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- Herausgeber: John Wiley & Sons
- Kategorie: Fachliteratur
- Sprache: Englisch
An updated guide to Canadian copyright law for an age of reckless infringement This fourth edition of Canadian Copyright Law brings you the latest updates according to new Canadian legislation and international agreements. Copyright infringement has always been an invisible crime. Now with near-constant access to the Internet and the mainstream explosion of digital formats, copyright is one of the most important issues for creative professionals, consumers of that media, and those who work in related industries. The line between what is protected and what is "free" is blurring further, and the copyright issues are more complex than ever. * Provides a complete update on copyright issues relating to digital media. * Takes the convoluted legal jargon of the Canadian Copyright Act and sets it out in everyday language. * Provides concrete examples to offer further clarification of complicated matters. Whether you are a creator or user of copyright material, Canadian Copyright Law will keep you current on copyright law in Canada and its applications to your situation--to protect your creations, content, and products in these rapidly changing markets.
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Veröffentlichungsjahr: 2013
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Contents
A Note on the Text
Preface
Acknowledgements
Introduction
Chapter 1: Understanding Intellectual Property
What Is Copyright?
Overview of Intellectual Property
Patent Law
Trade-Mark Law
Industrial Design
Copyright Law
Integrated Circuit Topography Protection
Confidential Information and Trade Secrets
Overlap of Intellectual Property Protection
Chapter 2: Copyright Law in Canada
History of Canadian Copyright Law
Government Responsibility for Copyright in Canada
The Concept of Copyright Law
Chapter 3: Is Your Creation Eligible for Copyright Protection?
Criteria for Copyright Protection
Works
Other Subject-Matter: Sound Recordings, Performances, and Broadcasts
Chapter 4: Are Formalities Required to Obtain Copyright Protection?
Automatic Protection
Marking Your Creations
Registration with the Canadian Government
Legal Deposit at Library and Archives Canada
International Standard Numbers
How to Register Copyright with the Canadian Government, Canadian Intellectual Property Office (CIPO)
The Role of the Copyright Office and the Registrar Of Copyrights
Registration or Deposit Other Than with the Canadian Government
Mailing a Copy to Yourself
Registering with the U.S. Copyright Office
Registering with a Nongovernmental Organization
Chapter 5: Canada and International Copyright Law
Relevancy of International Copyright Law to Canadians
The Concept of International Copyright Protection
International Copyright Conventions
The Berne Convention
The Universal Copyright Convention
The Rome Convention
WIPO Internet Treaties
International Trade Agreements and Copyright Law
Member Countries of the Berne Convention, UCC, and WTO
Using Content from Another Country
Canadian Content Outside of Canada
Where Do Internet Uses Take Place?
Chapter 6: What Is Protected by Copyright?
The Meaning of Works and Other Subject-Matter
Works Protected by Copyright
Literary Works
Dramatic Works
Audiovisual Materials
Choreographic Works
Musical Works
Artistic Works
Industrial Designs
Folklore
Government Materials
Further Protected Works
Social Media
Other Subject-Matter
Chapter 7: Who Owns Copyright?
Owning Copyright
The General Rule
Specific Works
Specific Situations
Other Subject-Matter
Moral Rights
Ownership of Content in Social Media
Chapter 8: The Duration of Copyright
A Limited Duration
General Rule for Works
Author versus Owner of a Work
Calculation of the Duration
Moral Rights
Specific Works
Specific Situations for Works
Other Subject-Matter
Public Domain Works
Chapter 9: Rights Protected by Copyright
The Nature of Rights Granted by the Copyright Act
Economic Rights in Literary, Dramatic, Musical, and Artistic Works
The Right to Prohibit Importation
Economic Rights in Specific Works
Moral Rights
Other Subject-Matter
Rights Not Currently in the Copyright Act
Chapter 10: Limitations on Rights
What Are Limitations on Rights?
Fair Dealing
Specific Exceptions
Exceptions in Specific Situations
Copyright Collectives
Libraries, Archives, and Museums
Use of Copyright Warnings
Archives Only
Broadcasters
Network Services
Persons with Perceptual Disabilities
Other Exceptions
Exceptions from Moral Rights
Chapter 11: How Can Rights Be Exploited?
How the Copyright Act Works
Who Can Provide Permission to Use a Work or Other Subject-Matter?
How to Exploit a Work
Registering a Grant in Interest
Reversionary Interest
Testamentary Dispositions
Copyright in Future Works
The Value of Rights and Structure of Payment
Assignment Must Be in Writing
Moral Rights
Note
Other Subject-Matter
The Collective Administration of Copyright
Creative Common Licences
Chapter 12: How Is Copyright Infringed?
What Is an Infringement of Copyright?
Terms Used to Describe Infringements of Copyright
Copyright
Moral Rights
Rights Management Information
Technological Protection Measures
Spotting Illegal Works
Chapter 13: What Are the Remedies for the Infringement of Copyright?
Remedies in General
Border Remedies
Civil Remedies
Description of Civil Remedies
Criminal Remedies
Activities That Constitute a Criminal Offence
Infringing Plates and Performances
Recording a Film in a Theatre
Chapter 14: Legally Using Content
The “Use” of Copyright Materials
When Is Permission Required?
