Copyright Protection A copyright is the right to produce, reproduce, and transform any original work. Copyrights are only given to original works that fall under the “following seven categories: Literary works, Musical works including accompanying any works, Dramatic works including accompanying music, Choreographic works, Graphical and sculptural works, Motion pictures and other audiovisual works, Sound recordings, and Architectural works”1. Under the Canadian copyright act any published or unpublished original work upon creation will receive automatic copyright protection. Though automatic copyright protection is given to original works the benefits of having ones copyright registered (Copyright Registration Application: Page 8 & 9) with the Canadian Intellectual Property Office (C.I.P.O) is that one receives a certificate of registration which can be used to ones advantage in the event of infringement and prove of ownership in a court law. When any production, reproduction, transformation of a work is gone without the permission of the owner of a copyrighted work this becomes copyright infringement.

In cases of copyright infringement the responsibility to report this infringement rests on the owner of the copyrighted work however the Copyright Act does contain criminal remedies, which apply to certain types of serious infringement or piracy. The function of copyright laws in our society today are particularly stringent on copyright infringement and these laws ought to be reformed to decrease the amount of congestion in civil litigation surrounding copyright infringement in our legal system. Copyright laws beginnings started close to three centuries ago. When first implemented its sole function was to prevent exact replications of written work. During the mid 1800s, the publishers of the eighteenth-century poet James Thomsons “The Seasons” regularly sued producers of unauthorized, or pirated, editions of the popular poem, since the publishers obtained the copyrights from James Thomson.

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This was the beginning of the extension of rights given to copyright owners. Eventually the function of the copyrights broadened to include control over transformation, publication, imitation and unauthorized usage of an original work. Even when copyrights are transferred from one owner to another the original copyright owner has what is called “moral rights being that any changes to an original work being modification, distortion, mutilation without the permission of the original author is infringing on the original authors moral rights”. 2 The intention of copyrights is based on the fundamental principle of the necessity to protect all original intellectual property that fall under the following categories: Literary works, Musical works including accompanying any works, Dramatic works including accompanying music, Choreographic works, Graphical and sculptural works, Motion pictures and other audiovisual works, Sound recordings, and Architectural works. However the intention of copyright law has become particularly stringent since its inception.

With the multitude of rights and privileges given to authors and copyright owners of original works the potential for negligence and compliancy toward informing licensees can occur with the final outcome of this situation being civil litigation. Negligence and compliancy can occur by the author or copyright owner by misrepresenting their work as being copyrighted, by labeling their work with the copyright symbol implying that they are the recognized owner or author but in actuality the duration of the work has expired therefore the work has entered public domain. Duration of most copyrighted works lasts for 50 years since the inception of the copyrighted work. In the case of Tams-Witmark v. New Opera Co., an opera company purchased the right to perform the comic opera “The Merry Widow” for $50,000 a year.

After a little more-than a year of performances, the opera company discovered that the supposed copyrighted work had entered public domain several years before due to the failure of the copyright owner to renew the copyright. New Opera Co. then ceased paying royalties, and after being sued by the owner of the abandoned copyright, counterclaimed for damages in the amount paid to the owner on a breach of warranty. The trial awarded the opera company $50, 500 in damages, and the court of appeals affirmed the judgment, finding that “The Merry Widow” “passed, finally, completely and forever into public domain and became freely available to the unrestricted use of anyone”. This judgment by the New York Courts of Appeals strongly supported the position that when the warranty of title to a copyright is breached because the work is in the public domain, the alleged copyright holder must provide restitution of any payment made by the licensee.

Though this decision protects licensees of paying bogus royalties for supposed licensing rights and being able to receive restitution for spurious payments but until copyright infringement laws become less stringent and provide and greater protection to licensees then the negligence of copyright owners will still exist and still congest the legal system with civil litigation. The issue of parody is one focal point to consider in the stringency of Canadian copyright laws. Parody under the Canadian copyright act is vaguely mentioned and is particularly stringent on copyright laws and is a model example of the stringency of Canadian copyright laws comparatively to the United States copyright laws. Parody or parodies falls under the issue of fair dealing under both the Canadian copyright act and the U.S copyright act. Under the Canadian copyright act parodies or criticism fall under section 27 stating that “The following acts do not constitute an infringement of copyright: any fair dealing with any work for the purposes of private study or research; any fair dealing with any works for the purposes of criticism, review or newspaper summary, if the source, and the author’s name, if given in the source”.

Under section 107 of the U.S copyright act it states “fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include – (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors”. Section 27 of the Canadian copyright act is comparatively more stringent then the U.S copyright act on fair dealing of parodies and the Canadian copyright act does not consider other factors involved in fair dealing such as the U.S. copyright act does.

In the case of MCA Canada Ltd MCA Canada Ltee v. Gilberny and Hawke Advertising, where an advertising agency prepared a parody of the words “Downtown” and used it for radio advertising purposes in Ottawa, it was held to violate MCA C …