading or reciting in public a reasonable extract from a published work.

Finally, in appropriate cases, the equitable defences of laches and estoppel are also available against infringement claims.

3.6 How are derivative works protected in your jurisdiction? Who is the owner of a derivative work?

The Copyright Act does not define ‘derivative works'. However, the SCC has stated that "the words ‘produce or reproduce the work … in any material form whatever' in s. 3(1) confers on artists and authors the exclusive right to control the preparation of derivative works" (see Théberge v Galerie d'Art du Petit Champlain inc, 2002 SCC 34). In that decision, the SCC also noted that the scope of protection under Section 3(1) of the act:

  • is not as expansive as that provided in the United States; and
  • does not extend to works which are "recast, transformed, or adapted".

Therefore, to the extent that a derivative work is protected under copyright in Canada, the owner of the derivative work is the owner of the original work from which it was created.

3.7 Can copyrightable works also be protected by other IP rights (eg, trademarks and designs) in your jurisdiction?

A work that is eligible for copyright protection in Canada can also be protected under the Trademarks Act, provided that it meets the requirements for trademark protection thereunder.

Copyright can subsist in designs applied to a useful article; however, once that article is mass produced (ie, where 50 or more copies have been made):

  • the copyright in that design on the article becomes unenforceable; and
  • the only protection for the article will be through registration under the Industrial Design Act, subject to limited exceptions.

See questions 2.3 and 3.2 for details.

4 Duration, publication and renewal

4.1 When does copyright protection in a work begin and end in your jurisdiction? Are there any proactive maintenance or other requirements to benefit from a full term of protection?

The general term of copyright in Canada is the life of the last living author plus 70 years following the end of the calendar year in which the author dies. Prior to 30 December 2022, when amendments to the relevant provision of the Copyright Act came into effect, the general term of copyright protection was the life of the last living author plus 50 years following the end of the calendar year in which the author dies.

There are special rules for the term for:

  • anonymous/pseudonymous works; and
  • posthumous works.

Copyright in works owned by the Crown subsists for 50 years following the end of the calendar year in which the work was first published.

Copyright in a performer's performance generally subsists for 50 years from the end of the calendar year in which the performance occurs. If, during the term, the performance is fixed on a sound recording, copyright subsists for 70 years from the end of the calendar year in which the fixation occurs. If, during the term, that sound recording is then published, copyright subsists until the end of the calendar year in which the sound recording was first published, plus 75 years or 100 years after the end of the calendar year in which the first fixation occurred, whichever is earlier. Where the performer authorised the embodiment of his or her performance in a cinematographic work, he or she may no longer exercise, in relation to the performance embodied in that cinematographic work, his or her copyright in the performance.

Copyright in a sound recording subsists for 70 years from the end of the calendar year in which it was recorded. If, during that term, the sound recording is published, copyright subsists until the earlier of:

  • 75 years from the end of the calendar year in which the first publication occurred; or
  • the end of 100 years from the end of the year in which the sound recording was made.

Except for cinematographic works in which the arrangement or acting form or the combination of incidents represented gives the work a dramatic character, copyright in a cinematographic work or a compilation of cinematographic works subsists until the end of 70 years following the end of the calendar year in which the cinematographic work or the compilation is made. However, if the cinematographic work or the compilation is published before the copyright expires, the copyright continues until the earlier of:

  • the end of 75 years following the end of the calendar year in which the first publication occurs; and
  • 100 years following the end of the calendar year in which the cinematographic work or the compilation was made.

4.2 What is required for a work to be published in your jurisdiction?

For the purposes of the Copyright Act, ‘publication' in relation to works means:

  • making copies of a work available to the public; but
  • does not include:
    • the performance of the work in public; or
    • the communication of the work to the public by telecommunication.

In CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13, the Supreme Court of Canada (SCC) ruled that the communication of a work to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public. Therefore, works that are made available in this fashion are not ‘published' for the purposes of the act.

In Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, the SCC held that making a game available online for download did not constitute a ‘communication' of the work for the purposes of the Copyright Act, as it was ‘an act of copying', with the copy being delivered through the vehicle of telecommunication.

It later affirmed this position in Entertainment Software Association and Entertainment Software Association of Canada, 2022 SCC 30, holding that:

  • making works available for on-demand downloading engages the right of reproduction; and
  • making works available via on-demand streaming engages the right of performance.

4.3 Can copyright protection be renewed or extended in your jurisdiction? If so, how?

No, copyright protection cannot be renewed or extended in Canada.

5 Ownership

5.1 Who can qualify as the owner of a copyrighted work in your jurisdiction? Are there any provisions that deem an owner to be a person other than the author?

Generally speaking, the first owner of the copyright is the author. The ‘author' is not defined in the Copyright Act but will generally be considered the individual(s) who actually created the work through an exercise of skill and judgement. There are exceptions – most notably, works made in the course of employment by employees. See question 5.4 for details.

Also, the owner of copyright in a sound recording is its ‘maker' – that is, the person by whom the arrangements necessary for the making of the recording are undertaken. This is typically the record producer or record label.

Broadcasters own the copyright in their communication signals.

Finally, copyright in works created or published under the direction or control of the Crown is owned by the government.

5.2 Is corporate, joint or collective ownership of copyrighted works recognised in your jurisdiction? If so, in what circumstances?

The concept of joint authorship/ownership exists under the Copyright Act. A work of joint authorship is created where there is a collaboration of two or more authors in which the contribution of one author is not distinct from that of the other author(s).

While not completely settled in Canadian law, it is generally accepted that joint authors own the work in equal shares as tenants in common as opposed to joint tenants. Therefore, generally speaking, one author cannot exclusively license or assign the copyright without dealing with the other joint authors/owners.

A corporation may also own copyright in Canada.

5.3 Can ownership of a copyrighted work be transferred in your jurisdiction? If so, how? Are any copyrights, moral rights, neighbouring or related rights inalienable? If so, how can such rights be dealt with (eg, exclusive licence, waivers)?

Copyright can be assigned in Canada; however, moral rights cannot be assigned but may be waived. Exclusive licences are also available. Both assignments and exclusive licences must be in writing and signed by the owner of the copyright or their duly authorised agent. See question 8.6.

As noted, in cases of joint authorship, generally speaking, one author cannot exclusively license or assign the copyright without dealing with the other joint authors/owners. See question 5.2 for details.

5.4 Where a work is created by an employee, what are the rules regarding ownership? What measures can an employer take to secure its rights to intellectual property created under an employment relationship?

Copyright in works created by employees (ie, those working under a ‘contract of service') within the course of their employment will automatically be owned by the employer unless there is an agreement to the contrary. There is no statutory definition of ‘contract of service' and the courts have looked at many common law factors in defining this term – primarily whether the employer has direct control over the employee's work. Also, to be in the course of the employee's employment, generally the work must fall within the scope of the employee's duties. Despite this ownership structure, employees that author articles or other contributions to newspapers, magazines and similar periodicals have a right to restrain publication of their work other than as part of the newspaper, magazine or periodical, unless there is an agreement to the contrary.

5.5 Where a work is created by a contractor, what are the rules regarding ownership? What measures can a hiring party take to secure its rights to intellectual property created under a contracting relationship?

Unless there is a written assignment signed by the author, copyright in the work still automatically vests first in the author. Therefore, if a hiring party wishes to secure the copyright (and other IP rights) of a work created under a contracting relationship, they must obtain a written assignment from the author, either separately or via the governing contract. In such cases, the hiring party should also obtain a written waiver of moral rights from the author.

6 Registration

6.1 Is there a copyright registration system in your jurisdiction? If so, is registration mandatory?

It is possible, but not mandatory, to register copyrights in Canada.