Obtaining Permission
Copyright Collectives
Obtaining Permission for Specific Works
Public Performance Right
Reproduction Right
Using Government of Canada Works
Unlocatable Copyright Owners
Moral Rights
Chapter 15: An Overview of American Copyright Law
The Relevance of American Copyright Law to Canadians
Works Protected in the United States
Rights Granted in the United States
Moral Rights
Limitations on Exclusive Rights
Length of Protection
Ownership of Works
Registration and Copyright Notice Requirements
U.S. Digital Copyright Legislation
How to Obtain Further Information on U.S. Copyright Law
Appendix I: Copyright Act
Appendix II: Copyright Modernization Act
Appendix III: Application for Registration of a Copyright in a Work
Appendix IV: Application for Registration of a Copyright in a Performer’s Performance, Sound Recording, or Communication Signal
Appendix V: Educational Program, Work, and Other Subject-Matter Record-Keeping Regulations
Appendix VI: Exceptions for Educational Institutions, Libraries, Archives, and Museums Regulations
Appendix VII: Reproduction of Federal Law Order
Appendix VIII: Application for Copyright Clearance of Government of Canada Works
About the Author
Index
Cover image: Inspired by RetroCircle; © iStockphoto.com/Webtoaster777
Cover design: Wiley
Copyright © 2014 by Lesley Ellen Harris. All rights reserved.
Published by John Wiley & Sons, Inc., Hoboken, New Jersey.
Published simultaneously in Canada.
No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning, or otherwise, except as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without either the prior written permission of the Publisher, or authorization through payment of the appropriate per-copy fee to the Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, fax (978) 646-8600, or on the web at www.copyright.com. Requests to the Publisher for permission should be addressed to the Permissions Department, John Wiley & Sons, Inc., 111 River Street, Hoboken, NJ 07030, (201) 748-6011, fax (201) 748-6008, or online at www.wiley.com/go/permissions.
Limit of Liability/Disclaimer of Warranty: While the publisher and author have used their best efforts in preparing this book, they make no representations or warranties with the respect to the accuracy or completeness of the contents of this book and specifically disclaim any implied warranties of merchantability or fitness for a particular purpose. No warranty may be created or extended by sales representatives or written sales materials. The advice and strategies contained herein may not be suitable for your situation. You should consult with a professional where appropriate. Neither the publisher nor the author shall be liable for damages arising herefrom.
For general information about our other products and services, please contact our Customer Care Department within the United States at (800) 762-2974, outside the United States at (317) 572-3993 or fax (317) 572-4002.
Wiley publishes in a variety of print and electronic formats and by print-on-demand. Some material included with standard print versions of this book may not be included in e-books or in print-on-demand. If this book refers to media such as a CD or DVD that is not included in the version you purchased, you may download this material at http://booksupport.wiley.com. For more information about Wiley products, visit www.wiley.com.
ISBN 978-1-118-07851-8 (cloth); ISBN 978-1-118-08356-7 (ebk);
ISBN 978-1-118-08355-0 (ebk)
To my children, Bennett and Ari, who are the newer generation of copyright creators and consumers.
A Note on the Text
I wrote this book for the lay reader. It is in no way a treatise on Canadian copyright law or a survey of case law, but a simplified description of a complex area of the law. The examples I have chosen in the text are merely examples. Each particular case must be examined on its own facts. My intention is to provide you with information that you can then apply to your own situations and facts at hand—not to offer legal advice. If you face a legal issue, seek professional advice.
The book can be read from cover to cover or used, as required, for reference purposes. You might wish to first read the entire book before using it as a reference, since the nature of copyright is such that understanding one area of copyright law is often necessary to understanding other areas of the law.
I have quoted cases or specifically referred to them only to illustrate a point that reference to a particular case makes clearer. The consolidated Canadian Copyright Act is at http://laws-lois.justice.gc.ca/eng/acts/C-42. You should take caution when reading the Copyright Act without being familiar with legal jargon and without access to the court cases that interpret the Act.
You might find certain sections of the book oversimplified—others overly complex. I have tried to find a balance between explaining the law simply, yet providing enough detail for you to understand its intricacies.
I have avoided technical terms or legal jargon as much as possible. Words such as work, creation, copyright-protected works, copyright materials or other subject-matter refer to something protected by copyright law. Creators create copyright-protected works, and the word creator is used interchangeably with the word author. Creator and user are two words often used when talking about items protected by copyright law. The creator is the person who creates the work. The user is the person who uses copyright materials; he or she is also called a consumer of copyright material.
Copyright is not an area of law that can be seen in black and white. Terms such as arguably, probably, likely, most likely, and it depends on the circumstances are necessary to address the many grey areas of copyright law. When you come across these words, take extra caution in applying the law to your particular circumstance.
The book is comprehensive in that it covers, or at least mentions, most provisions in the Canadian Copyright Act. However, I have omitted a small number of provisions because they apply in a miniscule number of cases and/or are too complex or specific for a general book on copyright law.
I have predominantly dealt only with copyright law, while ever-so-briefly touching upon other areas of intellectual property law. I may refer to, but I do not specifically deal with related legal issues such as personality rights, privacy, contract, libel and slander, passing off, tax, and bankruptcy. All of these areas may be of some interest to those who create, own, or use copyright materials, and most of these topics could be books themselves.
The law I describe in this text is the law as it stands at the time of writing: June 1, 2013. Legislative changes and court cases interpreting the law may change some of the law as described. Technological developments may also impact upon some of the information set out in this book. Current copyright information and information on how to manage copyright issues is at www.copyrightlaws.com.
