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Copyright Symbol Explained
One of the most effective ways to inform the public that a work is protected by copyright is by marking the work with the copyright symbol: ©.
It is likely that all of us have, at one point or another, observed the copyright symbol. However, when dealing with the copyright symbol, it is easy to be led astray by the misinformation surrounding its relationship to copyright law in Canada, the benefits of using one to mark your work, and how to use the mark effectively.
Do I need to mark my work with the copyright symbol?
In Canada, copyright protection exists as soon a work is created (provided that certain conditions set out in the Copyright Act are met). As a result of this automatic protection, there are no formal requirements to register your copyright with the Canadian Intellectual Property Office (CIPO) or to have the copyright symbol © appear on your work. Note that, despite the absence of a requirement to mark your work with the copyright symbol, there are certain benefits to having the copyright symbol appear on your work (which are discussed below).
You may have heard that a work not marked with the copyright symbol is not protected by copyright. This is not true. Automatic protection of creative, original works is the law in Canada, the United States, and other contracting parties of the Berne Convention for the Protection of Literary and Artistic Works (the “Berne Convention”). An international agreement dating back to 1886, the Berne Convention outlines three basic principles and contains a series of provisions for minimum copyright protection to be granted to authors and creators (one such example is the minimum amount of time copyright protection must be granted to a work).
Automatic protection is one of the principles of this international framework. For this reason, protection of copyrighted works cannot be conditional upon compliance with any formality, including, for example, using the copyright symbol. In other words, not marking your work with the copyright symbol will not, by itself, be detrimental to your claim of copyright in and to a work. Of course, if you are a producer or owner of a creative work in a country not a signatory to the Berne Convention, you should consult intellectual property counsel on copyright laws in those countries.
One possible explanation for the misinformation on the repercussions for copyright owners as a result of omitting the copyright symbol may be found in copyright law in the United States. Before 1988 - when the Berne Convention came into effect in the United States - the omission of the copyright symbol (also referred to as a copyright notice) could have serious consequences for the copyright owner. In some cases, for example, the copyright owner could have their copyright invalidated. Given Canada’s relationship with and close proximity to the United States, it is not surprising that, despite the formal requirement to do so, adopting the copyright notice became a common practice for copyright owners.
Benefits of marking your work with the copyright symbol
While marking your creative work with the copyright symbol is not a requirement for copyright to subsist in a work, doing so provides you with it at least three benefits.
First, it notifies the public and potential infringers of your copyright. Marking your work with the copyright symbol can function as an effective deterrent to potential infringers as it signals that you are aware of your rights. Further, it may deter unauthorized use of your work out of fear that, as an informed party, you will enforce your rights. Use of the copyright symbol won’t deter every entity determined to reproduce your work without your permission, but by taking the extra step to notify the public, you are likely to make at least some people think twice.
Another benefit of marking your work with the copyright symbol is that it creates a presumption of ownership. A defendant in an infringement proceeding can challenge the existence of copyright in a work or the plaintiff’s title to the copyright in issue. Affixing copyright notice to your work can be an effective mechanism against such a claim. If, for example, the copyright notice contains your name, it creates a presumption that you are the author of the work unless proven otherwise. Careful care should be taken to include your name. In one dispute over ownership of copyright, the Federal Court found that the publisher of a book was the owner of the copyright in question since, among other considerations, the copyright notice did not indicate the name of the author but that of the publisher.
Finally, notice of copyright is advantageous because it may shield you from a provision of the Copyright Act which limits the statutory damages recoverable from a defendant. Under subsection 38.1(1) of the Copyright Act, a copyright owner who is successful in a copyright infringement suit may elect to obtain statutory damages. Statutory damages are a prescribed range of damages that the Court can award the plaintiff per work infringed. If a plaintiff elects to obtain statutory damages, a defendant can limit the statutory damages by proving they were unaware they were infringing copyright. Marking a work with the copyright symbol makes it much more difficult for a defendant to argue that they were unaware they were infringing that copyright.
Providing Notice of Copyright
To give notice of copyright, you should mark your work with the © together with your name and the year of first publication. A copyright notice can look like, for example, © Heer Law 2022.
A common practice is to include this notice of copyright as a watermark. If you are a digital artist, for example, you may want to have the faint text superimposed on your digital artwork in an area of your work where it cannot easily be cropped out. This will not deter dedicated infringers, but an image with a watermark that is difficult to remove is likely to be less attractive than work not containing a watermark or one containing a watermark that is easily removable. If you are interested in learning more on this topic, read our dedicated resource about how to protect your work online.
As a final word of caution, marking your name on someone else’s work does not transfer or assign the intellectual property rights in and to a work from the copyright owner to you. You should mark your name on a work only if you are entitled to do so.
Conclusion
If you would like our help with copyright, contact us for a complimentary and confidential initial telephone appointment with a member of our team.