6.2 What are the advantages of registration?

The benefits of registration are as follows:

  • the registration certificate is considered prima facie evidence of copyright subsistence in the work and copyright ownership; and
  • if the work is registered, an infringer cannot rely on a defence of ‘innocent infringement' which, if successful, limits an owner's remedy to an injunction.

6.3 What legal presumptions, rights and entitlements are conferred by copyright registration?

See question 6.2.

6.4 What are the formal, procedural and substantive requirements for registration?

In order to be registrable, a work must be eligible for copyright protection under the Copyright Act. As noted, copyright protection subsists in every original literary, dramatic, musical and artistic works, and original compilations of works and data, subject to the author(s) of said works meeting certain citizen or residency requirements. See questions 2.1 and 2.2 for details.

Registration requires:

  • duly completing the appropriate application – that is:
    • an application for registration of a copyright in a work; or
    • an application for a registration in a performer's performance, sound recording or communication signal; and
  • paying the applicable registration fee.

An application generally involves:

  • entering the title of the work;
  • selecting the category/categories that describe the work (ie, literary, musical, artistic or dramatic; or performer's performance, sound recording or communication signal);
  • identifying whether the work has been published and entering the date and country of publication, if applicable;
  • entering the author's details;
  • completing a declaration that the applicant is:
    • the author of the work;
    • the owner of the copyright in the work;
    • an assignee of the copyright; or
    • a person to whom an interest in the copyright has been granted by licence; and
  • naming the representative agent for the work, if applicable.

6.5 What fees does the governing body charge for registration? Do these vary depending on the type of work?

The applicable fees, as of September 2024, are:

  • C$63 for an application to register a copyright (provided that the application and fee are submitted online); and
  • C$81 for registration of an assignment or licence of a copyright.

Where an application and fee are not submitted online to the Copyright Office, an additional C$18 is required.

6.6 Can copyright registration be refused? If so, on what grounds and what is the impact of refusal?

The Canadian Copyright Office does not examine applications and generally issues registrations provided that an application is duly completed.

It is possible for a party to challenge a copyright registration through an application or action in court. While provincial courts can determine that there is no copyright in a work, only the Federal Court can order a registration to be expunged from the Canadian Copyright Register. Such decisions can be appealed to the applicable appeal court (ie, the Federal Court of Appeal or provincial appeal courts). See question 7.11 for more details.

6.7 If copyright registration is refused, can the applicant appeal? If so, how?

Not applicable. See question 6.6 for details.

6.8 Can the reviewing body's decision be appealed? If so, how?

Not applicable. See question 6.6 for details.

7 Enforcement and remedies

7.1 What constitutes copyright infringement in your jurisdiction?

In Canada, it is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that the owner of the copyright has the exclusive right to do under the Copyright Act. See question 7.2 for details related to secondary infringement in Canada.

7.2 Is secondary liability for copyright infringement recognised in your jurisdiction? If so, how is it incurred? Are safe harbours afforded to intermediaries or others? If so, what are the requirements for such safe harbours to apply?

It is an infringement for any person to sell or rent, distribute to such an extent as to affect prejudicially the copyright owner, by way of trade distribute, offer for sale or rent, or exhibit in public, possess or import into Canada or export from Canada for any of these purposes copies of a work, sound recording, performer's performance on a sound recording or communication signal if that person knows or should have known that this act would infringe copyright or would infringe copyright if made in Canada by the person who made it.

The Supreme Court of Canada in CCH Canadian Ltd v Law Society of Upper Canada stated that there are three elements to secondary infringement:

  • there must be a primary infringement;
  • the secondary infringer should have known that it was dealing with an infringing item; and
  • the secondary infringer must have sold, distributed or exposed for sale the infringing items.

Generally, intermediaries have safe harbour in Canada if they merely provide the technical means by which others infringe copyright. See question 10.3 for more details.