Preface
It is hard to believe that 22 years have passed since the first edition of this book was published. At the time of approaching my publisher in 1990, I had written a few articles on copyright and given some talks on copyright to various groups, and was continually being asked by the public what more they could read on Canadian copyright law. Back in 1990, there was not much content on Canadian copyright law, especially for nonlawyers; hence I proposed a book on the topic. The first edition of this book received a warm welcome upon its publication as has every subsequent edition. I am delighted to be providing you with the fourth edition of this book.
When this book was initially published in 1991, I had not heard of the Internet. In 1995, when the second edition of this book was being written, I had my very first e-mail account on the Ottawa’s free-net, officially known as the National Capital Freenet. I had never surfed the web though I was familiar with the Internet as it then existed, consisting of Archie and Veronica and Gopher. And so by 2001 and the third edition of this book, I had claimed real estate on the Internet @ www.copyrightlaws.com, and I had a virtual office. Almost all my correspondence with clients and students went online. I no longer carried business cards but merely handed out my URL and told people to click on my website photo to access me via e-mail. I cancelled my telephone line and began using only a cellular phone.
At the time of this book (the fourth edition!), now available in print and, for the first time, also as an e-book, social media have exploded. We have yet again new ways of communicating with friends, family, and colleagues, and sharing copyright-protected content, with LinkedIn since 2002, Facebook since 2004, and Twitter since 2006. Every day we read about social media such as Pinterest (launched 2011) and how it may infringe copyright; new copyright infringement cases settled out of court or decided by a court; proposed and enacted copyright statute amendments in countries around the world; as well as proposed and new trade agreements and international treaties that deal with copyright issues.
So how has Canadian copyright law fared during the explosion of the Digital Age? You will soon be able to answer this question for yourself. In preparing this book, I have examined new legislation, recent court cases, and the content we use and the way we use it. I have added many examples throughout the book that relate to social and digital media, and have updated contact information including website, blog, and e-mail addresses.
Over the years, I have heard from many of my readers with comments on the book and their questions about copyright law. One of the most rewarding parts for me of writing a book is to engage with my readers. I encourage you to ask your questions at Copyright Questions & Answers (www.copyrightlaws.com/copyright-qs-as/copyright-questions-answers/), to visit my blog (www.copyrightlaws.com), and to follow my copyright tips on Twitter @Copyrightlaws.
Acknowledgements
I would like to thank the numerous people who generously gave their time and shared their expertise and knowledge in reviewing sections and chapters in the book and responding to my e-mails; your suggestions and knowledge are much appreciated. They include Bruce Couchman, Elizabeth Kelly, Aidan O’Neill, Craig Parks, and Susan Progoff, as well as people from copyright collectives, organizations, associations, and government agencies listed in this book. And thanks to my husband for his various input.
A Cancun vacation, a kid’s broken leg, and serendipity led me to Wiley publishers; thank you to Ellen Roseman for pointing me in that direction. I would like to thank John Wiley & Sons for publishing this book and working with me, specifically Lauren Freestone, Karen Milner, Brian Neill, and Lucas Wilk.
And thank you to the readers of earlier editions and those who frequent my blog on copyright law; you keep me thinking about copyright law and encourage me to be creative in discovering and building new ways to share what copyright law means.
Introduction
If Glenn Gould were alive today, he would be celebrating his 80th birthday, posting to his blog, releasing another podcast and figuring out how to license downloads of his recordings.
—Kate Taylor, “The meaning of Glenn Gould,” The Globe and Mail, September 22, 2012
Copyright affects everyone. Anyone who has ever written a letter or e-mail message, made a sketch, or taken a photograph (even with a smartphone) is a creator of copyright material. And anyone who has ever photocopied an article, digitized an image, or downloaded a document from the Internet is a user or consumer of copyright material (assuming of course that these materials are protected by copyright).
Copyright law, however, is very complicated, and my purpose in writing this book is to demystify it and set out its fundamental principles in everyday language. This book is written for those who create copyright materials, use copyright materials, acquire the rights to content, and share and disseminate content. Its audience is the private individual as well as those who work in institutions and organizations across a broad range of fields including culture, entertainment, education, information, and computer software, whether for-profit or nonprofit organizations, and whether the use of content is for commercial, noncommercial, or personal purposes. Many of us share the same experience in that the Internet and digital content and digital distribution have made copyright everyone’s business.
Intellectual property, and especially copyright, is a growth industry. It is also an often misunderstood area of the law. One of the basic problems in understanding copyright is that we cannot see it. Perhaps that is why people who would not dare steal a towel from a hotel room would, without a second thought, photocopy a book or reproduce a computer program or image found online.
Copyright law has been struggling with technology ever since the invention of the Gutenberg printing press. With each new technology—like photocopiers and VCRs and the Internet—it becomes easier for consumers to reproduce copyright-protected works (often more quickly, less expensively, and at higher or perfect quality). At the same time, creators and owners find it more difficult to control unauthorized reproduction. Technology and business models are constantly being reexamined and are evolving to deal with the use of digital content.
In writing this book, I have come to recognize that Canadian copyright law is even more complex than I had realized before! I have done my best to simplify the law and to set out generalizations and the most important information for practical purposes. I have included some, but not all, transitional provisions, and I wish I could have provided examples to go with all of the explanations; space, however, was limited. In some cases, I have mentioned the policy behind certain provisions and the thinking of legislators as a way to explain parts of the law that seem mysterious, but I have not been consistent in doing so. My main goal is to put my mind inside of yours and to explain things so that you may comprehend them and to provide you with sufficient information for you to be able to apply the law to your specific situations. I hope that I have made your task of applying copyright law to your specific situations a bit easier.
