Copyright law grants creators exclusive rights over their original works, allowing them to control how these works are reproduced, adapted, displayed, and monetized. A fundamental distinction exists between physical ownership and copyright ownership. Purchasing a work (e.g., a painting or sculpture) does not transfer copyright unless specifically agreed upon in writing. Copyright provides creators with a set of economic and moral rights, designed to protect both the commercial value of their work and their personal connection to it.

Copyright is a legal framework that grants creators specific rights over their original works. Understanding copyright is essential to distinguish between physical ownership of a work and ownership of copyright in a work. Here, we explore what copyright entails and the protections it affords to creators under the Copyright Act.

Copyright is a statutory right created by the Copyright Act, which protects a creator’s work by granting specific rights to control and monetize the use of that work. It offers creators legal protections against unauthorized uses and reproductions of their work.

Copyright is a bundle of economic and moral rights. These rights protect the creator's economic interests and personal connection to the work. Copyright encompasses economic rights, allowing creators to earn income, and moral rights, which safeguard their personal and reputational connection to the work.

Physical Ownership vs. Copyright Ownership: Ownership of a physical work, such as a painting, does not automatically grant copyright. Buyers cannot reproduce, publicly display, or commercially exploit the work without permission from the copyright holder.

Key Rights Under Section 3 of the Copyright Act

Section 3 of the Copyright Act provides the following exclusive rights:

• To produce, reproduce, perform, adapt, and translate the work.

• To publish, record, and communicate the work by telecommunication.

• To present the work at exhibitions and rent certain types of works, such as films and software.

This ensures creators have control over the accessibility, adaptation, and distribution of their work, with the flexibility to license or limit these rights based on their preferences.

Categories of Copyright-Protected Works:

• Artistic Works: This includes artwork, paintings, illustrations, graphics, logos, sculpture and maps etc.

• Literary Works: This covers books, periodicals, software, journals, software, directories, and more.

• Dramatic Work

• Musical Works

For specific contexts like Access Copyright which provides reproduction licenses focus on published works (excluding music or software). This license does not extend to uses such as printing on merchandise.

Exclusive Rights Under Section 3 of the Copyright Act

Section 3 grants the copyright owner exclusive rights, including:

• Production, reproduction, performance, adaptation, translation, and publication of the work.

• Communication of the work to the public by telecommunication, a right that has been expanded to address online and digital platforms.

• Rental rights for certain works, including software, films, and sound recordings.

The creator of an original literary, dramatic, artistic, or musical work has the exclusive right to use the work and to permit others to use it through performance, exhibition, reproduction, and more.

What Does It Mean to Reproduce?

Reproduction refers to creating copies of a work in various forms, including:

• Photocopying

• Faxing

• Digital reproduction on the internet

• Manual copying

Physical ownership of a work versus copyright of a work

Copyright right is a statutory right created by the Copyright Act. Copyright is a bundle of economic and moral rights pursuant to the Copyright Act. Section 3 of the Act provides the copyright owner with the exclusive right to produce, reproduce, perform, adapt, translate, publish, make a recording, communicate by telecommunication, and present an artistic work at an exhibition or any substantial part of a work. The right to communicate a work to the public by telecommunication, and the right to rent out certain works.

The creator of an original literary, dramatic, artistic, or musical work is given the exclusive right to use and to permit others to use the work by way of performance, exhibition and reproduction.

Artistic works include artwork, illustrations, graphics, logs, maps etc.. Literary works refers to books, periodicals, newspapers, journals, papers, software, directories, etc.

The reproduction rights for copying published works is handled by Access Copyright, a copyright collective (and not for instance, music or computer programs). They do not licence for uses such as reproduction of a published work on a T-shirt or mug.

Rights Specific to Artists and Designers

Artists and designers benefit from several rights within the Copyright Act, including reproduction, exhibition, and moral rights. These rights allow creators to retain control over the display, adaptation, and integrity of their work. Here are explanations and notable cases that illustrate each right.

1. Reproduction Rights (Section 3)

Reproduction rights allow creators to control the copying of their work in both physical and digital formats. This right preserves the exclusivity and integrity of the work's presentation.

Prints and Sculptures: An artist can create a limited number of prints or sculptures to preserve the uniqueness of their work. Unauthorized reproduction, whether digital or physical, infringes upon these rights.

Case Example - Andy Warhol Foundation v. Lynn Goldsmith: Photographer Lynn Goldsmith sued the Andy Warhol Foundation for using her photograph of Prince to create silkscreens. The court ruled that Warhol’s work did not sufficiently transform Goldsmith’s photo, affirming her reproduction rights and restricting derivative uses.

Case Example - Rogers v. Koons: Artist Jeff Koons used a photographer’s image of a couple holding puppies to create a sculpture without permission. The court found that Koons’ work was not transformative, emphasizing the photographer’s reproduction rights over unauthorized adaptations.

2. Exhibition Right (Section 3(1)(g))

Exhibition rights allow artists to control when and where their work is displayed in public, such as galleries, museums, and other exhibition spaces.

Example - Michael Snow v. Eaton Centre: Snow, a Canadian artist, sued Eaton Centre for adding holiday ribbons to his sculptures without permission. The court upheld Snow’s right to control the presentation of his work, affirming the exhibition and moral rights associated with it.

Case Example - Richard Prince and Fair Use: Prince faced lawsuits over his “Canal Zone” series, where he used photographer Patrick Cariou’s images without permission. The court ruled that some of Prince’s works were transformative, allowing fair use, while others were not, illustrating the complexities of exhibition rights in appropriation art.

3. Public Communication Right (Section 3(1)(f))

This right allows creators to control how their work is communicated digitally, such as on websites or social media, making it especially relevant in today’s digital era.

