IP Ratios – Franco Silletta
STATUS
To qualify for CR protection, author needs proper status:
If author is citizen or residence of a treaty country, he receives CR whether published or not.
If no status, authoer gains protection if work is first published in a treaty country.
Qualifying for Copyright:
Mascot
Registration is some evidence of first publication and authorship, but it alone is not sufficient.
PUBLICATION
Combining s.2.2(1)(a)(i) and s.5(c)(i)
To publish means to make copies available to the public in such a quantity to satisfy the reasonable demand of the public.
-Exceptions: s.2.2(b) sound recordings, s.2.2(c,d) performance in public or communication to public by telecommunication of a work.
Oscar
Selectively handing out a large number of statutes to private persons does not constitute first publication of a CR, as it is not making available to the “public”
s.5(1.1)
After first publication in a non-treaty county
s.5(2)-(7)
Minister could extend CR to non-treaty members. Historically used.
Infabrics
Debate over if “publication” definition applies for economic right “to publish”. One judge found they meant same thing; other judge found “to publish” meant something less than “publication”, that is something less than “to make copies available to the public in a sufficient quantity to satisfy a reasonable demand”.
“To publish may be broader than, but is at least inclusive of, the meaning of “publication” in sections 2.2(1)(a)(works) and(b)(sound recordings) as requiring the making available of copies of a work or sound recording to the public for the first time. For a work, section 5(1)(c)(i) specifies that these available copies must be in a sufficient quantity “as to satisfy the reasonable demands of the public” assessed in the context of the nature of the work. No similar requirement is specified for a sound recording”.
Sutherland
Court held that attaching plans to a contract constituted “to publish” under the economic rights. Favours reading “to publish” broader than “publication”, as it was undecided if the plans were made available to the public in a sufficient quantity to satisfy a reasonable demand.”
CORPOREAL V INCORPOREAL
Dickens
Ownership of physical embodiment of CR is separate than ownership of copyright (incorporeal)
FIXATION
No statutory definition of fixation, but CR requires the work be fixed.
Canadian Admiral
Fixation requires the work to be expressed to some extent, at least, in some material form, capable of identification, and having a more or less permanent endurance.
Gould
Author is the one who fixes the expression, so spontaneous speech does not receive copyright, but the reporter who writes it down does.
s.3(1.1)
Fixation occurs simultaneously with production for telecommunication with the public.
Originality/Expression/Idea = COPYRIGHTABILITY – Requires ORIGINALITY, non MERGER – EXPRESSION AND IDEA
(question – should merger go here?)
Previous to the qualitative criterion of originality, the focus was placed completely on the infringement stage. Now one must first determine whether the first work is entitled to CR protection at all.
CCH
SCC determined that originality requires “skill and judgement”, rather than novelty, sweat of the brow (previous standard from London Press), or creativity. Skill and judgement falls somewhere between creativity and sweat, but may actually be quite similar to creativity. The SCC was hesitant to use “creativity” as the standard for originality as they were likely concerned creativity could be interpreted as a novelty requirement. However, the US uses “creativity” as their standard, and have never had an issue of the court treating it like novelty.
Skill and judgement was defined as “the use of one’s knowledge, developed aptitude or practiced ability in producing the work” and “the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work”. The tests of skll and judgement requiring intellectual effort ensures that the resulting element flows from the author rather than elsewhere.
Fletcher
A diaper pattern has sufficient skill and judgement and is an expression to qualify for CR protection. The design of the diaper itself does not.
Boutin
Charity scatch-card. QCA: same idea, different expression. SCC found it was non-literal copying. Today court would have evaluated if it met originality requirement or if it was merger of expression and idea.
Baker
A system of bookkeeping was an idea, rather than just an expression, so a merger occurred. Copyright subsists in expression, not ideas, and so when expression and idea merge, there is no CR, if there is a utilitarian feature of the work. However, merger does not prevent CR in non-useful industries, like paintings.