Chapter 1
Understanding Intellectual Property
A great literary work can be completely, completely unpredictable. Which can sometimes make them very hard to read, but it gives them a great originality.
—Yann Martel
What Is Copyright?
Literally, copyright means the “right to copy.” The Canadian Copyright Act grants copyright owners the sole and exclusive right to reproduce, perform, or publish a work. These rights give copyright holders control over the use of their creations, and an ability to benefit, monetarily and otherwise, from the exploitation of their works. In addition, moral rights (which are also in the Copyright Act) protect the reputation of creators. The rights are subject to specific limitations as set out in various provisions in the Copyright Act.
Copyright law is one area of a larger body of law called “intellectual property,” or IP. The word intellectual is used to distinguish it from “physical” property. Intellectual property law refers to and protects the intangible or intellectual nature of an object, whereas physical property law refers to and protects the tangible or physical aspect of an object.
As an illustration, there is both an intellectual and physical property component to a book or refrigerator. The physical component of the book or refrigerator is the object itself, the book that you can hold in your hand or the refrigerator whose door you can open and close. The intellectual component of the book is the words that appear on the page and the expression of any ideas contained in those words. The intellectual component of the refrigerator is the material that led to its creation, such as sketches containing its design or plans for its motor, computer software incorporated into the refrigerator, and even the name of the refrigerator.
The physical and intellectual components of any creations are separate. By owning the physical or intellectual property in a creation, you do not necessarily own the other sort of property in it. In other words, purchasing or owning a print book does not mean that you own the copyright in that book. You are limited in what you can do with that book, and you cannot make any uses of the book that only the copyright owner may make.
There are traditionally five areas of intellectual property in Canada:
Since 1993, an additional area of IP has been recognized in a Canadian statute for integrated circuit topography protection. Protection for databases that are not protected by copyright also exists in some countries. Database protection is further discussed in Chapter 6, “What Is Protected by Copyright?”
By examining the various types of IP, you will gain a better understanding of how copyright fits into this body of law. You will also realize, as we go through various examples under each area of IP, that each type of IP protects a different kind of creation or a different aspect of a creation, and that each type provides its own special set of rules of protection.
Note that the term intellectual property is sometimes interpreted in a narrow sense to apply to copyright and other subject-matter, and the term industrial property is used to refer to patents, trade-marks, industrial designs, confidential information, and trade secrets, as well as integrated circuit topography protection.
Overview of Intellectual Property
“Can I patent my book?” or “Can I copyright my idea for a new mousetrap?” These are examples of questions a copyright lawyer is frequently asked. Such questions demonstrate a general knowledge of IP, in that patents or copyright protect inventions or creations, but they also show a lack of comprehension of the distinction between the various areas of IP. This section of the book explains the different kinds of IP and examines whether something you have created, or someone else’s creation that you may want to use, is protected by one of the areas of IP, and if so, under which type of intellectual property. This section also briefly describes the nature of protection provided by each area of IP.
Patent Law
A patent is a document issued by the government that describes an invention. According to the Patent Act, the patent legally protects an inventor, or patent owner, and allows him or her to prevent others from making, using, and selling that invention within Canada for 20 years after an application for a patent is filed.
Examples of Things Protected by Patents
Articles such as a washing machine.
Compositions such as a chemical composition used in a lubricant for that washing machine.
Apparatus; for example, the machine used for making the washing machine.
Processes; for example, the method used to make the washing machine.
Any improvement on any of the above. Ninety percent of patents in Canada are for improvements to existing patented inventions.
1
A patent is granted only for the physical embodiment of an idea, or for a process that produces something saleable or tangible. New medicines, communications systems, energy sources, and electric can openers are all patentable. However, you cannot patent a scientific principle, an abstract theorem, an idea, a method of doing business, a computer program, a medical treatment, or any inventions having illicit or immoral purposes.
In order for an article, composition, apparatus, or process to be patentable, it must meet all of the following criteria:
It must be new (i.e., the same such invention must not already exist).
It must be useful (i.e., functional and operative).
It must be “unobvious” (to someone skilled in that area).
Preparing and prosecuting a patent application is a complex, tedious task and is usually done by a registered patent agent. It can take approximately three years from the date of application to obtain a patent.
If you obtain a patent, you may then sue anyone who makes the patented product or uses the patented process without your permission. However, there are certain situations where “compulsory licences” exist and you must let others use your patented invention, provided they make royalty payments to you.
The law does not require a patented object to be marked as “patented” or an awaited patent as “patent pending,” though doing so may remind others of your rights, or pending rights. It is illegal to mark an article as patented where a patent has not yet been granted.
If you plan on securing patent protection, you should be careful not to disclose your invention before filing an application with the Patent Office because it may preclude you from obtaining a valid patent. If you must disclose your invention, for example, to evaluate potential commercial interest, you should only do so on a confidential basis and require the party to whom you are disclosing it to sign a confidentiality agreement that states that he or she will not disclose your invention to anyone else. You will not be able to obtain a valid patent if you disclose your invention more than one year prior to filing a patent application in Canada. In many countries, such disclosure results in an absolute bar to obtaining a valid patent.