Example: A graphic designer may license a logo for use on a company’s website but restrict it from being used on social media, preserving control over its online display.

Case Example - Cartier v. Fake Online Retailers: Cartier protected its brand and digital reproductions of its designs against unauthorized online retailers. The court enforced the removal of counterfeit images, affirming Cartier’s public communication rights.

4. Moral Rights (Section 14.1)

Moral rights protect the creator’s personal and reputational connection to their work, including the right to be attributed as the author and the right to prevent harmful modifications.

Right of Attribution: This right ensures artists are credited as authors of their work, which helps maintain their professional reputation.

Right of Integrity: This right allows artists to prevent modifications that could harm their reputation. For example, in Cady Noland v. Log Cabin, Noland successfully argued that unauthorized restorations of her work distorted her original intent, upholding her right of integrity.

Case Example - Shepard Fairey v. Associated Press: Fairey, creator of the Obama “Hope” poster, used an AP photo as the base for his design without permission. The case settled, acknowledging the AP’s attribution rights and underscoring the importance of moral rights in transformative art.

Case Example - Gillian Wearing v. Tate Gallery: Wearing sued Tate Gallery to prevent unauthorized alterations to her displayed work. The court upheld her right of integrity, affirming that artists can protect their work from modifications that distort its meaning.

5. Economic Rights (Section 3)

Economic rights allow artists to profit from their work through licensing, distribution, and sales, giving them control over its commercial use.

Distribution Rights: These rights allow artists to control how their works are shared and distributed. For example, a novelist may license their work for publication in a specific market, preserving distribution rights elsewhere.

Resale Right (Proposed Legislation): In many countries, resale rights entitle artists to royalties each time their work is resold in the secondary market. This allows them to benefit from the work's appreciation in value over time.

Case Example - California Resale Royalty Act: This act entitles California artists to royalties on secondary sales, enabling them to share in the financial benefits as their work gains value, setting a precedent for potential resale rights legislation elsewhere.

As of November 2024, Canada has not yet implemented an Artist's Resale Right (ARR), which would entitle visual artists to receive a royalty payment when their works are resold in the secondary market. This right exists in over 90 countries, including all European Union members, the United Kingdom, and Australia.

In November 2023, the Government of Canada initiated a survey to gather information on the Canadian art market, aiming to support the development of resale rights for artists. Despite these efforts, the 2024 federal budget did not include provisions for the Artist's Resale Right, leading to disappointment among Canadian visual artists and their representative organizations, such as Canadian Artists' Representation (CARFAC) and the Regroupement des artistes en arts visuels du Québec (RAAV).

Advocacy for the ARR in Canada continues, with proponents emphasizing its potential to provide financial benefits to artists, particularly Indigenous and senior artists, by allowing them to share in the increasing value of their works over time.

6. Literary Rights and Access Copyright

Access Copyright manages reproduction rights for literary works like books, newspapers, and software, providing licenses for educational and research purposes. Commercial uses, however, still require direct permission from the copyright holder.

Example: An academic institution may obtain a license from Access Copyright to copy parts of a textbook for classroom use, whereas reproducing it on merchandise requires direct permission.

Case Example - Campbell v. Acuff-Rose Music: In this U.S. Supreme Court case, 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman” was deemed fair use due to its transformative nature. The ruling influenced fair use guidelines for literary and artistic works, emphasizing the role of fair dealing in educational and transformative contexts.

7. Enforcement and Remedies

Copyright holders have several legal remedies to address infringements:

Injunctions: Courts can issue orders to prevent unauthorized use or modifications. For example, Michael Snow successfully obtained an injunction against the Eaton Centre.

Damages: Copyright holders can seek financial compensation, known as damages, for losses resulting from infringement. There are two primary types of damages available:

Actual Damages: These damages compensate the copyright holder for measurable financial losses due to the infringement, such as lost licensing fees, sales, or commissions. Actual damages require proof of the financial impact of the infringement.

Statutory Damages: In cases where it is challenging to quantify actual losses, courts may award statutory damages. These are pre-determined amounts set by law, allowing copyright holders to receive compensation without proving exact financial losses. Statutory damages are especially useful in digital infringement cases, where tracking losses can be complex.

Example - Warner Bros. v. Family Entertainment: In this case, Warner Bros. was awarded statutory damages against a company using copyrighted material without permission. Statutory damages provided a remedy without the need to calculate precise financial loss, highlighting their importance in cases of widespread unauthorized use.

Account of Profits: Instead of claiming damages, copyright holders may request an account of profits, which allows them to recover profits that the infringer earned through the unauthorized use of their work. This remedy focuses on the infringer’s gain rather than the copyright holder’s loss.

Example - Warman v. Fournier: In this Canadian case, the court awarded an account of profits to the copyright holder, requiring the infringing party to pay the profits they earned from unauthorized reproductions of the work.

Delivery Up and Destruction: Courts can order that infringing copies be “delivered up” (surrendered) to the copyright holder or destroyed. This remedy is particularly common in cases involving counterfeit goods or unauthorized reproductions of artwork or merchandise.

Example - Louis Vuitton v. My Other Bag: Louis Vuitton successfully argued that My Other Bag’s use of its logo on bags constituted trademark and copyright infringement. The court ordered the infringing goods to be delivered up and destroyed to prevent further harm to the brand.

Criminal Penalties: In cases of severe infringement, such as large-scale reproduction or distribution without permission, criminal charges can be brought against the infringer. Criminal penalties may include fines and, in extreme cases, imprisonment, providing a deterrent against high-stakes copyright violations.

Example - RIAA v. Online Music Piracy: The Recording Industry Association of America (RIAA) pursued criminal charges against large-scale music piracy operations, leading to fines and jail time for major infringers. This demonstrates the importance of criminal penalties in deterring high-stakes and widespread copyright violations.