Copyright Modernization Act adds a new right that makes up the bundle of rights that is copyright. The new right is added as s. 3(1)(j) and it reads as follows: “‘copyright’ … includes the sole right, in the case of a work that is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the copyright owner.”

This provision goes against everything that copyright laws are about. It is Copyright 101 that ownership of copyright and ownership in the tangible object in which copyright may be expressed are two separate rights, which may or may not belong to the same person.

Granted, some European states provide the right to painters to receive remuneration for subsequent sales of their original paintings (droit de suite), but this right is protected as an add-on right, not as the substance of what copyright is defined as.

It has always been clear that granting a license to use copyright embodied in an object did not also mean the sale of the object, just as the sale of the object did not also mean the grant of a license to use copyright embodied in it.

The new provision muddies the waters and merges copyright in the work with ownership of the object.

The wording of the new provision is also unacceptably broad. It refers to works that are “in the form of a tangible object”. Most works are embodied in some form of a tangible object. Even if it’s merely a computer file. Because that file is stored on a tangible object, somewhere. However, the law refers to works that are in the form of a tangible object. Works protected by copyright have a separate life from the form in which they might exist. With respect to music, there is only one single copyright to a song – be it recorded on a CD, a tape, a computer file, or note paper.

Even more intriguing is the question why that provision was added to the Copyright Act. We don’t need the Copyright Act to tell us that whoever creates a tangible object will become its owner and will have the right to sell or otherwise transfer ownership in it. If I buy a canvas and draw something on it (or even if I don’t), then – even without the Copyright Act – I know that I can sell the canvas as a tangible object. This is what ownership is all about it. If you own it, then you can sell it. It does not require a separate provision in the Copyright Act.

On the other hand, it would make even less sense to add a provision to the Copyright Act that would somehow grant ownership in a tangible object to those who happened to embody their creative work in a tangible object previously owned by somebody else. If this was the case, then graffiti artists will be able to claim ownership of the houses on whose walls they are painting; strangers whom we ask to take a picture of us will be able to claim ownership of our cameras, or at least their flash drives; users of internet cafes will be able to claim ownership of computers they use to send literary works in the form of emails; etc.

Clearly, both situations are absurd. But really, either you own the object before it happens to embody a work of copyright or you don’t. The section 3(1)(j) is so poorly drafted that it can mean virtually anything to anybody, which is never a good thing for a provision that purports to form the definition of what copyright is.

BOTTOM LINE: Bad. Very bad. Whatever good intentions may have been behind this provision will probably be lost due to the poor wording. The added drawback is that this provision dilutes the clear line between ownership of copyright and ownership of physical objects in which copyright may be embodied.