7.3 Is criminal enforcement of copyright law possible in your jurisdiction?

Under the Copyright Act, it is a criminal offence to knowingly:

  • make infringing copies of a work or other copyright-protected subject matter for sale or rental;
  • sell or rent such infringing copies;
  • distribute such copies for the purposes of trade or to such an extent as to prejudicially affect the copyright owner;
  • publicly exhibit such infringing copies by way of trade; and
  • import or export or attempt to export such infringing copies into or out of Canada for sale or rental.

7.4 What is the statute of limitations for copyright infringement?

An action must be commenced within three years of the point at which the plaintiff knows or could be reasonably expected to know that the infringement has taken place. However, whenever another infringing copy is made, it is considered to be a new infringement, which starts the three-year limitation period running again. Therefore, in cases of ongoing infringement over several years, an action will not be statute barred by the limitation period, although the owner may be unable to obtain remedies for infringements that occurred more than three years before the action was commenced.

7.5 Who has standing to bring copyright claims?

A copyright owner can bring a claim for copyright infringement. In addition, assignees and exclusive licensees may sue for copyright infringement. See question 8.2.

Under certain circumstances, the ‘exclusive distributor' of a book, as defined under the Copyright Act, may prohibit the import, sale, rental, distribution by way of trade, offer for sale or rental or public exhibition of books which were printed with the consent of the copyright owner in a foreign country.

7.6 What is the procedure for pursuing claims for copyright infringement, including usual timeframes for resolution? Are there any streamlined administrative procedures for handling disputes?

A claim for copyright infringement can be initiated by filing an action in the Federal Court or a provincial court. In some cases, it is possible to proceed by way of application (which is a paper-based procedure).

Prosecuting an infringement action from filing the claim to trial typically takes a minimum of two years, often longer. The courts will hold status reviews to move proceedings forward to either settlement or trial, but often it still takes years to complete the various stages of litigation and a trial. There are strategies that can be implemented in order to move through the court faster, including by proceeding by way of application.

7.7 What fees and costs are usually incurred in infringement actions?

The costs vary depending on how many motions or other interlocutory steps arise in the litigation. Typically, the cost of taking an action to trial will be in the range of C$150,000 to C$400,000. Most actions, however, settle before trial.

7.8 What typical defences are available to a defendant in copyright litigation?

See question 3.5.

7.9 What civil and criminal remedies are available against copyright infringement in your jurisdiction? Are customs enforcement measures available to halt the import or export of infringing works?

Damages and interim, interlocutory and permanent injunctions are available.

Under the Copyright Act, an infringer is liable to pay:

  • the damages that the owner has suffered due to the infringement; and
  • the infringer's profits that were not taken into account when calculating damages.

In appropriate cases of egregious behaviour by an infringer, a court may also award punitive damages. Alternatively, a plaintiff can elect to receive statutory damages at any time prior to final judgment. See question 7.10 for more details.

The Canadian courts have adopted a three-step test for granting interlocutory injunctions:

  • the applicant must show there is a serious question to be tried;
  • the applicant must show that there would be irreparable harm to its own interests if an injunction were not issued; and
  • the court must determine, on a balance of convenience, which party would suffer the greater harm by ordering or refusing the injunction.

For permanent injunctions, the Canadian courts have adopted the following three-step test. The applicant must establish:

  • a conclusive infringement of its rights by way of a final adjudication in a cause of action of the claimed rights;
  • that damages or other alternative remedies would not be sufficient or adequate to address the wrongful conduct; and
  • that there is no impediment to the court's discretion to grant an injunction.

7.10 Are damages available for copyright infringement? Are statutory damages available, and if so, in what ranges? What factors will the court consider in determining the quantum of damages?

The Copyright Act sets statutory damages with respect to all infringements of a commercial nature for each work in the proceedings, in a range of not less than C$500 and not more than C$20,000, at the discretion of the court. Where the infringement is not commercial in nature, the range of statutory damages is reduced to not less than C$100 and not more than C$5,000, with respect to all infringements involved in the proceedings for all works.

