Canadian Copyright Law – Introduction
Canadian Copyright Law: Does Digitally Restoring Public Domain Films Revive Copyright? Copyright can be a muddy area of law, despite the Copyright Act (Canada). One reason is the difficulty the law has in keeping up with emerging technologies. The digital restoration of old films is one example.
This is an era of digital restorations and re-releases of old films but the copyright status of those restorations is unclear. Does the digital restorer have copyright in the restored version of a public domain film or can it be freely used by a third party on the basis that the film is in the public domain?
This blog explores how, if at all, digitizing and/or restoring a film is treated under copyright law in Canada? More specifically, if the film in the public domain and copyright has expired, is the digital restoration of the film result in a copyright in the digitally restored version?
The Nature of Copyright
Copyright law in Canada is governed by the common law and by the Copyright Act (the “Act”) Copyright subsists in every original literary, dramatic, musical, and artistic work if it meets certain requirements set out in the Act.
The threshold for what is “original” is not particularly high. What is required is an exercise of skill and judgment: the work must be more than a mere copy of another work, but it need not be creative.
In CCH Canadian Ltd. v Law Society of Upper Canada  1 SCR 339, the Supreme Court of Canada wrote the following about the exercise of skill and judgement:
[Skill, means] the use of one’s knowledge, developed aptitude or practiced ability in producing the work. [Judgment means] the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. For example, any skill and judgment that might be involved in simply changing the font of a work to produce “another” work would be too trivial to merit copyright protection as an “original” work.
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Canadian Copyright Law and Digital Restoration
Canadian courts have not considered specifically whether digital restoration of a film gives rise to copyright in the digitally restored version. However, we can draw certain conclusions about the probable outcome based on the exercise of skill and judgement required to digitally restore a film.
The digitization of film can be a process that is solely automated, and software based. There is widely available software that can perform the process of converting tape to digital file that takes only a trivial human effort. The process of film restoration, on the other hand, is not so rote. Often, restoring film refers to the actual repair of damaged film in order to restore what was originally captured. Restoration may also involve digital colour correction or audio manipulation. Restoration is not a purely mechanical process, but one that requires a combination of “evaluation of different options”, “intellectual effort” and “practiced ability”.
The Criterion Collection is one organization that frequently re-releases digitally restored versions of older films. Lee Kline, Criterion’s technical director, in speaking about the process involved in Criterion’s digital restoration of Alfred Hitchcock’s film, Foreign Correspondent, offered the following insights:
“[T]he first step in the process is tracking down the negative, or a print, that is in decent condition. In this case, that meant going to the Library of Congress, which had the original negative of the film. Criterion scanned it at 2K resolution, frame by frame, into digital files … Color is graded; dirt and scratches are retouched; audio is remastered. The team uses a combination of automated software that detects and removes flaws in the image, and manual re-touching of every frame. The entire process can from [sic] a few weeks to a few months for a single film, depending on the original condition it was in. [Emphasis added]
Kline adds that restoration of a film involves determining what the restored film should look like. To do this the works of both the director and cinematographer from the relevant time period are considered, as well as whether the film was shot on location or in studio.
Kline’s comments show that the process of digital restoration is a combination of automated software and human effort. If a film’s digital restoration follows a similar process, the resulting digital restoration may well be protected by copyright.
Canadian Copyright Law – Conclusion
Like most novel legal questions, we will not have certainty until it is addressed by our courts or legislature. However, some answers are more likely than others.
If you are looking to copyright a public domain film that you have digitally restored, you will need to ensure that the exercise of skill and judgment is evident in your process. Simply running automated software will not suffice. Adding in your own elements or touches to the digitally restored version makes a stronger argument for passing the originality test. On the other hand, if you would like to use another individual’s digital restoration of a public domain film, you need to be equally aware that the digitally restored version may be subject to a new copyright. Contacting the individual that digitally restored the film and understanding their process is a good first step.
For further information about copyright law, we encourage you to reach out to us for a consultation or visit our blog on Moral Rights in Canada.
© 2022 Edwards Creative Law, LLP
Updated to April 11, 2022
Edwards Creative Law is Canada’s Entertainment Law Boutique™, providing legal services to Canadians, and international clients who partner with Canadians, in the Music, Film & Television, Animation, Interactive Digital Media, Game, Publishing and Software industries.
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* This blog is for general informational purposes only and is not to be construed as legal advice. Please contact Edwards Creative Law or another lawyer, if you wish to apply these concepts to your specific circumstances.
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