Copyright Board Canada
Canada

UNLOCATABLE COPYRIGHT OWNERS

BROCHURE

What is the Copyright Board of Canada?

The Copyright Board is an economic regulatory body empowered to establish, either mandatorily or at the request of an interested party, the royalties to be paid for the use of copyright works, when the administration of such copyright is entrusted to a copyright collective society. The Board also has the right to supervise agreements between users and licensing bodies and has the power to issue licences for the use of works when the copyright owner cannot be located.

So, if you wish to use a published work in which copyright subsists and if you satisfy the Board that you have made reasonable efforts to locate the copyright owner and the owner cannot be located, the Board can issue a non-exclusive licence authorizing you to do what you wish to do.

What is copyright?

Copyright is a property right granted by law to authors, composers and performers and other creators. To copy extracts of books or magazines, make copies of a song or of a recording for others, perform a play in public or make any other uses of a work protected by copyright, you need the copyright owner's consent. The copyright owner may be the original creator, that person's heirs or the publisher. If you cannot find the copyright owner, Section 77 of the Copyright Act describes how the Board may intervene. It reads as follows:

77 (1) Where, on application to the Board by a person who wishes to obtain a licence to use

(a) a published work,
(b) a fixation of a performer's performance,
(c) a published sound recording, or
(d) a fixation of a communication signal

in which copyright subsists, the Board is satisfied that the applicant has made reasonable efforts to locate the owner of the copyright and that the owner cannot be located, the Board may issue to the applicant a licence to do an act mentioned in section 3, 15, 18 or 21*, as the case may be.

(2) A licence issued under subsection (1) is non-exclusive and is subject to such terms and conditions as the Board may establish.

(3) The owner of a copyright may, not later than five years after the expiration of a licence issued pursuant to subsection (1) in respect of the copyright, collect the royalties fixed in the licence or, in default of their payment, commence an action to recover them in a court of competent jurisdiction.

* These can be found on the Board's Web site www.cb-cda.gc.ca/information/index-e.html.


WHAT YOU HAVE TO CHECK FIRST

Do you need a licence?

You do not need a licence if the work is no longer protected by copyright or if what you plan to do is not protected by copyright.

The work is no longer protected by copyright

Generally, copyright in works expires 50 years following the end of the calendar year of the creator's death. There are special rules for works of joint authorship or for works for which the crown holds copyright. After copyright protection has expired, a work is considered to be in the "public domain". It is crucial to remember, however, that new editions of a work that is in the public domain may contain elements that are protected by their own copyright (such as footnotes, editorial comments, cover art) even though the original work is not.

Sound recordings are also protected separately from any work which they may contain. In a 1990 recording of music from a composer who died in the 1800s, the recording is protected but the music is not. In a 1945 recording of music composed by a person who died in 1960, the music is protected but the recording is not.

The intended use is not protected by copyright

You also do not need a licence if the intended use is not protected by copyright. There are a few specific exceptions to the copyright owners' exclusive right to authorize the use of their works "or any substantial part thereof in any material form whatever". For instance, fair dealing for the purposes of research or private study is allowed. So is copying of sound recordings for a person's own private use. However, the courts tend to interpret these exceptions restrictively.

Educational institutions, libraries, archives and museums also benefit from a number of exemptions. These are set out in sections 29.3 to 30.4 of the Copyright Act.

Has the work been published?

The Board can issue a licence for the use of a work only if it has been published, which means making copies available to the public with the copyright owner's consent.

Will you use the work outside Canada?

A licence from the Board is only valid in Canada. Outside Canada, you are bound by the laws of each country in which you use that work, even if the author is Canadian.

Does a copyright collective society administer the copyright owner's interests for the use you intend to make of the work?

A copyright collective society is an organization that administers the rights of several copyright owners. It can grant permission to use their works and set the conditions for that use. Collective administration is widespread in Canada, particularly for music performance rights, reprography rights and mechanical reproduction rights. Some copyright collective societies are affiliated with foreign societies; this allows them to represent foreign copyright owners as well.

Have you done everything you can to find the copyright owner?

The Board will grant a licence only if you have made every reasonable effort to find the copyright owner. You must therefore conduct a thorough search. There are many ways you can locate a copyright owner. Try as many as you can before applying to the Board.

Even if you do not know the name or address of the copyright owner, your search may be easier than you think. Start by contacting the copyright collective societies that deal with uses you are interested in. One of them may represent the copyright owner and be able to provide you with the owner's name and address or tell you whether the owner is dead or living abroad. Other options include using the Internet, contacting publishing houses, libraries, universities, museums and provincial departments of Education. If the author is no longer alive, try to find out who inherited the copyright or who administered the estate.

The Board can provide you with a list of copyright collective societies and their respective mandate and other sources of information. The list of copyright collective societies can also be found on the Board's Web site at www.cb-cda.gc.ca/societies-societes/index-e.html.


PREPARING YOUR APPLICATION

Submit your licence application in writing. There is no set form for doing this. However, the Board will need the following information (if it is available) to deal with your application:

  • a description of the work (type, title, year of production, etc.);

  • the names and nationalities of the creator (author, performer, producer, broadcaster, as the case may be), of the copyright owner and of the publisher;

  • if the creator is dead, the date of death;

  • how you intend to use the work. Be specific and provide as much detail as possible. For example, if you wish to include written material in a book, indicate the length of the text, that of the book, how it will be used and, if it is to be sold, the suggested retail sale price. If possible, provide a copy of the material to be used;

  • how soon you plan to use the work and for how long;

  • any information as to what royalties you are paying or have paid for similar uses of similar works;

  • a detailed description of all efforts made to try to locate the copyright owner and the results. Provide copies of any relevant material, including any correspondence;

  • the name, title, address, telephone number, fax number, e-mail address of the person who prepared the licence application and the identity of the person or entity seeking a licence if it is someone other than the person who prepared the licence application.

If the Board comes to the conclusion that you have done everything you could to find the copyright owner, it can then issue a licence.

Once all the required information has been received, a decision can usually be issued within 30 to 45 days. Each application, no matter how urgent, has to be carefully scrutinized to ensure that every reasonable effort has been made to locate the copyright owner. Therefore, do not wait until the last minute before submitting your application.

If the Board issues a licence, it will also set the terms and conditions, such as the amount of royalties to be paid and the duration of the licence. The licence will specify the following:

  • the authorized use (for example, how many copies you can make, to whom you may distribute them and for what purpose);

  • the expiry date of the licence;

  • the licence fee.

    [The Board usually orders that the payment of the royalties fixed by the licence be made directly to a copyright collective society that would normally represent the unlocatable copyright owner. Therefore, the copyright owner will be able to approach the copyright collective society to recover the royalties. The Board allows the copyright collective society to dispose of the royalties as it sees fit for the general benefit of its members. The copyright collective society however, undertakes to reimburse any person who establishes, within 5 years after the expiry of the licence, ownership of the copyright of the work covered by the licence].

  • any other terms and conditions the Board considers appropriate.

The issuance of a licence by the Board does not release the licensee from the obligation to obtain permission for any other use not covered by the licence.

FOR MORE INFORMATION

Contact: The Secretary General
Copyright Board of Canada
56 Sparks Street
Suite 800
Ottawa, Ontario K1A 0C9

Telephone: (613) 952-8621
Facsimile: (613) 952-8630
E-mail: secretariat@cb-cda.gc.ca
Web site: www.cb-cda.gc.ca