In certain equitable circumstances, the act permits the court to further reduce the statutory damages awarded, per work, to below C$500 for commercial infringements.

7.11 What is the procedure for appealing a decision in copyright litigation?

Any decision of the Federal Court can be appealed to the Federal Court of Appeal, pending leave from the court. Appeals can be brought to challenge:

  • final decisions;
  • judgments on a question of law; or
  • interlocutory injunctions.

If a copyright action is brought in a provincial court, which in some instances also has copyright jurisdiction, an appeal can be brought to the relevant provincial appeal court.

7.12 Do any special enforcement regimes apply to specific types of works (eg, digital and online content) in your jurisdiction?

There is no separate (or sui generis) statutory protection for specific types of works or subject matter in Canada.

7.13 What measures can copyright owners take to help prevent infringement of their rights in your jurisdiction?

Registration of a copyright can provide certain benefits that assist in enforcement of copyright rights, including by:

  • acting as prima facie evidence of copyright subsistence in the work and copyright ownership; and
  • preventing an infringer from relying on a defence of ‘innocent infringement' which, if successful, limits an owner's remedy to an injunction.

8 Licensing

8.1 What types of copyright licences are available in your jurisdiction?

Copyright can be licensed exclusively or non-exclusively in Canada.

8.2 What terms do licences typically include (both express and/or implied licences)?

Copyright licences typically include express terms relating to:

  • scope;
  • term and termination;
  • jurisdiction;
  • whether the licence is exclusive or non-exclusive;
  • restrictions (eg, sublicensing);
  • royalty and licensing fees; and
  • provisions related to enforcement.

Exclusive licensees can sue for infringement in their own name, but non-exclusive licensees cannot.

It is generally accepted that joint authors own the work in equal shares as tenants in common as opposed to joint tenants. Therefore, generally speaking, one author cannot exclusively license or assign the copyright without dealing with the other joint authors/owners. See question 5.2.

8.3 Does your jurisdiction have collective management regimes for copyrights or other subject matter? If so, how does collective administration generally operate and who are the key players?

Numerous organisations in Canada are involved in the collective licensing of rights of copyright for specific types of works. The major collective licensing bodies in Canada are:

  • Access Copyright, which represents writers and publishers for the copying of literary materials;
  • the Society of Composers, Authors and Music Publishers, which administers public performance and telecommunication rights in musical works for composers and music publishers, and more recently reproduction rights as well;
  • the Canadian Musical Reproduction Rights Agency, which licenses reproduction rights, including synchronisation rights, in musical works for music publishers;
  • CONNECT Music Licensing, which licenses the reproduction of sound recordings and the reproduction and broadcast of music videos on behalf of record companies, producers and artists;
  • the Re:Sound Music Licensing Company, which collects royalties for performing artists and record companies concerning their performance rights; and
  • the ACTRA Performers' Rights Society, a division of the Alliance of Canadian Cinema, Television and Radio Artists, which collects royalties for recording artists.

There are also several collectives in the province of Quebec which administer similar rights in French language works.

8.4 Are compulsory licences recognised in your jurisdiction, including with respect to digital/online intermediaries? If so, what types are available and what are their key features?

Compulsory licences are not available for copyright in Canada.

8.5 Is there a formal system for establishing collective management tariffs? If so, please describe the framework for negotiating and establishing tariffs.

Some collective licensing bodies must submit proposed tariffs to the Copyright Board, in both official languages, of all royalties to be collected. The board, after proper review and hearing from the parties, certifies the tariffs to be paid for a set period. The board may change the royalties or terms of any licence.

Other collective licensing bodies may, but are not mandated to, file their proposed tariffs with the board for approval in the event that the licensing body and the users cannot privately agree on terms.

