| (a) Copyright Under the Canadian Copyright Act, copyright is acquired automatically if the following three conditions are met: The song is original within the meaning of the Copyright Act (“the Act”). Originality for the purposes of the Act means that it is a product of substantial knowledge, skill, industry or experience, and it has not been copied in a substantial way from another. The song is in a material form of more or less permanent fixation. Fixation includes a lead sheet or demo recording, for example. The creator is a “qualified person” within the meaning of the Act, such as a Canadian citizen or landed immigrant. This is the qualified person requirement. Assuming the above three conditions are met, then copyright is “automatically’ acquired. The Canadian copyright system does not require any formalities, for example, the need to register copyright, but see paragraph (b) below. (b) Copyright Protection Copyright protection means providing evidence which could be admissible in a court of law, which could assist one in proving whether one is the copyright owner. With this in mind, I recommend the following practices: 1. Keeping all work in progress and dating it contemporaneously with the time it was created. 2. Having witnesses able to testify as to your writing of the song. This can be accomplished by either having co-writers, friends, family or band members which may have been present when the song was being written. 3. You could also swear as affidavit as to the date the song was created and the musical contents of the song. 4. Sending a recorded copy of the song to yourself by registered mail and do not open the envelope. The registered mail receipt and the time and date stamp could be evidence of the date the songs were completed and were composed. 5. Register the title of the song with SOCAN, the CMRRA, This arguably could be an admissible business record as to the date of the completion of the songs as indicated by the filing of the title with SOCAN or the CMRRA. 6. Registering or depositing this song with the Songwriters Association of Canada. This is a business record indicating the date the song was registered and presumably completed. 7. Register the copyright to the song in the Copyright Office. With respect to Paragraph (7), above, although this is not required under the Copyright Act and indeed can be expensive since it costs $ 65.oo per title, copyright registration is the only procedure that raises the presumption in law (albeit rebuttable) that the entity identified on the copyright registration is the owner of the copyright to the song. (c) Copyright Registration Copyright registration can be accomplished by completing the following steps: (1) Contact cipo.gc.ca for the appropriate form: Unpublished Works or Published Works. (2) Decide whether or not to use the Unpublished Works form or the Published Works form. Note that publication means “the issue of copies to the public”. This would appear to mean tangible copies, for example, recordings of the song. (3) Complete the application form. The application form requires the signature of the copyright proprietor and indicates the names of the authors of the composition, among other things. (4) Pay the application fee. This can be sent by cheque in the amount of $ 65.00 to: Commissioner of Patents, Copyright Office, Ottawa-Hull, Ontario K1A 0C9. Cheques do not have to be certified. Cheques are made payable to the “Receiver General of Canada”. Payment can also be done by credit card online. Copyright registration in Canada takes approximately two months. Personal cheques or money orders can be sent. Note that Canada has a title-only registration system. No deposit of the work is required. It is a voluntary system and is not required in order to acquire copyright. The above is summary advice only and in specific situations, skilled legal advice should be obtained. Paul Sanderson is an entertainment lawyer who entered private practice after having spent several years as a professional musician. He has practical experience as a songwriter, guitarist, keyboard player, and is a publisher and writer member of SOCAN. He is also the author of “Musicians and the Law In Canada”, now in it’s third revised edition. © Paul Sanderson, 2006. |