In Canada, if person_a creates a copyrightable work, and then later person_b creates (without copying person_a's work) the same work, do both person_a and person_b have copyright, or does only person_a have copyright? Answers on this American post suggest both authors would have copyright, but in Canada the Copyright Act clearly says:

the sole right to produce or reproduce

Reproducing something requires you to copy it, but producing doesn't. The way I read this statement is that copyright is only granted to person_a, because person_b is violating the sole right to "produce" portion of this statement.

(I'm aware that the likelihood of this happening is slim when dealing with works substantial enough in size to actually qualify for a defensible copyright.)

  • 2
    Relevant background is idea–expression divide and the merger doctrine], but that Wikipedia article doesn't cite Canadian sources. But my hunch is that these conclusions are not US-specific. That copyright protects creative expression is universal. Your interpretation of “produce” might not align with the Act's meaning.
    – amon
    Jun 21, 2020 at 6:13

2 Answers 2


Like the situation in the US, Canadian copyright law distinguish ideas, which are not protected, from expression, which is protected. See Deeks v. Wells, OR 818. Person B is not allowed to copy (including copy and modify, copy modify and reproduce) a work produced by person A, so in the lawsuit, A must establish that B did copy. One form of evidence would be a video of B caught red-handed actually copying, but that is not the only way (indeed, it hardly if ever happens). Exact identity could easily establish copying and would be applicable to illegal downloading and other forms of IP piracy. In a case like Deeks, the question is whether two works are similar enough that it constitutes proof of copying.

In literary texts, the probability of coincidental exact identity in two paragraph of 300 words is effectively zero. Changing two or three words doesn't change that, but changing enough words does (e.g. the simultaneous existence of about 10% of words in any two texts of English is virtually guaranteed). The law doesn't have a fixed formula for distinguishing between coincidence and copy, and in Deeks there is much discussion of the expert testimony surrounding the question of copying. An example of a factor relevant to the coincidence / copy question is that certain writing styles are more templatic (see for example legal pleadings) and therefore a higher degree of similarity will arise because the authors have adopted the same abstract style.

Assuming you mean "exactly the same text", and that the text is at least a paragraph of two sentences, it is unreasonable to hold that the two texts are coincidentally the same. However, tweet-identity is fairly likely, not only because of the shortness of a tweet, but also because authors draw on recurring literary memes. If it is possible that B copied from A (the work could have been available to B) and expert analysis of the texts does not make a coincidence analysis reasonable, A would prevail in an infringement case – even if in fact B had written his work independently. B has no way to prove that theirs was an independent creation.

  • is 10% really where the distinction lies? can you omit 10%? reprint a copyrighted book by breaking it into 2 volumes (effectively omitting 50% in each volume)?
    – grovkin
    Jun 21, 2020 at 21:08
  • This isn't a distinction, it's a "bottom line". Certain words are so common that they have to be taken out of consideration for arging substantial similarity, for example "the, of, to, be, in, that, a(n), I, it, with, as, but...". Any two texts have a guaranteed small degree of "similarity".
    – user6726
    Jun 21, 2020 at 21:41
  • The line is where one side convinces the judge that something was copied, or the other side convinces the judge that it was not copied. Now anyone is welcome to read this comment, taking the purported facts, and to write a comment that expresses the exact same opinion, but in their own words, without my comment visible on the screen while they are writing.
    – gnasher729
    Jul 17, 2021 at 11:51
  • It is not a given that "B has no way to prove that theirs was an independent creation". I have been doing a bit of writing recently, spread across google docs and gitlab which store a timestamped history. I would have thought either would provide good evidence that my work was my creation in much the same way as they would for software.
    – Dave
    Jul 18, 2021 at 17:59
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    "In literary texts, the probability of coincidental exact identity in two paragraph of 300 words is effectively zero." While that naively seems to be the case, when you consider that only a minority of possible combinations of word are in common usage and that genre conventions and more general literary conventions favor certain topics and constructions, this is far less anomalous than it seems. To actually get to near zero it would probably actually take two thousand or more words.
    – ohwilleke
    Jan 15, 2022 at 0:36

This wouldn't be rare at all, but very common. If a dozen reporters report about the same accident, murder, court case et cetera, the facts, being facts, are not copyrighted, but each ones article about what happened has individual copyright protection. If you copy one article without license, that one reporter (or their employer) can sue you for copyright infringement, the others can't. Nor can any one of them sue the others for copyright infringement.

In practice, articles get copied without license. I remember my newspaper having three more or less made up articles in their April 1st edition. Two of them were reprinted on April 2nd by another newspaper. They didn't get sued for copyright infringement, but on April 3rd the first newspaper printed a bigger article how their competitor fell for their April fools article :-)

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