In a new series, we review the basics of Canadian trade-mark, copyright and patent law.

• Canadian Copyright: The Canadian Copyright Act gives authors the right to control their creative works, such as books and pictures. Under copyright law, the concept of “author” is understood broadly and includes software programmers, photographers, musicians, mobile-app developers, animators, graphic designers, artists, dancers, writers, cinematographers, painters and poets. Original creative works are protected automatically under the Copyright Act, which gives authors the right to make copies for the term of copyright. Copyright generally lasts for 50 years after the death of the author.  It is an infringement of copyright to makes unauthorized copies of a work that is protected by copyright. One important point to remember is that copyright law does not protect ideas or concepts, but protects the expression of the idea – as expressed in written or fixed form, such as a book, a sound recording, a photo or a painting.
• Best Practices:
• Notation - A standard copyright notation is “© ABC Company Inc. 2011, all rights reserved.” A notation of this type is not required by the Copyright Act but it is recommended on copyright protected works.
• Register Copyright – Registration is relatively easy and inexpensive, and provides the owner with proof of ownership of copyright . In Canada, you are not required to submit a copy of the work with your application for registration.
• Public Domain – Just because something is publicly available on the internet does not mean that it’s in the “public domain” for copyright purposes. The concept of “public domain” refers to the expiry of copyright protection. So, for example, the original works of Shakespeare or an 18th century painting can be said to be in the public domain since the term of copyright has lapsed.
• Copyright in Software: Software, even open source software, is subject to copyright. The owner of the software could be the author of the code, or a company employing the author. To protect the intellectual property rights in software of any kind – whether it’s sold on a disc at the retail level, or is downloadable, whether an operating system or a mobile app - the owner should use proper copyright notations and implement a well-drafted license agreement. An end-user software license is a contract between the owner and the user that deals with topics such as ownership, use restrictions, warranties, liability, tech support, and related terms.
• Copyright Outside Canada: Under the Copyright Act and international copyright conventions, Canadians enjoy copyright protection in countries who are parties to treaties such as the Berne Convention, Universal Copyright Convention and the Rome Convention. Even with this legal framework in place, enforcement of copyright is challenging in the context of the internet, since infringement can occur easily and anonymously in multiple jurisdictions on multiple servers. Specialized assistance is usually required in combatting copyright infringement outside Canada.  

For more information and assistance with your copyright and software licensing needs, visit Field’s Intellectual Property & Technology Group. 

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