If you are granted a patent in Canada, that protection is good throughout Canada. To get patent protection in other countries, you must apply separately in each country, or apply through the treaty called the Patent Cooperation Treaty (PCT). This treaty provides a standardized international filing procedure for many of our principal trading partners including the United States, Japan, and most European countries. Just as a Canadian patent is not automatically valid in other countries, a foreign patent has no effect in Canada unless a separate Canadian patent has been obtained.
The patent system is not always being fully utilized in certain industries where rapid changes occur, due to the relatively long period of time it takes to obtain a patent (normally three years), and the high cost to obtain and maintain a patent. Some owners of patentable inventions have found adequate alternative protection in other areas of the law such as trade secrets or through contractual arrangements.
Trade-Mark Law
A trade-mark is a word, symbol, picture, logo, design or shaping of goods, or a combination of these elements, used to distinguish the goods or services of one person or organization from those of another in the marketplace. A trade-mark allows its owner exclusive use of that mark to be identified with certain goods or services.
Examples of trade-marks are the word “Coca-Cola,” the Coca-Cola logo, and the distinctive shape of the Coke bottle.
The following marks are not registrable under the Canadian Trade-marks Act (the examples below are not in the Act):
Names and surnames of living persons even if they are the applicants’ own names or surnames (for example,
Lesley Ellen Harris
), unless the name has become distinctive and has acquired a secondary meaning to the public.
Words that are descriptive of the goods or services associated with the trade-mark (for example,
caffeine
for coffee or
ink set
for pens).
Words that clearly describe the place of origin of wares or services (for example,
Vancouver
for shoes or
Nepal
for backpacks).
Words that describe the goods or services in any language (for example,
vin, vino
, or
wine
for wine).
Coats of arms of the Royal Family, badges and crests of the Royal Canadian Mounted Police (RCMP), and the Canadian Armed Forces, the Red Cross, and national symbols.
Any mark that is obviously immoral or offensive.
Deceptively misdescriptive marks.
Certification marks can also be trade-marks if the certification mark is used to distinguish goods or services that meet a defined standard. An example of a certification mark is the “cotton mark” on clothing used to indicate the presence of cotton.
Sound marks may also be registered as a trade-mark.2 An example of a sound mark is the roaring lion sound associated with Metro-Goldwyn-Mayer (MGM) Corporation movies.
A trade name, that is, a business name of a corporation, partnership, or individual is not necessarily a trade-mark, but may be registered under the Trade-marks Act if it is used as a trade-mark.
A trade-mark may be protected in two manners. It may be protected through use (common law protection); that is, by using the mark in connection with a service or product. This protection is perpetual so long as use of the mark is not abandoned. Also, common law protection is only in the geographic area in Canada in which a reputation for the mark has been acquired through use. Alternatively, the mark may be protected by registering it under the Trade-marks Act. Registration provides prima facie evidence or ownership of the mark and provides stronger protection than that provided by the mere usage of a mark. Registration entitles the registered owner to exclusive use of the mark throughout Canada even in geographic areas where use of the mark has not occurred. At the time of writing this book, registration normally takes 12 to 18 months if no major difficulties are encountered. Registered protection lasts for 15 years, renewable indefinitely for 15-year periods.
It is not mandatory to use the symbol ® for registered trade-marks, or for common law marks, to identify trade-marks. Likewise, it is not obligatory to complement a trade-mark with an asterisk followed by a footnote that describes the trade-mark as such and the owner of it. Identifying trade-marks does, however, inform others that the mark is a trade-mark, and can provide information of the origin of the mark. Trade-mark notices can also help to identify the source of the wares/services associated with the mark and inform a consumer as to who is responsible for their character and quality.
If you have a registered trade-mark, you have the exclusive right to use that mark throughout Canada in respect of such wares or services. If anyone else sells, distributes, or advertises wares or services in association with your mark or a similar confusing one, you may enforce your rights against that person.
Your Canadian trade-mark registration is good throughout Canada, and separate registration must be obtained, if necessary, in other countries. Similarly, foreign trade-marks are not protected in Canada unless they have been registered here, though some may be protectable in Canada through use in Canada, or by massive spillover advertising, acquired reputation, and goodwill in Canada.
Industrial Design
An industrial design is any original shape, pattern, or ornamentation applied to a useful article of manufacture. The functional or utilitarian features of that article are not protected by industrial design, but may be protected by a patent. It is the “visually appealing” part of the design, and not the article to which it is applied that is protected as an industrial design.
The shapes of a table, a telephone, or a decoration on a plate are examples of industrial designs.
Registration of a design is mandatory under the federal Industrial Design Act within 12 months of the publication of the design in Canada. Registration generally takes 9 or 10 months to secure. Protection lasts for 10 years, beginning on the date of registration of the design. However, five years before the expiry date of the registration of the design, you must pay a maintenance fee, or your protection will expire.
It is not mandatory to mark a product to indicate that it is registered as a design, but marking will give you certain benefits both regarding remedies in an infringement lawsuit and notice to the public that the design is registered and you are its owner. The marking should consist of a capital “D” inside a circle, or abbreviated name, of the design’s owner, on the article, its label, or packaging. Older designs may carry the prior marking procedures, a mark consisting of the name of the design owner, the letters “Rd.” and/or “Enr.” and the year of registration.
The owner of the design has the right to make, use, rent, or sell a product incorporating the design. The owner may sell or license some or all of those rights.
Protection in foreign countries must be separately obtained in each country.
The relationship between creations protected by copyright and those protected by industrial design is further discussed in Chapter 6, “What Is Protected by Copyright?”
