Magazine Industry Resource Library
Law - Publishing

Daniel Urbas is a lawyer with Woods & Partners. His practice focuses on media law, intellectual property, e-commerce and litigation. He can be reached at

The contents of Publishing Law should not be construed as legal advice offered by Masthead or Mr. Urbas. Readers should consult their own lawyers before acting.

Column for January 2001
Copyright Essentials: A Question-and-Answer Guide to Copyright for Publishers

What is copyright and when does it exist?

Copyright exists in all original literary, dramatic, musical and artistic works. Copyright is the sole right to produce or reproduce a work or any substantial part thereof in any material form whatever, including any translation of the work. Copyright subsists in every original work where the author was, at the date of making the work, a citizen or subject of Canada or a country which has signed international copyright treaties with Canada, such as France and the U.S. The same is true if the author was ordinarily resident in Canada or a treaty country.

Our publishing company employs graphic artists. Who owns the copyright in the illustrations they create?

Generally speaking, where the author of a work is in the employment of the some other person under a contract of service and the work was made in the course of her employment by that person, the person by whom the author was employed is, in the absence of any agreement to the contrary, the owner of the copyright. Thus, your publishing company owns the copyright unless you and the illustrator have agreed otherwise.

Do the same rules apply if a magazine employs the illustrators?

An employment relationship usually means that the employer owns the copyright. The key exception is when the employee's contribution is to a newspaper or magazine. In that specific case, the non-owner employee has the right to prevent the owner magazine from publishing the material elsewhere than in that magazine. This is true for articles, illustrations or photographs created by employees of a magazine or newspaper.

Do authors have any other rights, in addition to copyright?

Authors also have moral rights. Moral rights are the right, where reasonable in the circumstances, to be associated with the work as the author by name or under a pseudonym, such as a byline, and the right to remain anonymous. Moral rights cannot be assigned but can be waived in favour of someone. An assignment of copyright does not automatically include a waiver of moral rights. Moral rights are infringed if the work is, to the prejudice of the honour or reputation of the author, distorted, mutilated or otherwise modified or used in association with a product, service, cause or institution. Thus, a photograph or song cannot be used to endorse a political candidate unless the author agrees even if she no longer owns the copyright. A plagiarist infringes not only copyright but also moral rights because she not only copies a substantial portion of the author's work but fails to identify the author by name.

Can magazines claim copyright in their issues?

A magazine owns the copyright in the overall issue as a compilation. A compilation is a work resulting from the selection or arrangement of literary or artistic works or parts thereof. While each individual text, illustration and photograph enjoys its own copyright protection, a magazine owns the copyright in the compilation of individual elements.

Who owns the copyright to the cover?

The magazine owns the copyright if the cover is a combination of photo, text and illustration. Independent copyright exists in a compilation of distinct copyright elements. Covers are often dominated by a photo but the banner and text highlights are sufficient to create copyright in the cover as a whole/compilation. However, the magazine's copyright in the cover does not eliminate the copyright in the individual elements owned by the photographer, etc.

As a copyright owner, what types of rights could I grant in my work?

As the owner of the copyright, you may assign the right, either wholly or partially, and either generally or subject to limitations relating to territory, medium or sector of the market on other limitations. You may also assign the right either for the whole term of the copyright or for any part of the term and may even license the right.

Are there any special formalities I must respect in assigning or granting those rights?

Definitely. No assignment or grant of copyright is valid unless it is in writing signed by the owner of the copyright or by her duly authorized agent.

The magazine I work at has given me the responsibility of finding content for the magazine's planned web site. Can I copy the magazine's print archives onto the magazine's web site?

Check your files before loading any content from your print issues onto your server. Unless your magazine's original grant of a license to publish the material in its print version also included the electronic rights in addition to the print rights, you will likely require the copyright owners' permission. Recent class actions filed by freelancers assert that prior industry standards did not include the assignment of rights for electronic publication.

Several illustrations published in a recent issue were used without the owner's permission. Are we liable for the copyright infringement?

Yes. However, the Copyright Act says that a court may not award a remedy for copyright infringement unless proceedings are commenced against the defendant within three years after the act of infringement occurred. That delay applies in cases where the plaintiff knew or could reasonably have been expected to know of the infringement at the time it occurred. In cases where the plaintiff did not know or could not reasonably have known of the infringement at the time it occurred, the proceedings must be commenced within three years after the time the plaintiff first knew or could reasonably have known of the infringement.

