Barring exceptions, the authorization of the copyright owner is required for the use of a work protected by copyright. However, it may happen that the owner of the copyright is not found. In these circumstances and in accordance with section 77 of the Copyright Act, the Board may issue a non-exclusive licence to those who request it.
It is important to note that the Board only issues a licence if the owner cannot be found. However, one cannot consider as untraceable an owner who has been identified but who cannot be contacted to give permission to use his work. In such a case, it is up to the requester to make arrangements with the owner and to agree with him in order to obtain authorization for the use of the work.
Obtaining a licence
To obtain a licence, the applicant must demonstrate that the following conditions set out in section 77 of the Copyright Act are met:
1) the work or the sound recording has been published and the performance of the performer or the communication signal has been fixed in material form.
The Board can only issue licences for the use of works that have been published. Section 2.2 of the Act defines publication in relation to works as making copies available to the public. The act of publication must be done with the consent of the copyright owner. Are excluded from the definition of publication the performance in public, or the communication to the public by telecommunication, of a literary, dramatic, musical or artistic work or a sound recording and the exhibition in public of an artistic work. If the works have not been published, the Board will not be able to issue a licence and the applicant will need to obtain legal advice to determine if the work can be used or not.
2) the work or other object of copyright is protected by copyright
A licence is not required if the work is no longer protected by copyright. Copyright generally expires 50 years following the end of the calendar year of the author’s death. A work that is part of the public domain can be used without a licence.
3) the applicant has made reasonable efforts to locate the copyright owner, but have been unable to do so.
The Board will only issue a licence if the applicant has done its best, in the circumstances, to find the copyright owner. Research must therefore be extensive.
Collective societies should be the starting point of any research. They administer the rights of several copyright owners and can grant authorizations for the use of the works they represent and specify the conditions for such use.
The applicant can also use online search engines or search publishers, libraries, archives, universities, museums and ministries of education. If the copyright owner is deceased, the applicant must try to find out who inherited the copyright or who administers the estate.
To request a licence from the Board, please complete the online form. Once all the necessary information has been received, the Board will analyze your request.
How long does it take for the Board to issue a licence?
The Board's service standard is 45 days to render a decision, once the file is considered complete. More complex requests may take longer.
Each request, however urgent it may be, must be carefully examined to ensure that all criteria established by the Copyright Act are met. It is therefore in the interest of the applicant to submit their licence application as soon as possible.
If the Board issues a licence, it will also fix the terms and conditions, such as the amount of fees to be paid and its duration.
The licence will specify the following aspects:
- authorized use (for example, the number of copies permitted, to whom they may be distributed and for what purpose);
- the effective date and the expiration date of the licence;
- payment details;
- any other condition deemed appropriate by the Board.
The licence issued by the Board covers only the uses mentioned therein. Any use not covered by the licence must be subject to a separate authorization.
In addition, licences issued by the Board are only valid in Canada. Outside the country, applicants are subject to the laws of each country in which they will use the work, even if the copyright owner is Canadian.
Who should the applicant pay the royalties to?
Usually, the Board orders that royalties be paid directly to the collective society which would normally represent the copyright owner. The company administers these amounts for the benefit of its members, but undertakes to reimburse the holder if the latter so requests within five years of the expiration of the licence.
The Copyright Act provides certain exceptions for the use of protected material. These exceptions include, among other things, the use of an insignificant part of a work, fair dealing (for research or educational purposes, for example) and reproduction for private purposes.
If the applicant believes that their intended use of the work falls under one of the exceptions provided for by law, they should seek legal advice in order to determine whether or not a licence is required, in which case it will not be necessary to file a file with the Board.