Copyright Law
Copyright law protects a diverse list of creations including interoffice memorandums, books, computer software, weblogs, photographs, sculptures, and films. Print/analogue and digital works are protected by copyright law.
According to the Canadian Copyright Act, copyright protection is automatic in Canada, upon the creation of a work once the work is in some sort of tangible form such as on a hard drive, written on paper, or recorded. Copyright protection lasts for 50 years after the creator’s death. The protection gives creators exclusive use of their works, and protects the reputation of the creator by protecting his or her “moral rights.” Once a creator is automatically protected in Canada, the creator is protected in 166 countries around the world. The Act also protects the rights of performers, makers of sound recordings, and broadcasters, referred to as “other subject-matter” or neighbouring rights.
Integrated Circuit Topography Protection
Canada has had IP protection for the topography of integrated circuits through the Integrated Circuit Topography Act (ICTA) since the Act came into force on May 1, 1993, a relatively new IP protection. These integrated circuits, referred to as “microchips,” are tiny electronic devices found in everything from common appliances such as DVD players and washing machines to robots. Since the traditional areas of IP do not provide adequate protection for microchips, at least 20 countries have recognized this newest kind of intellectual property by establishing protection in a separate statute.
The ICTA protects the original design of a registered topography on its own or when embodied in a product such as a washing machine. A topography is considered original if it is developed through the application of intellectual effort and is not the mere reproduction of a substantial part or whole of another topography.
Some integrated circuit products may be entitled to protection under other areas of IP. For example, random access memory (RAM) and read only memory (ROM) devices, which may be used to store sets of instructions for electronic processors, may be entitled to microchip protection for the topographies embodied in such circuits, and the sets of instructions they store may be subject to copyright protection as literary works, and may be entitled to patent protection as industrial methods.
Owners of registered topographies may prevent others from the following activities with respect to a protected topography or any substantial part of the topography: reproducing it; manufacturing a product incorporating it; and, importing or commercially exploiting it or a product or industrial article incorporating it (commercially exploiting could be, for example, sale, lease, offering or exhibiting for sale or lease or other commercial distribution).
A topography must be registered in order to be protected. The application for registration must be filed within two years of the first commercial exploitation of the topography. Registered integrated circuit topographies are protected for up to 10 years from the date of filing the application for registration. The term expires on December 31 on the tenth year after the year of the first commercial exploitation, or the year of the filing date, whichever happens first.
The rights of an owner of a topography are limited by the following three exceptions. After the first authorized sale of a product embodying a registered microchip, the registered owner has no right to control the product’s use, rental, resale, or redistribution (unless expressly reserved through a contractual arrangement). Also, a protected topography may be freely copied for the sole purpose of analysis or evaluation, or for the sole purpose of research or teaching with respect to topographies. Further, the topography may be taken apart to design a new and original one. This new topography must meet the originality requirements in the statute if it is exploited commercially without the authorization of the original owner of the rights.
It is not obligatory to identify products embodying registered microchips. However, failure to do so may be a valid defence in an infringement lawsuit if a defendant can prove that he or she had no knowledge of the registration of the topography. The voluntary notice may include the registered title, or similar wording, used to identify the topography in the registration application.
Protection under the federal statute protecting microchips is extended to nationals of other countries on a reciprocal basis. Canada has reciprocal agreements with the United States, Switzerland, Japan, and Australia.
Confidential Information and Trade Secrets
Ideas, per se, are not recognized as protectable subject-matter of patents, trade-marks, industrial designs, topography protection, or copyright. The closest thing to protecting an idea is through an agreement or contract that treats that idea as confidential information or as a trade secret.
Thus what is unique to the intellectual property area of confidential information and trade secrets is that it protects concepts, ideas, and factual information. For example, an idea for computer software, or a television show, or machinery to build cars may be considered confidential information. Further, a customer list or knowledge of a recipe, say, for a certain soda pop, obtained through employment at a soft drink company, may be considered trade secrets.
Unlike the other areas of IP, confidential information and trade secrets are not governed by a statute (except in the province of Quebec, where trade secrets fall under the Civil Code), but are based upon common law.3
Generally, a duty to maintain confidential information or trade secrets arises from a certain relationship. The relationship puts you under a legal obligation not to divulge the information to others. That relationship can be established because of the association of people, as in an employer-employee situation, or due to the nature of the information conveyed, as in a discussion of an idea. In order to be protected, the information conveyed must not be common knowledge, and it must be communicated in such a way, whether implicit or explicit, to instill an obligation of confidence.
One of the best ways to protect confidential information or trade secrets is through written contractual arrangements. Such a contract should describe in sufficient detail the type of information, the length of protection—if it is a limited one—geographical limitations on divulging the information, and any allowable uses of the information. The more specific and limited the terms and conditions in the contract, the more likely a court of law would uphold such an agreement.
In certain extreme circumstances, one may disclose confidential information; for instance, when it is in the public interest. Otherwise, such information may only be used within the limits of an agreement. If no agreement exists, you may disclose confidential information where no competitive edge can be gained from the use of the information, and the information will not be used in a way that will detrimentally affect the originator of the information. A court may be requested to grant an order to stop the continuing use of information, or may order monetary compensation to be paid by a person who unlawfully uses confidential information.
Overlap of Intellectual Property Protection
In some circumstances, you will find that a particular creation, or aspects of it, qualifies for more than one type of intellectual property protection. Where more than one type of protection is possible, you should consider the nature of protection(s) that most appropriately fits your needs. For instance, consider such things as the use to be made of the creation and which type of protection(s) would cover that use, the various durations of protection, rights attached to protected works, and the costs and procedures required for protection.
