Canadian Copyright Law/Protection of Economic Rights

Protection of Economic Rights

The owner of a copyright has exclusive rights over the certain economic benefits derived from the rights.The determination of whether any rights have been violated depends on what is the extent of those rights. This is reflected in the "infringement" provision of the Copyright Act which states:

27(1) It is an infringement of copyright for any person to do, without consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do.

The exclusive economic rights are those enumerated in section 3(1). The section gives rights to produce, reproduce, present, communicate, publish, or authorize works, depending on the type of protected work.

Produce or Reproduce

The right of reproduction is said to be the broadest of the protected rights, and in practice, it is the most often applied right. It provides "the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever..." This includes both public and private reproductions. Copying within the privacy of home can still constitute infringement.

A reproduction comes in two basic types, literal copying and non-literal copying (also referred to as a colourable imitation). As well, the copy does not need to consist of a complete reproduction, the act equally protects against taking of a "substantial part" of the work.

When a work is subject to literal copying in its entirety, with either minor or no changes at all, a finding of infringement is usually simple. The judge will usually find an infringement when the similarity between the works cannot be the result of coincidence. However, when the copied work has been disguised it makes determining infringement difficult. In such a case the Court will look for "colourable imitation" in characteristics of the work. This is often used in the "Substantial similarity" test which asks:

First, there must be sufficient objective similarity between the infringing work and the copyright work, or a substantial part thereof, for the former to be properly described, not necessarily as identical with, but as a reproduction or adaptation of the latter; secondly, the copyright work must be the source from which the infringing work is derived.

In conjunction with this, it must be shown that the accused had access to the original work.

Nevertheless, the copying of an idea from another work cannot constitute an infringement.

Authorizing

An individual may be liable for all types copyright infringement where it can shown that they "authorized" - that is, sanctioned, approved, or countenanced - someone else to infringe a copyright. This form of liability is particularly useful when the actual culprit of the infringement is unavailable or judgement proof.

In CCH Canadian v. Law Society of Upper Canada, the Court outlined what is required to show authorization. A person who merely provides the means for infringing copyright cannot be held liable.