8.6 Can or must copyright licences be officially recorded in your jurisdiction?

A licence granting a proprietary interest in a copyright (eg, an exclusive license) must:

  • be in writing; and
  • be signed by the owner of the copyright or its duly authorised agent.

If the licence does not transfer a proprietary interest but merely permits actions by the licensee which would normally constitute infringements, the agreement need not be in writing.

8.7 Are there any specific requirements for the validity of a copyright licence in your jurisdiction? Are there any special provisions governing sub-licensing?

A licence granting a proprietary interest in a copyright must:

  • be in writing; and
  • be signed by the owner of the copyright or its duly authorised agent.

See question 8.6.

There are no special provisions under the Copyright Act relating to sub-licensing.

9 Protection of foreign copyright

9.1 Are foreign copyrighted works protected in your jurisdiction? If so, how and under what conditions (eg, rule of the shorter term)?

Canada is a member of the Berne Convention for the Protection of Literary and Artistic Works, which requires that Canada provide the same level of protection to works originating in one of the contracting states as it grants to works eligible for protection in Canada. Such protection:

  • must be provided without the need to comply with any formalities; and
  • is independent of the existence of protection in the country of origin of the work.

Pursuant to the Berne Convention, the protection of works that originate from contracting states may be denied once protection ceases in the country of origin, since Canada's term of protection under the Copyright Act is longer than the minimum term prescribed under the Berne Convention. However, at present, the act does not provide for a shorter term for such works.

9.2 What key concerns and considerations should be borne in mind by foreign copyright holders in seeking to protect their works in your jurisdiction?

While it is not required that a copyright be registered, a certificate of registration can offer certain advantages in Canada, such as:

  • serving as prima facie evidence of copyright subsistence in the work and copyright ownership; and
  • precluding a defence of ‘innocent infringement' by the infringer.

See questions 6.2 and 7.13.

With respect to online infringement, the Copyright Act provides for a ‘notice and notice' regime, as opposed to a notice and takedown regime as in the United States. The regime was implemented with the view of serving two main objectives: deterring online copyright infringement and balancing the rights and interests of all stakeholders in the copyright regime, including internet service providers (ISPs). While the regime aims to strike a balancing of rights, it can often be expensive for those who wish to enforce their rights, in addition to being frustrating.

The owner of a copyrighted work that has been infringed online can notify an ISP hosting such content of the claimed infringement in writing. The Copyright Act sets out the requirements as to what must be included in a written notice and what cannot be included. Once an ISP has received a compliant notice of infringement, two main statutory obligations are triggered:

  • the ISP must forward the notice to the alleged infringer electronically (after receiving any lawfully charged fees for doing so from the claimant) and provide confirmation to the claimant that it has done so – or an explanation for why it could not be forwarded – "as soon as feasible" after receiving the notice; and
  • the ISP must retain any records that would allow the identity of the alleged infringer to be determined. Records must be retained for a minimum of:
    • six months from the date on which the notice was received by the ISP; or
    • one year of that date where the claimant has notified the ISP that a proceeding has been initiated in respect of the infringement.

An ISP is not required to:

  • disclose the identity of the alleged infringer after receiving a notice; or
  • provide any other information to the claimant.

10 Trends and predictions

10.1 How would you describe the current copyright landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

Site-blocking orders are becoming more common in Canada. In 2022, the Federal Court acknowledged that dynamic site-blocking orders are available in Canada in its decision in Rogers Media Inc v John Doe 1, 2022 FC 775. In that case, the plaintiff media companies sought an interlocutory injunction requiring the third-party respondents – established Canadian ISPs – to block Internet Protocol (IP) addresses that host copyright-infringing pirate streams of live National Hockey League (NHL) broadcasts. The Federal Court issued an injunction directing the ISPs to block access to certain IP addresses identified in real time during NHL hockey matches for the 2001-2022 NHL season, which was the first of its kind in Canada.

