What Is A Copyright?

Copyright subsists in Canada immediately upon creation, and without registration, in every original literary, dramatic, musical and artistic work, including computer programs, databases, multimedia works, books, photographs, advertisements, logos, and sound recordings.

A copyright owner has the exclusive right to control the work's (a) reproduction, in whole or substantial part, in any material form (including electronic form), (b) public performance, (c) public telecommunication, (d) publication, (e) translation, and (f) adaptation. The owner may also prohibit the distribution of unlawful copies.

The Act also provides an author with moral rights, which enable the author to demand credit as creator of the work and to prohibit changes to the work, or its use with any product or service, that would detrimentally affect the author's reputation.

How Long Does It Last?

In North America, as a general rule, copyright expires 50 years after the year in which the last author dies. There are some exceptions, most notably copyright in photographs and sound recordings expires 50 years after the year in which those works were created. Moral rights exist for the same period of time as the copyright.

Who Owns The Copyright?

The author is generally the first owner of the copyright, but exceptions do exist. For example, copyright in works created by employees in the course of their employment are owned by the employer.

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Assignments And Licensing

Copyright can be assigned or licensed, in whole or in part, and may be divided by geographic territory. Licenses may be oral, but assignments must be in writing to be valid. Assignments and license agreements should be registered in the Copyright Office. Moral rights cannot be assigned, but may be waived by the author.

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Why Register A Copyright?

Although not mandatory, registering a copyright in Canada does provide advantages. The certificate is deemed presumptive evidence that the registered owner owns the copyright and that the work is protected under the Copyright Act. Furthermore, a registration gives public notice of an owner's rights and may prevent an innocent infringement defence by unauthorized users of the work. For these reasons, registration certificates are beneficial in litigation proceedings and in warranting ownership of the copyright to prospective licensees of a work.

Regardless of whether copyright is registered, a notice containing the following elements should be placed on all published copies of a work to give public notice of the rights:

"Copyright (or ©) [year of first publication] [owner's name]. All Rights Reserved".

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Infringement And Remedies

Infringement occurs whenever a person exercises any of the copyright owner's exclusive rights without consent. Distributors, who did not copy the work, but who knowingly sold or imported infringing copies, can also be liable.

Infringement actions are generally brought in the Federal Court of Canada, although there is concurrent jurisdiction with provincial courts in appropriate circumstances. Remedies include damages, profits, delivery up of infringing copies and injunctions.

Defences to infringement include challenging the plaintiff's ownership, alleging that only an insubstantial amount of the work was taken, or pleading that the use constituted a "fair dealing" under the Copyright Act. The "fair dealing" exemption permits reasonable copying of a work for limited non-commercial purposes, such as private study and criticism.

It is also a criminal offence, in some circumstances, to knowingly infringe a copyright, punishable by prison terms ranging up to five years and/or fines of up to $1,000,000.

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International Protection For Copyright

Canada is a member of the Berne Convention on Copyright, the Universal Copyright Convention and the recent World Trade Organization (WTO) Agreement. Generally speaking, these treaties protect copyright internationally in works created by Canadians or nationals of other member countries, and/or those first published in Canada or any other member country.

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Recent Changes (Bill C-32)

Recently, important changes to the Copyright Act were introduced. Among these are:

• A royalty right for performers and producers of sound recordings which are publicly performed or broadcast
  
• A blank tape levy, collected on blank audio cassettes, sold in Canada
  
• A right for book distributors to prevent the parallel importation of works in which they have exclusive distribution rights
  
• Improved remedies for infringement, including statutory damages and "wide injunctions," which allow the court to enjoin a defendant from infringing any of a plaintiff's works, and not just those works cited in the originating action.

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Copyright vs. Industrial Design Protection

Where an artistic design is applied to a useful article which is produced in quantities of 50 or more, the copyright becomes unenforceable. The only enforceable protection available in this situation is an industrial design registration. A "useful article" is defined by the Copyright Act as one which has a function other than merely serving as a carrier for the artistic or literary material. For example, a decorative spoon, which functions as a piece of cutlery, would be a "useful article" and the design on such a spoon would not be protectable by copyright.

There are exceptions to this rule, however. For example, copyright remains enforceable if the design merely constitutes a graphic or photographic representation applied to the face of an article, depicts a fictional character or is a trade mark. These exceptions preserve copyright in "spin-off" merchandise from films and television shows.

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What Is An Industrial Design?

Industrial designs consist of features of shape, configuration or ornament that give manufactured articles aesthetic appeal and thus contribute to their commercial value. Examples of designs can be seen in clothing, automobile bodies, furniture and appliances.

While the subject matter of industrial designs is relatively straightforward, the legal issues that come into play in protecting new designs can be complex. Industrial designs are fundamentally expressions of style or form but also incorporate functional considerations. Protecting industrial designs, therefore, generally involves both copyright and patent issues.

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How Do I Protect An Industrial Design?

To protect a design in Canada under the Industrial Design Act, the design must be applied for within one year of first publication or offer for sale. Many foreign countries however require that an application be filed before any public disclosure has occurred. A design must be new to be registrable and must be sufficiently different from previously registered designs. The maximum term of protection in Canada is ten years.

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Marking Registered Designs

It is no longer mandatory to mark articles as a "registered design". However, proper marking of an article will prevent infringers from avoiding damages using an "innocent infringer defence". Marking should be as follows:

"(name of owner of design)".

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