Introduction

Ontario is home to some of the world’s most impressive art displays. Some of these displays are in notable art galleries like the National Gallery of Canada or the Royal Ontario Museum. Other pieces are more publicly accessible, such as the art found in Toronto’s infamous Graffiti Alley and a piece by Banksy which can be found in the PATH at One York. Despite the varying degree of access the public may have with art in Canada, it is important to remember that public artwork is considered artwork, and as such, is protected by Canada’s expansive copyright legislation.

Canada’s Copyright Regime

In Canada, copyright refers to a bundle of rights conferred by the Copyright Act (the “Act”) on the copyright owner and the author of the work. The owner of the copyright has the sole right to produce or reproduce a work in any form, and the sole right to exhibit the work in public. Copyright provides protection for artistic works, including public art.

Under the Act, copyright applies to all original artistic works, including paintings, drawings, photographs, designs and sculptures, provided that the conditions in the Act have been met. These conditions include:

1. The work must be original, in that it involves some intellectual effort or skill;

2. The work must be affixed in some permanent manner.

Once these conditions are met, the copyright owner of an original artistic work can benefit from the economic and moral rights granted by the Act. The owner does not need to register for copyright. However, there are benefits to registration, including proof of ownership in a case of copyright infringement, and “statutory damages” if the work is infringed. These remedies are enforceable by the owner and are not policed by the Canadian Intellectual Property Office (CIPO) itself.

If art is public is it still protected? Are sculptures/ architecture protected?

The level of copyright protection does not vary depending on whether the work is displayed or affixed. Under the Act, copyright owners have “the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof”.

The Act gives copyright owners the right to “produce, reproduce, perform or publish any translation of the work; to reproduce, adapt and publicly present the work as a cinematographic work; to communicate the work to the public by telecommunication, to present at a public exhibition, for a purpose other than sale or hire”. Thus, copyright protection exists regardless of where the work is displayed.

Copyright protection applies to “artistic work”, and includes, among other things, paintings, drawings, photographs, engravings, sculptures, works of artistic craftsmanship, and architectural works. Interestingly, architectural works includes any building or structure or any model of a building or structure. However, copyright is not infringed when a person reproduces the architectural work that is permanently situated in a public place or building in a photograph, painting, or cinematographic work so long as the reproduction is not in the nature of an architectural drawing or plan.

Fair Dealing and Exceptions to Copyright Infringement

The Act contains exemptions to infringement which are known in Canada as “fair dealing”. These exemptions allow copyright protected works to be used without the permission of the copyright owner if certain conditions are met. Fair dealing typically includes non-commercial use of a copyrighted image whereby a user does not derive financial gain. Copyright infringement exemptions include usage for:

• Research;

• Private study;

• Education;

• Parody;

• Satire;

• Criticism and review;

• News reporting;

• Non-commercial user generated content, with certain conditions; and

• Reproduction for private purposes, with certain conditions.

“Illegal” Artwork and Protections under Canada’s Copyright Regime

One interesting area of law which has not been fully explored in Canada is the matter of illegal artwork. While some artists have been commissioned to add their unique artwork to many of Canada’s urban landscapes, others have attempted to do so without permission. This raises an interesting question: does illicit artwork, such as graffiti produced without permission, receive copyright protection?

Based on the conditions set under Canada’s copyright regime, graffiti satisfies the two conditions necessary for protection. In addition, under section 13(1) of the Act, similar to other artistic works, the graffiti artist is considered the owner of the copyright, and retains ownership rights. This includes the artist’s moral rights, which entitles the artist to the integrity of their work. Typically, when an artist’s work is damaged or altered in a manner that could damage their honour or reputation, or if it is used with a product or service without their consent, the artist can be entitled to damages for infringing on their copyright. Thus, where graffiti is altered or damaged, even when it is in a public place, the graffiti artist can be entitled to damages.

The interaction between the Act and illicit graffiti creates an interesting situation. While the law does not typically protect illegal actions, it appears that illicit graffiti, notwithstanding its illegality remains protected from copyright infringement under the Act. Copyright is infringed where a person, without the copyright owner’s permission, does anything to a work that the individual cannot do without the owner’s permission. Nothing in the Act states the work must not be illegal to be protected. As a result, it is not unreasonable to assume that illicit art, such as some graffiti, will be protected and subject to Canada’s copyright laws.

Conclusion

Whether a piece of artwork is legal or not, the copyright owner should always be contacted prior to using their work. A failure to do so can result in unintended consequences including penalties under Canada’s copyright laws and can result in a long and protracted legal battle.

For more information about protecting and enforcing copyright, please feel free to contact me.