On 9 July 2024, in Rogers Media Inc v John Doe 1, 2024 FC 1082, the Federal Court:

  • issued a two-year mandatory injunction requiring the third-party respondent ISPs to take certain steps to block access to IP addresses hosting unauthorised streams of the applicants' ‘protected live content' (ie, live NHL games, National Basketball League games and Premier League football matches);
  • issued a permanent injunction against the anonymous pirate defendants, permanently enjoining them from infringing the applicants' copyright in the protected live content; and
  • provided a mechanism to the applicants to update the definition of ‘protected live content' so as to capture other live sporting events for which the applicants might obtain ownership or licensing rights in the future within the scope of the orders.

The federal government has also launched public consultations to develop a modern copyright framework for artificial intelligence (AI) and the Internet of Things (IoT). Legislative amendments related to the issues identified in these consultations will likely be introduced in the near future, including amendments related to:

  • text and data mining (TDM);
  • authorship and ownership of works generated by AI; and
  • copyright infringement and liability regarding AI.

See question 10.2 for more details.

10.2 Have there been any recent legislative amendments or decisions involving copyright and generative AI, data or databases? If so, please summarise the current state of the law.

In 2021, the federal government of Canada launched a public consultation to develop a modern copyright framework for AI and the IoT. With respect to AI, the consultation paper covers three potential areas of reform:

  • TDM;
  • authorship and ownership of works generated by AI; and
  • copyright infringement and liability regarding AI.

With respect to the second issue identified in the 2021 consultation above, the government sought views from stakeholders on the following potential approaches and their potential impacts, noting the difficulties in differentiating human from non-human contributions to AI-assisted works:

  • Clarify that copyright protection apply only to works created by humans;
  • Attribute authorship of AI-generated works to the person that arranged for the work to be created; or
  • Create a new and unique set of rights for AI-generated works.

In 2023, the government launched a second consultation in order to:

  • build on the fact-finding work of the 2021 consultation (which received only 38 submissions); and
  • garner insight from stakeholders on the potential implications of generative AI tools on the copyright framework in Canada.

The 2023 consultation focused on fact-finding:

  • to inform copyright policy; and
  • in particular, to understand:
    • the impact of the development of AI on the creative industries; and
    • the economic impacts of the technology on Canadians.

In respect of the first issue, the 2023 consultation aimed to answer questions such as:

  • whether TDM activities are being conducted in Canada;
  • whether copyright licences are available for TDM activities, and if so, whether they meet the needs of those conducting such activities;
  • whether and to what extent rights holders are faced with challenges in licensing their works for TDM activities in Canada;
  • what level of remuneration would be appropriate for the use of a given work in TDM activities;
  • whether the government should amend the Copyright Act to clarify the scope of permissible TDM activities, what scope and safeguards should apply and what would be the expected impacts of exceptions to stakeholders' industries and activities; and
  • whether there should be any obligations on AI developers to keep records or disclose what copyright-protected content is used in the training of AI systems.

Other legislative developments related to AI include the introduction of the Artificial Intelligence and Data Act (AIDA) through Bill C-27. AIDA proposes to "set the foundation for the responsible design, development and deployment of AI systems that impact the lives of Canadians" and, if enacted, would be the first AI-specific regulatory framework in Canada.

As it will take time for AIDA to receive royal assent and for a regulatory framework to take effect, the government has published the Voluntary Code of Conduct on Advanced Generative AI Systems, which provides measures aimed at promoting:

  • accountability;
  • safety;
  • fairness and equity;
  • transparency;
  • human oversight and monitoring; and
  • validity and robustness.

The Voluntary Code of Conduct on Advanced Generative AI Systems is intended to:

  • provide a bridge to regulations under AIDA by setting out clear guidelines that can be implemented immediately; and
  • allow Canadian companies the opportunity to voluntarily demonstrate that they are developing and using generative AI systems responsibly by becoming signatories to the code.

