Canadian Copyright Law/Classification
In order for a work to be protected under the Copyright Act it must fall within an enumerated class of work. Copyright subsists in "every original literary, dramatic, musical and artistic work." Each class is defined within the Act, however, they are in many cases open-ended.
The term "literary" has been given an extremely broad meaning in copyright law. It naturally includes written texts, but it has also been extended to include tables, source code and compiled code. Manuals, diagrams, architectural plans, forms have all been shown to be copyrightable.
In determining whether a work is literary Courts have refused to examine whether there is any "literary merit". By virtue of being written it a work can be considered literary. It need only be shown to have taken labour, skill, and judgement to arrange the work.
The meaning of literary in its broadest form, can extend to protect characters and situations in a story. The main two criteria for determining this is the distinctiveness of the character and the notoriety of the character. (Hutton v. 20th Century Fox) Generic situations and stock characters, however, are not copyrightable (Nichols v. ??).
Since the amendments in 1988 computer programs are deemed to be literary works. The Act defines a program as "a set of instructions or statements expressed, fixed, embodied or stored in any manner, that is to be used directly or indirectly in a computer in order to bring about a specific result."
In practice, this has meant that translation of code into another language can be considered infringement in the same manner that the translation of a book into another language can infringe the copyright.
A "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;
A Choreographic work includes "any work of choreography, whether or not it has any story line".
A Cinematographic work includes "any work expressed by any process analogous to cinematography, whether or not accompanied by a soundtrack".
As discussed in the "fixation" section. The communication of a dramatic event is not enough to attract copyright, nor is the presentation of musical works on television enough. The degree of premeditation is significant. A reality TV show may be largely unpredictable and improvised however, the structure of the show is well defined and likely contains copyright.
An artistic work is typically said to be a work in a visual medium as distinguished from literary, musical, or dramatic works. "Artistic work", as defined in the Act includes "paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works" From this three basic categories of artistic works can be formulated. A work can be 1) an enumerated work (as listed in subsection 2(2) such as paintings, drawings, maps, etc.); or 2) a work of artistic craftsmanship; or 3) residual works. The first category has been relatively well defined. "Architectural works", "engravings", "photographs", and "sculptures" are all defined within the Act, while the rest are defined through their dictionary definition. The second category, however, has taken a divergent turn from the rest, requiring analysis of artistic merit. The third category remains debatable that it even exists .
As with all classes of works, an artistic work must be sufficiently original and in a fixed material form. Nonetheless, the artistic merit of the work has generally not been examined , with the exception for works of artistic craftsmanship.
I do not accept that the category of artistic works in general must meet [an artistic] test. I do not accept that the word "artistic" in reference to "artistic work" is being used in the same sense as the word "artistic" in reference to "works of artistic craftsmanship", that is, in the latter case "artistic"-ness requires a determination along the lines of that attempted in Hercher, Merlet, or Hay. In my view the phrase "artistic work" is used merely as a generic description of the type of works which follow. It is used as a general description of works which find expression in a visual medium
This policy decision has largely been grounded on the basis that artistic evaluation is far too difficult for the court to decide and generally leads to complications. For example, the original interpretation of "architectural works" required some degree of artistry beyond what the structure required for its use. This proved too cumbersome and thus they reformulated the protection to include all architectural works.
There still remains some debate on the need for artistic merit. In, Cuisenaire v. South West Imports Ltd. the Court found that a set of coloured rods that accompanied a math book was not sufficiently artistic as the "rods are physically little more than tools or counter to be used for a particular purpose...they were never intended primarily as an article regarded as artistic or because it in itself...Indeed, even if artistic merit is not a matter of importance in copyright law, the word artistic must still be given its ordinary meaning". The end conclusion was that "an artistic work...must to some degree at least, be a work that is intended to have an appeal to the aesthetic senses not just an incidental appeal...but as an important or one of the important objects for which the work is brought into being." The requirement set by the courts means that the work be primarily designed to serve a purpose more than pure function. Nevertheless, in DRG v. Datafile the Court found copyright in a labeling system that had been created to serve a functional purpose.
A compilation of either copyrightable or non-copyrightable material may create copyright as long as it is the result of a sufficient amount of labour, skill, and judgement.
Normal telephone books typically are said not to involve sufficient skill or judgement to have copyright. Nor are broadcast days (ordering of network TV shows).
The creation of a compilation does not alienate any of the rights that exist in the components of the works. This has resulted in many complications. Robertson v. Thompson considered the issue of a freelance writer who gave permission to a newspaper publish her article. However, she only granted the right to public her work as part of the collective work that makes up the newspaper edition, so when the newspaper put the article into an online database she sued for copyright infringement.