Further Information and Registration Forms
With the exception of confidential information, each of the above areas of IP has an office within the Canadian Intellectual Property Office (CIPO). CIPO provides general information on the various areas of IP, access to the patents, trade-marks, copyrights and industrial designs databases, IP registration forms, and more.
Notes
1. A Guide to Patents, Canadian Intellectual Property Office, www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr01090.html, accessed May 15, 2013.
2. See Canadian Intellectual Property Office Practice Notice dated March 28, 2012, www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr03439.html, accessed May 15, 2013.
3. Briefly, common law evolves through decisions in court cases (sometimes called case law); statutes are written laws approved and enacted by Parliament.
Chapter 2
Copyright Law in Canada
I just do what I do. I like to make music.
—Neil Young
History of Canadian Copyright Law
In Canada, copyright law falls under federal jurisdiction. The copyright law, then, does not vary from province to province but is consistent throughout the country. This is because the Parliament of Canada was given exclusive jurisdiction to deal with the matter of “copyrights” under subsection 91(23) of the Constitution Act of 1867.
The current Canadian copyright legislation is found in one statute called the Copyright Act.1 This piece of legislation, based on the United Kingdom Copyright Act, 1911, was introduced in 1921 and came into force on January 1, 1924. Since that time, it has remained the governing copyright legislation in Canada, along with its schedules, annexes, and rules, and including various amendments made to it.
The Canadian Copyright Act, consolidated with amendments made to it since its enactment in 1924, related information, and related regulations are at http://laws.justice.gc.ca/en/C-42/index.html.
Before the 1924 Act came into force, the governing legislation consisted of various pre-Confederation provincial legislation, post-Confederation federal statutes, British statutes, and the Berne Convention (an international convention on the protection of copyright-protected works, which is discussed in Chapter 5).
Since 1924, there have been a number of amendments made to the Copyright Act, and in 1988 the Act was substantially modified. The bill introduced in the House of Commons that resulted in the 1988 amendments was numbered “Bill C-60” and was at the time known as “Phase I” of the amendments in the then copyright revision process. Nine issues were dealt with in these amendments:
Since 1988, the 1924 Act has been amended a number of times. It was amended in order to comply with the Canada–United States Free Trade Agreement and the North American Free Trade Agreement (NAFTA). The definition of musical works was amended by Bill C-88. Certain administrative provisions were amended by the Intellectual Property Improvement Act. On January 1, 1996, amendments to the Copyright Act became effective to comply with aspects of Canada’s obligations for the Trade-Related Intellectual Property Rights (TRIPs) of the General Agreement on Tariffs and Trade (GATT).
A further major reform to the Canadian Copyright Act took place in 1997 with the enactment of Bill C-32, also known as Phase II of the then copyright revision process. These revisions include the following:
New rights for performers and producers, including royalty payments when their sound recordings are broadcast or performed in public.
A levy on blank audio recording media to be collected and paid to performers, producers, and authors for private copying of their works (at the same time such copying was made legal).
Exceptions for nonprofit educational institutions, libraries, archives, and museums to use copyright materials in specific ways without payment or authorization.
An exception to allow broadcasters to make a temporary copy of an event or performance to be broadcast at a later time.
Enhanced protection for exclusive distributors of books in Canada.
Guaranteed minimum awards for copyright infringement (called statutory damages).
An extension of rental rights to composers, lyricists, and performers of musical works.
A change in the perpetual copyright protection in unpublished works to a term of life of the author plus 50 years.
A change in the term of copyright in photographs to life of the author plus 50 years.
A recent major reform to the Canadian Copyright Act took place on June 29, 2012, with the Royal Assent of Bill C-11, the Copyright Modernization Act (CMA). Most of these provisions became effective November 7, 2012.2 These revisions include the following.
In relation to provisions benefiting creators and owners of copyright materials, the CMA:
Provides new rights (making available and distribution) as set out in the digital World Intellectual Property Organization (WIPO) treaties.
Extends the duration of protection in sound recordings.
Makes photographers the first owner of copyright in their photographs even in the case of commissioned photographs.
Prohibits the removal or tampering of digital rights management (“DRM”) on content.
Prohibits the removal or tampering of copyright information on works (also called rights management information).
In relation to provisions benefiting consumers of copyright materials, the CMA:
Permits certain education-related uses of content including allowing teachers to use content in lessons conducted over the Internet.
Allows libraries, archives, and museums to digitize and copy material in an alternative format if there is danger of the original format becoming obsolete, and to provide interlibrary loans in a digital form.
Permits Canadians with perceptual disabilities to adapt legally acquired material.
Allows an individual to use protected materials when creating a new work such as a mash-up and to post the new work online on a site like YouTube.
Permits time-shifting of a recording of communication signals or programs for private purposes.
Permits reproduction of works for private purposes (e.g., individuals can copy music they legally own onto a computer, iPod, or MP3 player).
Amends the existing statutory damages so that there is a distinction between commercial and noncommercial infringement.
Expands fair dealing to include education, parody, and satire.
Other provisions in the CMA include:
A new secondary infringement action that covers peer-to-peer file sites that provide a system that they know or should know is designed primarily to infringe copyright.
Clarification that Internet service providers (“ISPs”) and search engines are exempt from liability when they are strictly intermediaries in communication, caching, and hosting activities. The bill obligates ISPs to notify subscribers who are allegedly infringing copyright.