As of September 2024, there were 30 signatories.

From a copyright perspective, the transparency measures of the code are noteworthy. Generally, they require signatories to:

  • publish information on the capabilities and limitations of the system;
  • develop and implement reliably and freely available methods to detect content generated by the system, with a near-term focus on audiovisual content;
  • publish a description of the types of training data used to develop the system and measures taken to identify and mitigate risks; and
  • ensure that systems that could be mistaken for humans are clearly and prominently identified as AI systems.

10.3 Have there been any recent developments involving intermediary safe harbour and liability in your jurisdiction?

There have been no recent developments involving intermediary safe harbour and liability in Canada.

Generally, intermediaries have safe harbour in Canada if they merely provide the technical means by which others infringe copyright. For example:

  • mere conduits (ISPs) do not infringe "solely by reason of":
    • providing services related to the operation of the Internet or another network; or
    • providing any means for the telecommunication/reproduction of a work through the Internet/network; and
  • hosts do not infringe by providing digital memory in which another person stores the work or other subject matter for the purpose of allowing its telecommunication by virtue of that act alone, subject to certain exceptions.

While the wording of the relevant exceptions that effect safe harbour are arguably restrictive (eg, hosts providing digital memory in which another person stores the work or other subject matter do not, by virtue of that act alone, infringe copyright), there is little case law in Canada interpreting the provisions. Further, when the safe harbour provisions are read in conjunction with other provisions of the Copyright Act, ISPs argue that they are shielded irrespective of express knowledge, provided that no court has found infringement. For example, there is an express provision that safe harbour does not apply if a host knows of a decision of:

a court of competent jurisdiction to the effect that the person who has stored the work or other subject-matter in the digital memory infringes copyright by making the copy of the work or other subject-matter that is stored or by the way in which he or she uses the work or other subject-matter.

However, Canadian copyright laws:

  • specifically provide for ISP infringement if they provide a service that primarily enables acts of infringement; and
  • set out factors for a court to consider in determining whether an ISP has primarily enabled such acts.

11 Tips and traps

11.1 What are your top tips for protecting copyrighted works in your jurisdiction and what potential sticking points would you highlight?

The Canada Border Services Agency (CBSA) offers a border protection program for brands in Canada, which was implemented in 2015. Under the regime, the CBSA has the power to:

  • detain commercial shipments that contain suspected:
    • counterfeit trademark goods;
    • counterfeit geographical indications; and
    • pirated copyright goods; and
  • provide certain information in respect of the detained goods to rights holders that have filed a Request For Assistance (RFA).

While the detention of goods by the CBSA does not automatically provide the rights holder with a remedy, the information obtained from the CBSA:

  • can be crucial in obtaining a remedy in civil court; and
  • can sometimes be used to obtain compensation from a counterfeiter via a settlement agreement.

The CBSA's powers under this regime have recently been expanded to include goods that are being shipped from one place outside Canada to another while in customs transit control or customs trans-shipment control in Canada.

Under this regime, the following are not permitted to be imported or exported, among other things:

  • copies of a copyrighted work that:
    • were made without the consent of the owner of the copyright in the country in which they were made; and
    • infringe copyright;
  • copies of a copyrighted work that were not made in Canada, if they would infringe copyright had they been made in Canada; and
  • goods that bear or contain a label which bears, without the consent of the owner, a trademark that is identical to, or that cannot be distinguished in its essential aspects from, a registered trademark.

In addition, the CBSA operates the Border Watch Line, through which individuals, including rights holders, can report border-related criminal activity.

There are certain limitations to the program to consider. For example, the prohibitions do not apply to goods that have been imported or exported by an individual in his or her possession or baggage where the circumstances indicate that the goods are intended only for personal use. In addition, if goods are detained pursuant to an RFA, the rights holder has little time to determine the best course of action and must be proactive about pursuing a settlement with the importer, or a civil claim, in order for the program to be useful.

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.

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