Century 21
Housing listing = skill and judgement. Price, location, photographs involved intellectual effort.
Café Mirage
Standard food list doesn’t not meet skill and judgement, but menu with art, photographs does.
LITERARY WORKS
General Meaning
London Press
Anything that is written or printed is a LW. No qualitative aspect (save for computer programs).
Hollinrake
No CR for sleeve chart. LW is work intended to afford either information and instruction or pleasure in the form of literary enjoyment.
Bulman
Business forms and CR??? Today – not original or form was so simple, it was merger of form and idea.
Single Words:
Exxon
A single word falls outside of the definition of LW, so no CR. The only meaning a single word can have is its origin, which is realm of TM. It does not meet Hollinrake test – it was not intended to afford information or pleasure.
Via
A single word is an idea, not an expression, which is incapable of CR.
Expo 86
CR and TM can stand side by side. TM’s show origin, but gives no right in literary work; CR gives literary rights, but cannot signify origin.
Titles
Francis Day
Titles alone are generally not within the subject matter of CR because titles are not a “substantial part” of a literary work – perhaps a title that covered a whole page could qualify, but it would then be a headnote. The statutory definition of work says work includes a title when such title is original and distinctive. “Includes” suggests you can’t protect a title by itself. Unclear what distinctive means.
Common, hackneyed statements cannot be CR because they are not original.
Doctor Today
Titles cannot receive CR unless they are original and distinctive. A purely descriptive title means it is not distinctive. (However, court applied TM analysis of confusion to CR case.)
Canadian Olympic Association
?? Titles should be protected by TM, not CR.??
Translations
Generally – Translations involve change from expression to idea to expression, and so CR is available for first expression and new expression, as long as skill and judgement is involved (not literal like Morse Code).
Keatley Surveying
Conversion of survey plans into digital format may be a production, but it is not a translation. Translation is limited to conversion of one human language to another.
Unauthorized Translations
An unauthorized translation is a non-literal infringement. Canada: No copyright in the infringing work. UK: Copyright subsists, but proceeds may be held in trust. (NB: Can/UK flip on the issue of obscenity)
Computer Programs
Apple – Literal Copying
Literal copying of the machine code form of software (on a chip) is “reproduction”. – Literal copying of computer software is infringement.
Legislation?
Computer program is a literary work.
Delrina and Prism – Adoption of A-F-C
Copyright is not limited to literal copying of computer code. The US Abstraction-Filtration-Comparison method for non-literal copying is of great assistance. Court adopted “Weeding-out” process, similar to A-F-C; where first portions that are not subject to CR protection are removed, and then what is remaining is compared to the infringing item.
Weed out portions that did not originate from the author and did not require skill and judgement:
matters of public domain, routine sequences, matters pre-determined by efficiency or subject matter (e.g. if a program needs to be X to link a system), usage of sequences that present a sole or limited number of ways of expressing a particular matter.
US
Lotus – First US approach - System
Computer programming is just a system or machine, so it cannot receive CR protection, like in Hollindrake. Court of Appeal decision was upheld by US SC in a split decision.
BroderBund Software – Second US Approach – Look and Feel
Subjectively determine if a computer program non-literally copies another by if the computer screen (which is a reflection of the underlying program) looks and feels the same for the infringing program as the original program.
Third US Approach - Abstract-Filtration-Comparison
Current method for determining non-literal copying in US and Canada (though called weeding out)
1. Abstraction – Identify the copyrightable components of the program
2. Filtration – Exclude all non-copyrightable elements
Matters of public domain, routine sequences, matters pre-determined by the purpose or subject matter (e.g. if a program needs to be X to link a system), usage of sequences that present a sole or limited number of ways of expressing a particular matter.
3. Compare the copyrightable elements as a whole to determine if infringement has occurred.
DRAMATIC WORKS
Requirements:
1. Dramatical element (Planned sequence of events) 2. Fixation
Definitions:
“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;
No requirement for story line, just fixed sequencing of events.