I would like to reprint a series of essays published in the late 1940s by four Canadian writers. Do I need anyone's permission to reprint the essays?

It depends. Copyright subsists for the life of the author, including the remainder of the calendar year in which the author dies, and a period of fifty years following the date of that calendar year. Let's assume your authors are all Canadian citizens and that A died May 1, 1946, B died May 1, 1949, C died last year and D is still living.

The term of the copyright in A's essays has expired and you may publish the essays without needing to obtain permission. The same is true for B. You must still seek the permission of C's estate and that of D.

Do photographs have the same term of copyright?

The term for copyright in a photograph is the remainder of the year in which the initial negative or plate from which the photograph was derived, or the initial photograph if no negative or plate existed, and a period of fifty years following the end of the year.

At our magazine, we use photos taken by freelance photographers. Who owns the copyright in those photos?

Where a magazine orders an original photo and that photo is made for money expressly pursuant to that order,the magazine is deemed to be the first owner of the copyright. For this rule to apply, however, the magazine which gave the order must also have actually paid the money to the photographer. The parties can, however, agree to the contrary. The issue then is whether the magazine ordered a photo to be created from scratch or did the magazine simply order a copy of a pre-existing photo already taken by the photographer. If the magazine merely orders a copy of a stock photo, then the photographer retains ownership in the photo. Ownership of the photo therefore depends on the particular facts of each photo assignment.

The freelancer owns whatever photos he took before the order. However, if the magazine gives the photographer a new assignment and says "create a photo of this," then the magazine owns the resulting photo, provided full payment is actually made.

Do I have to register my copyright in order to have protection?

No. Unlike a patent or an industrial design, it is not strictly necessary to register copyright in order to enjoy copyright protection. Copyright exists by virtue of creating the work and not by virtue of registration. However, that being said, registration is simple and relatively inexpensive. A certificate of registration eases some evidentiary problems in Court and may entitle you to damages. A copyright owner can only obtain an injunction against a defendant if the defendant proves that he was not aware and had no reasonable grounds for suspecting that copyright subsisted in the work he copied. However, that defense is not available if the copyright owner had duly registered the copyright in the work at the date of the infringement.

I write a column on new dessert recipes which I have personally invented through trial and error. Without my consent, a chain of cafés has reprinted my recipes in large store front posters and sold cakes made from my recipe. Can they do that?

Ownership of the copyright in your recipes gives you the sole right to produce or reproduce the text or any substantial part thereof in any material form. Therefore, the cafés cannot make poster size reproductions of your recipes without your consent. However, "in any material form" does not include the dessert produced from the recipe. It is important to remember that copyright protects the expression of an idea but not the idea itself. A recipe is essentially an individual set of instructions for the production of a dessert. An individual who follows a set of instructions and produces a dessert does not infringe the author's copyright but merely uses the ideas contained in the work.

Can I patent the ideas in my recipe then?

Unlikely. A patent protects inventions which meet three criteria. First, the invention must be new, namely the first in the world. Second, it must be useful. It must not only work but have a useful function. Third, it must demonstrate ingenuity in the sense that it was not obvious to individuals skilled in the technology involved. Through a patent, the government grants you as the inventor the right to exclude others from making, using or selling your invention for a period of 20 years from the day you file your application. During that time, you may sell or license the patent to others. However, you may not disclose the invention before filing the application, unless you apply for your patent in Canada within one year of the disclosure.

When a book reviewer quotes extracts of a book, is that copyright infringement?

No. Copying for the purpose of criticism, review or newspaper summary does not infringe, provided the source and the author of the work are mentioned. This exception, known as fair dealing, also includes any fair dealing for the purpose of private study or research.

Does a parody infringe the copyright in the parodied work?

A parody is a work which seeks, in good faith, to criticize, caricature or ridicule another work. Parody necessarily borrows from the original, earlier work in order to achieve its goal. However, despite serving as a form of social or artistic criticism, parody does not benefit from any more lenient rules than other copying. The test is whether the parody copies a substantial part of the original work. The object of the copying must be for criticism or reporting. The parody must reflect the parodist's own labour, imagination and talent in altering the copied portion into an original work. Parody cannot be used as a way to avoid creative effort in order to benefit from the success of the original work.