Podcasting Legal Guide For Canada
You will find helpful websites for determining public domain status of a work in Section 5 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340032003400350039000000 – “Background and Further Resources 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340032003400370033000000 ” of this Guide.
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We also explain below, in part (d) of this section, one wrinkle that arises when using public domain works that you need to consider to ensure that your use does not infringe anyone’s copyright.
(a) Published Works – Term. Currently, the copyright term in Canada is life of the author plus 50 years for content created by individuals.<span lang="EN-CA" style="font-size:10.0pt;mso-bidi-font-size: 12.0pt;font-family:"Times New Roman";mso-fareast-font-family:"Times New Roman"; mso-ansi-language:EN-CA;mso-fareast-language:EN-US;mso-bidi-language:AR-SA; mso-bidi-font-weight:bold">[15] For collaborative works – those created by more than one person – the term of copyright protection is 50 years after the death of the last living collaborator.<span lang="EN-CA" style="font-size:10.0pt;mso-bidi-font-size: 12.0pt;font-family:"Times New Roman";mso-fareast-font-family:"Times New Roman"; mso-ansi-language:EN-CA;mso-fareast-language:EN-US;mso-bidi-language:AR-SA; mso-bidi-font-weight:bold">[16] For works created in circumstances of employment (where the employee is under a contract of service, the work is created in the course of this contract, and there is no contractual provision to the contrary, the employer will be the owner of the copyright). <a style="mso-endnote-id: edn17" href="file:///U:/Documents/2006%20Kaplan-Myrth%20Consulting/Creative%20Commons/Podcasting%20Legal%20Guide/Podcasting%20Legal%20Guide%20for%20Canada.doc#edn17" name="ednref17" title=""><span lang="EN-CA" style="font-size:10.0pt;mso-bidi-font-size: 12.0pt;font-family:"Times New Roman";mso-fareast-font-family:"Times New Roman"; mso-ansi-language:EN-CA;mso-fareast-language:EN-US;mso-bidi-language:AR-SA; mso-bidi-font-weight:bold">[17] However, since the creator of the work is still considered to be the first author, the term of copyright is the standard term: the life of the author plus 50 years.<a style="mso-endnote-id: edn18" href="file:///U:/Documents/2006%20Kaplan-Myrth%20Consulting/Creative%20Commons/Podcasting%20Legal%20Guide/Podcasting%20Legal%20Guide%20for%20Canada.doc#edn18" name="ednref18" title=""><span lang="EN-CA" style="font-size:10.0pt;mso-bidi-font-size: 12.0pt;font-family:"Times New Roman";mso-fareast-font-family:"Times New Roman"; mso-ansi-language:EN-CA;mso-fareast-language:EN-US;mso-bidi-language:AR-SA; mso-bidi-font-weight:bold">[18] For works that are anonymous or pseudonymous, the term of protection is the shortest of 50 years after publication or 75 years after creation of the work.
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If the identity of the author is disclosed during that time, the normal rules for protection apply.<span lang="EN-CA" style="font-size:10.0pt;mso-bidi-font-size: 12.0pt;font-family:"Times New Roman";mso-fareast-font-family:"Times New Roman"; mso-ansi-language:EN-CA;mso-fareast-language:EN-US;mso-bidi-language:AR-SA; mso-bidi-font-weight:bold">[19] A fair amount of research may be required to determine whether a published work has joined the public domain.
(b) Unpublished Works – Term. Some unpublished works are also part of the public domain. The rules for unpublished works were amended in 1997 to remove perpetual protection.
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Currently, the Copyright Act provides the standard <span lang="EN-CA" style="mso-bidi-font-size: 11.0pt">term of protection (life of the author plus 50 years) to works whose authors died after the coming into force of the section, regardless of whether or not the works were published before the author’s death.
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Two transitional provisions were also provided for those owners of copyright in works that had perpetual protection previous to these amendments. The first only applied until 1998, but according to the second, posthumous works by authors who died between 31 December 1948 and 31 December 1998 are protected until 31 December 2048.<span lang="EN-CA" style="font-size:12.0pt;mso-bidi-font-size: 11.0pt"><span lang="EN-CA" style="font-size:12.0pt;mso-bidi-font-size: 11.0pt;font-family:"Times New Roman";mso-fareast-font-family:"Times New Roman"; mso-ansi-language:EN-CA;mso-fareast-language:EN-US;mso-bidi-language:AR-SA; mso-bidi-font-weight:bold">[20] No more unpublished works will enter the public domain in Canada until 2049.
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(c) Dedication To Public Domain – Finally, it may be possible for a work to be in the public domain because an author or copyright owner has dedicated their work to the public domain.
Creative Commons provides a Public Domain Dedication for use in the United States (http://creativecommons.org/licences/publicdomain/). This appears to be a grey area of the law in Canada at this time and Creative Commons Canada is considering the legal status of public domain dedications in Canada.
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(d) One Wrinkle – One additional wrinkle when using public domain works is that those public domain works may be incorporated into another work that is copyright-protected.
When this happens, although the public domain portions remain unprotected by copyright, the author’s new expressive content may be protected by copyright. For example, as a general rule, slavish photographs of public domain works such as the Mona Lisa are not considered to attract copyright protection because they are designed to replicate the original public domain work as much as possible.
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However, a photograph of a sculpture, even a public domain sculpture, may be protected by copyright because of the skill and creativity involved in setting up the shot.