“choreographic work”includes any work of choreography, whether or not it has any story line; (so it doesn’t need a story line, but it needs a sequencing o fevents)
“Cinematographic work” includes any work expressed by process analogous to Cinematographic work (digital moving sequences)
s.11(1) 11.1Except for cinematographic works in which the arrangement or acting form or the combination of incidents represented give the work a dramatic character, copyright in a cinematographic work or a compilation of cinematographic works shall subsist
- (a)for the remainder of the calendar year of the first publication of the cinematographic work or of the compilation, and for a period of fifty years following the end of that calendar year; or
- (b)if the cinematographic work or compilation is not published before the expiration of fifty years following the end of the calendar year of its making, for the remainder of that calendar year and for a period of fifty years following the end of that calendar year.
-So for cinematogrhapihc works without a dramatic character, it can get double protection if first unpublished for 50 years, then 50 years from first publish.
Broader definition of work – read along the sub definition speaks of including lectures,dramatic,ordramatico-musical works (opera, musical)
Hutton
Depiction of actors gathering music for a countdown constituted a dramatical work – was original and had fixed sequence of events.
Kantel
Radio show with set characters and plot structure (but spontaneous dialoge) is fixed sequence of events.
Green
Unscripted talent show is not fixed as there was no certainty in the events, even though there were some loose phrases repeated.
FWS and NBA - Sports
Two reasons why they don’t qualify for dramatic works:
1. Not enough sequence of events are planned, only initial play (football, etc).
2. Policy – Sports are about competition, so don’t want to give copyright to hurt competition.
Canadian Admiral
A dramatic work must be fixed. No copyright found in live TV broadcast because: No planned events, no fixation as no record of broadcast was kept. The compilation chosen by broadcaster may have receieved some CR, but there was no fixation (recording).
Author v Maker – s.5(1)(a,b)
- (a)in the case of any work, whether published or unpublished, including a cinematographic work, the author was, at the date of the making of the work, a citizen or subject of, or a person ordinarily resident in, a treaty country;
- (b)in the case of a cinematographic work, whether published or unpublished, the maker, at the date of the making of the cinematographic work,
Author is one who provides the original dramatic character (s.11(1) life of author plus 50, and moral rights thorugh s.14.1)
If no author, then there is no dramatic character, you have maker left. Marker is person who made the necessary arrangements for the work to occur (producer).
If cinetmatographic work with a dramatic element, have maker and author. Author gets copyright over the maker (s.13(1)), unless work is completed in course of employment, where CR subsists in employer (13(2)) . Author still retains more rights.
MUSICAL WORKS
“musical work”means any work of music or musical composition, with or without words, and includes any compilation thereof;
Large definition, read alongside, includes translations and damatico musical works – opera, ballet
Composers
Previous definition of musical work required written score to be communicated. Performance of written score did not fit this definition.
Aftermath: Legislation change - Got rid of reference to written score, s.2.4(1)(c) – added joint and several liability for networks, 2.3 – clarified person who communicates work to the public by telecommunication does not by that act alone perform it in public or authorize its performance in public (some courts were treating to the public = in public), removed “melody or harmony” requirement
What is music?
Vocal or instrumental sound or the production in an oral bueaty of harmony and expression of emotion – thought it may include silence? Could be electronic sounds or natural sounds
ATV
There is one CR for both music and words in a song. Note: Joint Authorship = work producing by two authors where the work is not distinct. If one made music, one wrote words, would be collective work.
Wood
Adapting orchestra music to fit just one instrument constitutes a new work – a translation.
