Are Video Games Protected under Canada’s Copyright Act?
Gowling WLG lawyers addressed various entertainment law issues in 2018,1 including video games under the Copyright Act.
“In Canada, copyright subsists in every original literary, dramatic, musical and artistic work, in a performer’s performance and in sound recordings. While the Canadian Copyright Act does not identify video games as a specific type of work and the courts have not directly stated what type of ‘work’ video games fall under, the courts have recognized that video games are protected under copyright.
“The Copyright Act provides that the ‘author’ of the work is the first owner of the copyright. The Copyright Act does not define the term ‘author.’ Determining who the author is will depend on the specific facts of each case; however, in general, an author will be a person who exercises skill and judgement in the creation of the work.
“Being the author of a video game does not necessarily make that person the author of the copyright-protected components incorporated into the game. Potentially, any development team member who has contributed to a video game could be considered an author of a copyright-protected work that is incorporated into the video game, assuming they have exercised skill and judgement in the creation of the work.
“The authorship of a video game was considered by the Superior Court of Québec in 2015. The plaintiff, an artist who contributed visual content used in the video game, was not found to be an author of the video game itself. However, he was found to own copyright in his artistic works, which were incorporated into the video game. The video game developer was ordered to pay $10,000 as compensation to the plaintiff for the use of his work.
“This doesn’t mean that developers now need to hunt down every person who has ever contributed to their video game. Under the Copyright Act, if an author of a copyright protected work is in the employment of another person under a contract of service and the work was made in the course of that employment, the employer will be the first owner of copyright in the absence of an agreement to the contrary. This provision does not apply to work done by independent contractors.
“All of this goes to show that video game creators must be careful to include copyright assignment or licensing provisions in their contractor agreements in order to ensure that they in fact control all necessary copyrights. Seeking proper legal advice at an early stage can ensure copyright ownership goes to the proper entity to allow game creators to effectively exploit and protect their work.”
Fasken Martineau DuMoulin LLP noted that they “advised the dealer syndicate in a public offering of approximately $83 million of subscription receipts to finance a portion of the purchase price paid by the Stingray Digital Group Inc. to acquire Newfoundland Capital Corporation Limited, one of Canada’s leading broadcasters, which operates radio stations in Canada, including Boom 97.3 in Toronto, on May 2, 2018, for a total sum of approximately $506 million.
“The acquisition will be financed through $450 million new credit facilities and $180 million of equity, comprised of a $83 million bought deal offering of subscription receipts, a $40 million private placement of subscription receipts to Caisse de dépôt et placement du Québec, $40 million share exchange to NCC shareholders and $17 million from the exercise of preemption rights from the Boyko Group.”
- “Rules of the Game (Part 1): Copyright Protection of Video Games in Canada.” Gowling WLG, August 20, 2018. https://gowlingwlg.com/en/insights-resources/articles/2018/rules-of-the-game-part-1/.