IP Compendium

Notes on Canadian intellectual property law

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Copyrightable subject matter

Copyright does not protect all works - only those that qualify under the Copyright Act.1

Statutory basis

Subsection 5(1) of the Copyright Act provides:

5. (1) Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work […]

Therefore only those works that qualify as “literary, dramatic, musical and artistic” are afforded copyright protection. Although these terms appear in the “definitions” section of the Copyright Act, they are provided with inclusive, rather than comprehensive, definitions.

The general phrase “literary, dramatic, musical and artistic work” is given the following inclusions:

“every original literary, dramatic, musical and artistic work” includes every original production in the literary, scientific or artistic domain, whatever may be the mode or form of its expression, such as compilations, books, pamphlets and other writings, lectures, dramatic or dramatico-musical works, musical works, translations, illustrations, sketches and plastic works relative to geography, topography, architecture or science

Each of the terms “literary”, “dramatic”, “musical”, and “artistic” are given further inclusions, but are not defined comprehensively. Whether a work falls within each category is therefore subject to judicial interpretation. Each of these categories are considered below.

Note on "neighbouring rights"

See also: neighbouring rights.

The Copyright Act also grants certain protections to special classes of items that do not traditionally fall under the categories of “literary, dramatic, musical and artistic work(s)”. These include sound recordings (s. 18), broadcasters' communication signals (s. 21), and performers' performances (s. 28), which are generally referred to as “other subject-matter” in the Act. Owners of these items are granted certain rights akin to copyright, but differ in various ways (including for example the length of protection). Notably, while most traditional copyright principles extend to the “other subject-matter”, there is no necessity for “authorship” or “originality” to find protection in these “works”.2

Literary works

The Copyright Act provides that:

“literary work” includes tables, computer programs, and compilations of literary works 3

More comprehensively, courts have defined literary work to mean anything “expressed in print or writing”, regardless of the “quality” or “style” of the work in question. The English Chancery Division in University of London Press Ltd v University Tutorial Press Ltd 4 gave this description, which has been accepted both by the House of Lords in the UK5 and the Federal Court of Appeal in Canada:6

Although a literary work is not defined in the Act, s. 35 [in Canada, s. 2] states what the phrase includes; the definition is not a completely comprehensive one, but the section is intended to show what, amongst other things, is included in the description 'literary work,' and the words are ' “Literary work” includes maps, charts, plans, tables, and compilations.' It may be difficult to define 'literary work' as used in this Act, but it seems to be plain that it is not confined to 'literary work' in the sense in which that phrase is applied, for instance, to Meredith's novels and the writings of Robert Louis Stevenson. In speaking of such writings as literary works, one thinks of the quality, the style, and the literary finish which they exhibit. Under the Act of 1842, which protected 'books,' many things which had no pretensions to literary style acquired copyright: for example, a list of registered bills of sale, a list of foxhounds and hunting days, and trade catalogues; and I see no ground for coming to the conclusion that the present Act was intended to curtail the rights of authors. In my view the words 'literary work' cover work which is expressed in print or writing, irrespective of the question whether the quality or style is high. The word 'literary' seems to be used in a sense somewhat similar to the use of the word 'literature' in political or electioneering literature and refers to written or printed matter. Papers set by examiners are, in my opinion, 'literary work' within the meaning of the present Act.7

Dramatic works

“dramatic work” includes

(a) any piece for recitation, choreographic work or mime, the scenic arrangement or acting form of which is fixed in writing or otherwise,

(b) any cinematographic work, and

(c) any compilation of dramatic works;

Artistic works

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

Musical works

“musical work” means any work of music or musical composition, with or without words, and includes any compilation thereof

2 David Vaver, Intellectual Property Law: Copyright, Patents, Trade-marks, 2d ed (Toronto: Irwin, 2011) at 109-12.
3 Copyright Act, s 2.
4 [1916] 2 Ch 601.
5 Ladbroke (Football) Ltd v William Hill (Football) Ltd, [1964] 1 All ER 465.
6 Apple Computer Inc v Mackintosh Computers Ltd, [1988] 1 FC 673 (CA) at paras 42-43, aff’d [1990] 2 SCR 209.
7 University of London Press, supra, at 608.
copyright/subject_matter.txt · Last modified: 2016/05/26 20:16 by KPS