Author and Ownership
See 13(1), 13(3), 13(4), 34.1, 32.1(2)( , b,c), s.53(2)
For infringement – Look to 1.Prior Work 2. P’s Work 3. D’s Work
Gignon
To prove copying, must show:
1. P’s work is original (S and J CCH)
2. Substantial taking (quantitative (the hook) and qualitative features – the focus is on the melody) of sufficient similarity (subjective test – ordinary ear, objective = experts take music apart)
3. Access
Courts look at objective evidence: experts who emphasis melody and scientific approaches
Courts look at subjective evidence – ordinary ear –does it sound like a substantial taking?
Drynan
Subconscious copying has not yet been accepted into Canada, in part due to lack of medical evidence.
ARTISTIC WORKS
“artistic work”includes paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works;
The specified rights have no requirement for “artistic-ness”. However, “works of artistic craftsmanship” may require an element of quality.
Meaning of “Artistic”:
Cuisinaire Rods
Artistic means the item is intended to have an appeal to the aesthetic senses, not just an incidental appeal, but one of the important objects for the creation of the work. Here the artistic appeal was a secondary purpose, there was not an intention of the creator to appeal to aesthetic senses.
Hensher:
Divided judgment which did not conclusively define “artistic.” Most of the judges signified that intent of the artist was of some significance, but it was not the sole test like in Canada. The intent of the purchaser was a small factor – why it was purchased and how it is used. There needs to be some element of objectiveness in the analysis, can’t leave it up to the maker soley to define art.
Kenrick
Work of art = production which has value in the character of a drawing, painting or photograph and not simply because it conveys by way of a picture a description which could be put into words (visual depiction showing a person how to vote is not copyrightable – Kenrick).
Need for Artistic-ness
Cuisenaire Rods
Artistic craftsmanship requires a qualitative element of “artistic-ness”, but the other categories do not. There is a residual category for artistic works. However, the rods are idea, and not expression, and so they fail as subject matter?
DRG
Court was less certain that “artistic-ness” was a requirement for artistic craftsmanship, but the question was left open.
Affirmed residual category for AW. Colour coordination was seen as requiring skill and judgement. File labels met engraving requirement.
Lifestyle Homes
Architectural works requires 1. Original expression and 2. An attempt to convey beauty
Artistic Craftsmanship
Hensher
No conclusive definition given for artistic craftsmanship. Lord Simon held the words should be combined. Decisions emphasized that it not simply be mass produce, but instead it be hand made with limited machine assistance, and not transient like a prototype.
Architectural Works
s.2: “any building or structure or any model of abuilding/structure”.
Navy architecture (ships) are not architectural works because 1) ship is not a building/structure (Bayliner)
CR is granted for architectural works, and it is exempt from s.64. However, it is not excluded from s.64.1, and so it is treated same as any other work. CR may exist, but you can reproduce something that is solely of a utilitarian feature.
Lifestyle Homes
Architectural works require 1. Original expression and 2. An attempt to convey beauty
I am unclear what is required for architectural works. She has a case that says “artistic character or design” is no longer a requirement under “architectural work”
Notes.32.2(1) exception –not CR infringement to paint architectural work
Other Categories
Netupsky
Engineering plans do not require an artistic element. Therefore, if trying to protect something like a building, could argue that it is 3D copying of a 2D drawing.
Three Dimensional Copying of Two Dimensional Works
LB Plastics
Doesn’t matter if the drawing or the 3D object was made first, all that matters is that a drawing exists (unclear if this still holds).
A 3D object gains protection only through artistic craftsmanship, which like requires an element of artisticness. However, if there is a 2D drawing of the object, then the 3D object is protected as a reproduction of the 2D object, even if the D never saw the object.
Bayliner
Did it just follow the other cases? I’m not sure.
Pree 1988, CR could not extend to matter capable of being registered under the Industrial Design Act. However, there were many strict requirements that had to be met to qualify as a ID, and so little ever did. The FCA read the requirements as “or” rather than “and”, and so much more purely functional designs could no longer receive CR. This was next addressed by legislature under s.64 and 64.1.