Re: Canadian Works for Hire

From: Bernard Katz <bkatz[_at_]uoguelph.ca>
Date: Mon, 7 Apr 1997 19:49:02 -0400 (EDT)

On Sun, 6 Apr 1997 Chuck Meyer <chuck_meyer[_at_]juno.com> wrote:
>
> I apologize if this has been addressed before, but does anyone know
> if there is any doctrine in Canada that is equivalent to our works
> for hire doctrine. Up to this point, I have treated Canadian
> employee works as belonging to the corporation and Canadian
> contractor works as belonging to the contractor in the absence of
> an assignment to the corporation. How far off the mark am I?

I believe you are pretty well on the mark. Canadian copyright law is based on the principle that the author is first owner, with a very few exceptions. Where a work is made under a contract of service or apprenticeship and in the course of employment, the employer is the owner -- unless there is a contractual agreement to the contrary. When a work is created under a contract *for* service (ie. by a "freelancing" person acting as a consultant, professional service provider, contractor, etc.), then the author is the first owner, unless there is a contractual agreement to the contrary. This does not affect moral rights, which cannot be assigned, but can be waived (cf. famous case of sculptor Snow vs. Eaton's of Canada, who had commissioned the work and owned it and the copyright).

The determination as to when there is an employer-employee relationship, as opposed to the more independant status, is not delineated in statute. I defer to the Canadian lawyers on this list to discuss the niceties of which elements would be considered important by a Canadian court in order to find the facts.

Another similar situation exists with respect to a photograph. Here the owner of the negative when the photograph was taken is considered to be the copyright owner. However, if the photograph was commissioned or made in the course of a contract of service or apprenticeship, the copyright belongs to the person who commissioned it, employed the photographer, etc. -- unless there is a contractual agreement to the contrary. The current bill to amend the Canadian Copyright Act, Bill C-32, may change this sit'n.

Bernard Katz, Head, Special Collections and Library Development

              University of Guelph Library, Guelph, Ontario
	  and Chair, Copyright task Group, Ontario Library Asociation

bkatz[_at_]uoguelph.ca // (519) 824-4120 X2089 // FAX: (519) 824-6931 Received on Mon Apr 07 1997 - 23:50:57 GMT