Authorship and ownership in copyright law in Canada is an important and complex topic which lies at the nexus between Canada's Copyright Act, an important body of case law, and a number of compelling policy motives. Analysis of authorship and ownership of copyrightable works in Canada can proceed by examination of the rules determining the initial allocation of copyrights, rules governing subsequent changes in ownership, and finally rules governing complex works such as compilations.
Rules determining initial allocation of copyrights
Canadian copyright law sets out rules which determine who is to be the first owner of the copyright for a new copyright-able work. The rules cover different groups of people such as the authors of the work, employees who create works in the course of their employment, independent contractors who create works under contracts for services, and academics. It is helpful to think of the rules which set out in initial allocation of copyright as 'default' rules because the whole or a portion of the 'ownership' of the copyright may always be transferred to a different person in a contract of sale.
The first owner of the copyright: author
Section 13(1) of Canada's Copyright Act states that "[s]ubject to this Act, the author of a work shall be the first owner of the copyright therein." The courts have issued a number of decisions which provide some definition to the concept of who is an author according to Canada's Copyright Act. Two helpful decisions regarding the matter of who is an author are Gould Estate v. Stoddart Publishing Co. Ltd. and Donoghue v. Allied Newspapers Ltd.
Gould Estate and Donoghue cases
Gould Estate and Donoghue are two cases which help to define what an author is in the terms of the Copyright Act by providing examples of persons who are not authors. It has been stated that "[c]opyright exists in the expression of ideas or information, not in the information of ideas themselves."
In Gould Estate, the Canadian pianist Glenn Gould participates in a number of interviews with a freelance writer, John Carroll, who is gathering material for an article about Gould. Without the information from Glenn Gould to John Carroll, there would be no material for the magazine story. Nevertheless, it is Carroll who writes all of the ideas down into a concrete expression. The case makes it clear that the author is not the person who invents the ideas but is rather the person who fixes them into a concrete expression.
Donoghue is a very similar case on its facts and in its result. Mr. Donoghue was an ex-jockey who is under contract with Allied Newspapers to tell stories about his days racing horses so that the stories may be written down and printed in the newspaper. Although the column when published holds Donoghue out to be the author, the court decided that all of the writing was done by a newspaper staff member. As in Glenn Gould, the person who relates the story or the idea was held not to be the author because they did not fix the story into a concrete form and thereby transform it from an idea to an expression. The notion of fixation at play here is derived from Canadian Admiral Corp. v. Rediffusion Inc.
Gould Estate and Donaghue make it clear that fixation is a necessary condition for authorship, but they do not hold that fixation is a sufficient condition for authorship. So much is clear in Donoghue when Farwell J states that [I]f an author employs a shorthand writer to take down a story which the author is composing, word for word, in shorthand, and the shorthand writer then transcribes it, and the author then has it published, the author and not the shorthand writer is the owner of the copyright. A mere amanuensis does not, by taking down word for word the language of the author, become in any sense the owner of the copyright.
This qualification of the rule of fixation is supported by the facts of Donaghue because the court comments that "I doubt very much whether [Mr. Donaghue] would, unaided, find it easy to write a series of articles for any newspaper at all." This comment by the court reasonably permits the reader to conclude that in the opinion of the court, all of the skill and judgement in the expression of the article derived from the journalist. Consequently, the journalist was more than a mere scribe.
In summary, there is case law which provides that an author in the meaning of section 13(1) of Canada's Copyright Act must fix the work into a semi permanent form, but cannot be a mere amanuensis and must provide the originality and the skill and judgement of that expression.