I hand-embroidered a design that lays out the elements of copyright, with main authorities and a few little icons. Each element has a checkbox, a few key words, and is in a different colour. Please see picture below!
- Residency Requirement:
Authorities:
S 5, Copyright Act (RSC, 1985, c.C-42) [CA]: Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work if any one of the following conditions is met:
- in the case of any work, whether published or unpublished, including a cinematographic work, the author was, at the date of the making of the work, a citizen or subject of, or a person ordinarily resident in, a treaty country;
Requirement Met?
- Requirement likely met.
- The work was made in October 2022 during which time, I was (am) a citizen of Canada.
- Fixation Requirement:
Authorities:
Canadian Admiral Corp v Rediffusion Inc., [1945] Ex. CR 382, 20 CPR 75: must be fixed in tangible form
Gould Estate v Stoddart Publishing Co Ltd (1998), 39 OR 555: Photos and transcripts fixed within a book make it a creation and expression.
Requirement Met?
- Requirement likely met.
- The work was created and expressed via threads on a linen piece of fabric held in a circular wooden hoop. As Stoddard was found to have copyright in photos and transcripts of conversations fixed within a book, my project fixes the elements of copyright as a “transcript” onto a visual medium, clothing it in a tangible form.
- Originality requirement:
Authorities
S 5, CA: Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work….
CCH Canadian Ltd v Law Society of Upper Canada [2004] 1 SCR 339 [CCH] : to be original, must be an exercise of skill (knowledge, developed aptitude or practiced ability in production) AND judgement (capacity for discernment or ability to form an opinion of evaluation by comparing different possible options in producing the work).
Requirement Met?
- Requirement likely met.
- Skill: I developed knowledge and aptitude for embroidery during the pandemic. I learned how to do stem stitches and back stitches for lettering, which I employed throughout. I also learned how to knot off/finish hoop designs.
- Judgement: I show an ability to form an opinion/discernment by evaluating and finally choosing (1) layout; (2) check-box design; (3) colours of words; (4) print style; (5) icon additions.
- The project is made up of independently composed features, and took skill and judgement to make and arrange, just as it took skill and judgment to make and arrange headnotes and summaries of legal cases in CCH. While my labour may not be perfect or appealing to all, intellect and creativity are not notions of the originality test due to their overly subjective nature. Further, my work is more than mere mechanical copying of the elements of copyright – I had to distill down to key elements and phrases and translate that to writing via embroidering.
- Work requirement:
Authorities:
S 5, CA: Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work if any one of the following conditions is met:
S 2, CA: Artistic work includes paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works and compilations.
DRG Inc v Datafile Ltd [1988] 2 FC 243 [DRG]: labels are an artistic work because they are an expression in a visual medium and do not need to assess “artistic”-ness nor address intention of the creator.
Requirement Met?
- DRG affirms that there is no “artisticness” test because that would mean the Court would have to determine what is “artistic” for enumerated works versus those falling in broad categories. Given the subjectiveness of “artistic,” just as in the originality test from CCH, notions of “artistic merit” are not included in the test. DRG clarifies that an “artistic work” is a “generic description” that can “find expression in a visual medium.”
- In DRG,, colour-coded labels for filing were found to be artistic works as they were expressed on a visual medium. The labels go beyond a functional tool for filing or measuring by appealing to aesthetic senses, and their design features combine to make an effective visual presentation.
- My project would likely be considered an artistic work. While it is not a painting or drawing per se, it involves similar tools for creation: Instead of a brush or pencil, there is a needle, and instead of paint or coloured pencils, there is thread. As neither artisticness nor my intention need to be considered, I have expressed the elements of copyright in thread on a linen fabric that can be hung on a wall, e.g., expressed in visual form. My work can be seen to go beyond a teaching technique, e.g., a check-list, because it includes design features like icons and coloured highlighting that gives it an effective visual presentation.
- Expression requirement:
Authorities:
Kenrick and Co v Lawrence and Co (1890) LR 25, QBD 99: Facts and ideas are not copyrightable.
Donoghue v Allied Newspapers Limited (1937) 3 Ch. D. 503: Owner of copyright is the person who has clothed the idea in form.
Maltz, Bird and Sherman v Witterick and Penguin 2013 FC 524 [Maltz]: Facts are public and facts are facts.
Requirement Met?
- Potentially not met.
- In Kenrick, the drawing in question was a representation of a hand holding a pencil to complete a voter card — a mechanical representation of an operation that is commonplace. In these cases, copyrights are limited to the drawing itself over the idea, e.g., an exact line-for-line duplication.
- Here, the information put forward, the elements of copyright, are accessible through many resources (Maltz). While I came up with the design and colour options myself, the wording was distilled from common sources, and the icons are commonplace — a maple leaf and a lightbulb, for example. Furthermore, the piece could be construed as an empty chart or checklist, which is not subject to copyright as per s 2.. Said another way, this checklist I have made is like a recipe where ingredients, ie., elements of copyright, need to be checked off. Recipes are seen as facts in the world, and not subject to copyright protection (Maltz). While it would appear that I have “clothed the idea in form,” as a craft, it would likely not be subject to copyright, just as fashion is not subject to copyright due to gendered stereotypes and a “common shared history” (Kristy Roberston, “Embroidery Pirates and Fashion Victims: Textiles, Craft and Copyright” 2015, Cloth and Culture 8:1 86-111).
Conclusion:
I made an embroidery project that colourfully listed the elements of copyright with key words and authorities highlighted with some icons. In assessing whether or not my craft is subject to Copyright in Canada, I went through the elements I spent hours stitching. The residency, fixation and originality requirements are likely the easiest to meet as I am a resident in Canada, and fixed my design on a linen cloth with an exercise of skill and judgement. As my design is an expression in a visual medium that does not require an assessment of “artistic-ness,” my design can likely be seen as a general artistic work or an engraving as in DRG. However, due to gendered stereotypes (and some colonialism), things like recipes, crafts and fashion were excluded from Copyright early on. As my “checklist” is most similar to a recipe, and is in fact a craft, it may be seen as commonplace information that is widely available. However, if I could establish that the piece as a whole is a compilation of works, I may succeed in establishing Copyright for my work.
Communications Law