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Copyright protects literary, dramatic, musical or artistic works, and includes computer code as a literary work. The broad categories include things like books, paintings, drawings, photographs, architecture, movies, and music. Copyright prohibits others from copying your protected work without your permission. However, copyright does not protect the idea behind your work; nor does it stop another’s independent creation. For instance, if you took a photograph of a sunset, and someone standing right next to you took an identical photograph, neither photograph would infringe the other’s copyright.
Unlike other types of intellectual property, copyright arises automatically the moment a work is created. Registration is not a requirement but helps prove your case if you ever need to litigate. You can optionally identify that your work is protected by copyright using the © symbol (e.g. “© 2021 ventureLAB”) which reminds others of your copyright claim and your wish that your work is not to be copied without your permission.
Another important distinction is that unlike patents and trademarks, which must be registered in each individual country, copyright is automatically protected in all 179 Berne Convention member countries, which includes Canada, the United States, China, the European Union, and the United Kingdom.
Currently in Canada, copyright lasts the lifetime of the author plus 50 years. This is not the same in all countries. In the US, the UK, and Europe, for example, copyright lasts the lifetime of the author plus 70 years. However, Canada is likely to extend the copyright term to 70 years by the end of 2022 to comply with the recent free trade agreement with the US.
What qualifies for copyright protection?
For a work to be protected by copyright it must be original. However, “original” is not defined in the Copyright Act, so it’s been up to the courts to decide what works qualify as original. They require the work to demonstrate “skill and judgment” by the author beyond the trivial or mechanical. Creativity or high quality is not required. This bar is therefore relatively low. Doodles on a napkin could even qualify.
Furthermore, an original work does not have to be a completely new concept. Think of how many “reimaginings” of classic fairy tales have been made into movies. The concept is not new, but each piece of work qualifies for copyright protection. These are important distinctions, because it means that many authors can create the same (or similar) piece of work and still have it qualify for copyright protection. Two programmers can simultaneously develop the same code, or similar codes to solve the same problem and each would be protected by copyright.
The other requirements for copyright protection are that the work must be an expression and must be in a fixed form. An expression simply means that copyright does not protect ideas, but rather protects the expression of the idea. If you paint a picture of a bowl of fruit you have copyright over the particular way you expressed the bowl of fruit. However, you do not have a monopoly on paintings of that bowl of fruit. The fixation requirement means the work has a material existence. The work may be written down (paper or computer), recorded, produced on film, or made permanent in some form.
Own your Copyright
The copyright owner has the right to prevent others from copying their work or to license them to do so. As a business owner, the first thing to consider is who owns the copyright. Typically, the first owner of the copyright is the author of the work. In the case of employment, the employer is presumed to own the copyright made by employees during the course of employment. However, if you hire a contractor, you are not presumed to own the copyright to any works created by them. Rather, if you want to own the copyright to works created by a contractor, this must be stipulated in your contract with them.
It is very important that any copyright necessary for your business is owned by your business. If your business does not own the copyright to the work, such as a computer program, you do not have the right to copy and distribute that work without its owner’s consent.
The other thing to consider are “moral” rights — a somewhat misleading term since the rights are legally enforceable. Moral rights reside with the author of a work and cannot be assigned to anyone else. They can however be waived, and thus it is good practice to have employees and contractors waive their moral rights in any works they create for you. Moral rights protect the integrity of the author’s work and the author’s right to have their name associated with the work or to remain anonymous. For instance, if someone created a work for you but doesn’t want to be associated with your company or a specific cause, they have the right to remain anonymous unless they waived their moral rights. If you were to name them as an author against their wishes or fail to name them as an author if they want to be identified, they could enforce their moral rights against you.
The author also has the right to preserve the work, which includes protecting the work from alterations without their permission. A real example of this occurred at the Toronto Eaton Centre. For the holiday season the Eaton Centre added red ribbons to a permanent artistic exhibit known as “Flight Stop”, the iconic Canadian Geese installation suspended from the ceiling. The author of the installation, Michael Snow, did not approve of the ribbons and claimed that the modification to the installation damaged his reputation. The author was successful in bringing a moral rights infringement claim and the Eaton Centre was required to remove the ribbons.[1]
Protecting your Copyrights
As the owner of the copyrighted work you have the exclusive right to reproduce and distribute the work. If you suspect someone else has copied your work without your permission you can claim copyright infringement. To succeed you must show that copyright does in fact exist in the work and that the work was infringed. Damages can be quite large.
A direct copy of your work is the most straightforward type of copyright infringement. Even a copy of a portion of your work could qualify as copyright infringement. However, word for word copying is not the only way to infringe a work; derivative works such as translations or adaptations of the work can also qualify. For instance, if you created a computer program, a subsequent iteration of the program that includes previous code could still be protected by your copyright. Further, if someone merely translated your program into another language without making any changes, that too could be considered infringement.
Copying of a portion of the work can be where things get sticky. It is important to note that copyright includes protection against others copying a “substantial part” of your work. What qualifies as a substantial part is not set in stone. Rather, considerations on the amount of the work copied and whether or not it was a critical and original part of the work are used to determine if the copying is substantial.
User Rights
Despite your work being protected, others may have rights to use parts of it without your consent. For example, in Canada we have the fair dealing defence, and the United States has a fair use defence. There are differences between them, such as US fair use being somewhat broader than the Canadian fair dealing. Thus in Canada fair dealing allows copying only for the purposes of research, private study, education, parody, satire, criticism, review and news reporting. In contrast, fair use in the US defence has no closed list of allowable purposes.
[1] Snow v Eaton Centre Ltd. (1982), 70 CPR (2d) 105.
ventureLAB can help you navigate your IP strategy. Located at the heart of Ontario’s innovation corridor in York Region, ventureLAB is a leading global founder community for hardware technology and enterprise software companies in Canada. Our initiatives focused on raising capital, talent retention, commercializing technology and IP, and customer acquisition have enabled thousands of companies to create over 4,000 jobs and raise more than $200 million in investment capital. Join us.
Maddie Lynch is an IP Intern from Osgoode Hall Law School where her studies focus on intellectual property. At Osgoode Maddie is part of the IP Osgoode Innovation Clinic helping inventors with the early stages of patents and trademarks. Prior to law school Maddie obtained a PhD in Neuroscience, working in an Alzheimer’s disease therapeutics lab. Most recently, she summered at Bereskin & Parr LLP, an IP law firm and looks forward to continuing her education in intellectual property law.
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