“Derivative Works” in Canada?

When we learned from this course that academic exam papers count as literary works,[1] and student notes can be literary works too, I started to wonder if a student take notes for a course, sell the notes, and earn a lot of money (because the notes / the professor are so popular), can the professor receive a portion the student’s earnings?


Canada takes a different approach to this question compared to the international copyright treaty or the US law. The concept of “derivative work” can be found in the Berne Convention for the Protection of Literary and Artistic Works, though not called “derivative work”:


Article 2(2) Translations, adaptations, arrangements of music and other reproductions in an altered form of a literary or artistic work, as well as collections of different works, shall be protected as original works without prejudice to the rights of the author of the original work.[2]


The U.S. Copyright Code defines “derivative work” extensively:


A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.[3]


The U.S. Copyright Code provides the copyright in a derivative work “extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work and does not imply any exclusive right in the preexisting material”.[4]


In Canada, “derivative work” is not defined in the Copyright Act, and the Supreme Court of Canada only briefly touched on this topic in the Théberge case.[5] Canada likely adopts a bifurcate approach to solve the student notes question in the first paragraph. When the student notes qualify as “original” (presuming other requirements for copyright are satisfied), which requires skill and judgement to have been put into the derivative work,[6] then the derivative work is “original”. No matter how much work the professor puts in their lectures, they don’t get any copyrights from the student’s course notes. Because there is no distinction between “original work” and “derivative work”, the student notes are likely as original as the professor’s work. If the student notes do not qualify as “original”, then the professor is lucky and walks away with all of the money from the sale of the student’s course notes. Derivative work was argued in a Nova Scotia case, MacNutt v Acadia University, 2016 NSSC 160, however the argument failed, potentially due to a lack of Canadian common law on this.


In comparison, the Berne Convention and US law differentiate the original work and the derivative work. The derivative work can be divided into different parts: 1) the original work; 2) the copyright-protected part of the derivative work; 3) others. Both the original work and the copyright-protected part of derivative work deserve their separate copyright protections. The copyright for the derivative work only covers the additions or changes to the original work, not the original itself.[7] As the Berne Convention Article 2(2) describes, the derivative work is protected as original works without prejudice to the rights of the author of the original work.[8] Going back to the student notes example, the part of notes that is directly from the professor’s lecture slides or course materials would be subject to the professor’s copyright. The part of notes that is the student’s analysis or thoughts on the professor’s lecture would likely be the student’s own copyright. Therefore, the professor might get a portion of the student’s earnings from selling their course notes, where the work is subject to the professor’s copyright.


The pros and cons of whether to take on the US and the Berne Convention approaches in Canada are obvious. The current “originality” analysis used by Canadian copyright law can be arbitrary, and potentially unjust to one author, either the student or the professor in the example, because only one of them can get benefits while both could have exercised some level of skill and judgment. A derivative author who might be denied copyright protection may be discouraged from producing the derivative work.[9] This would be against the object of the copyright statute to encourage creativity.[10] However, the US and the Berne Convention approaches can be complex and impractical. As opposed to the “romantic author” described in class, creativity might be thought of as connecting and remixing things. This means the US approach can create the model of “derivative of derivative of … of the original work” that might be challenging to solve.


[1] University of London Press, Ltd. v. University Tutorial Press, Ltd. [1916] 2 Ch. 601

[2] Berne Convention for the Protection of Literary and Artistic Works, Paris Act of July 24, 1971, as amended on September 28, 1979 Article 2

[3] 17 U.S. Code § 101, online: <https://www.law.cornell.edu/uscode/text/17/101>

[4] 17 U.S. Code § 103(b), online: <https://www.law.cornell.edu/uscode/text/17/103>

[5] Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34 [Théberge]

[6] CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 at para 16

[7] Wex Definitions Team, “Derivative Work”, online: <https://www.law.cornell.edu/wex/derivative_work>

[8] Supra note 2.

[9] Braithwaite, William J. “Derivative Works in Canadian Copyright law.” Osgoode Hall Law Journal 20.2 (1982): 191-231 at 208.

[10] Ibid.