In addition, the CMA requires review of the Canadian Copyright Act every five years “to ensure it remains responsive to a changing environment.”
As is evident and notwithstanding some major revisions, the Canadian Copyright Act remains a statute originally enacted in 1924, subject to various amendments. The basic structure and many of the provisions in the statute remain the same as in 1924, which is remarkable considering the law was enacted in an era before photocopiers, computers, DVDs, DVRs, and the Internet, as well as Google, Facebook, and Twitter. The wording in the Act and amendments is intended, for the most part, to be technology neutral. As an example of technology neutral wording in the 1924 Act, prior to the amendments made in 1988, that Act, which obviously did not deal with computer software, was interpreted by the courts to protect computer software. The 1988 amendments legislated this court decision.
This book deals with the Canadian copyright law as it exists at the time of writing. It does not consistently point out whether provisions were originally found in the 1924 Act, or have since been added, except for information purposes or when the date of a provision or an amendment has relevance on its comprehension and its practical effect. That being said, the provisions added through the CMA are all brand-new at the time of writing this book and have yet to be interpreted by court cases. What does this mean to you as a creator, owner, or consumer of copyright materials? The provisions or wording in the Copyright Act may be interpreted by the courts of law, which will guide us in interpreting the Act. For example, the meaning of education under fair dealing may be shaped by court cases. The shaping of the law by court cases must always be taken into account when understanding Canadian copyright law.
Government Responsibility for Copyright in Canada
There are two departments within the federal government that are primarily responsible for copyright matters in Canada. Industry Canada (www.ic.gc.ca) is responsible for the administration of the copyright registration system under the provisions of the Copyright Act. To be specific, the Copyright Office, directed by the Registrar of Copyrights, is responsible for registering copyrights in Canada. The Copyright Office is part of the Canadian Intellectual Property Office (CIPO) (www.cipo.ic.gc.ca) that comes under the jurisdiction of Industry Canada.
Functions of the Copyright Office include registering copyrights, maintaining the Register of Copyrights, and registering assignments and licences.
Industry Canada and Canadian Heritage (www.pch.gc.ca) are jointly responsible for developing policy for the revision of the Copyright Act.
In addition, an independent tribunal, the Copyright Board of Canada (www.cb-cda.gc.ca), among other things, sets royalties in certain circumstances for the use of copyright-protected materials. The Board describes its own mandate as:
The Board is an economic regulatory body empowered to establish, either mandatorily or at the request of an interested party, the royalties to be paid for the use of copyrighted works, when the administration of such copyright is entrusted to a collective-administration society. The Board also has the right to supervise agreements between users and licensing bodies and issues licences when the copyright owner cannot be located.3
The Canadian government does not have a role vis-à-vis enforcing the rights provided in the Copyright Act. The Act sets out private rights for citizens to enjoy. As such, it is not the responsibility of the government to monitor the use of copyright materials or to ensure that such uses are within the parameters of the law. Although individuals must generally enforce their own rights, there are certain cases where “criminal remedies” as set out in the Act are appropriate to deal with an infringement of copyright and the Crown may institute an action. These criminal remedies are further discussed in Chapter 13, “What Are the Remedies for the Infringement of Copyright?”
The Concept of Copyright Law
There are two very important concepts in Canadian copyright law that must be appreciated for a full understanding of the law, and consequently, much of the information provided in this book. These concepts relate to property rights in a creation, and to copyright protection and how it relates to ideas.
Property Rights in a Work Protected by Copyright
In physical objects that embody a copyright work, such as books, CDs, or DVDs, there are two types of property rights. First, there is a right in the physical property, the object itself. Second, there is a right in the intangible property. Copyright protects this intangible right. Thus, if you own a print book, you may read it, display it on your coffee table, and even lend it to a friend. However, you may not do anything that only the copyright owner has the exclusive right to do. For example, by virtue of owning the physical book, you may not reproduce, translate, or digitize it (that is, without permission of the copyright owner).
Print Books versus E-Books
The concept of copyright protecting the intangible aspect of a work must also be examined with respect to a work that only exists in a digital form, such as an electronic book or e-book. By “purchasing” (more accurately described as “licensing”) an e-book, you have certain rights in that e-book, but similar to a print book, you do not have unlimited rights. For example, you may read the e-book but you cannot reproduce the book (other than perhaps a technical reproduction that allows you to access the book on your e-book reader). Also, you cannot translate or modify the e-book without permission of the copyright owner.
Copyright Protection and Ideas
It cannot be overemphasized that ideas are not protected by copyright law. What copyright law protects is the expression of these ideas. This is based on the notion that ideas are not owned by anyone. This basic copyright principle applies no matter how novel or great an idea.
What this concept implies is that anyone can follow an idea set out in a book or an instructional video, or create a work based on the same idea, without infringing copyright. It also means that there can be copyright in two works expressing the same idea since it is the original expression of the idea that is protected by copyright. For example, two people may independently make sketches of the same tree, each sketch being protected by copyright and neither of them infringing the copyright in the other one.
Unlike the Canadian Copyright Act, the American Copyright Act is very explicit in stating items to which copyright protection does not extend. Section 102 of the U.S. Copyright Act states the following: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” Although this definition has no binding impact on Canadian law, it illustrates the notion concerning the lack of copyright protection in ideas and the like.
Notes
1. R.S.C, 1985, c. C-42, as amended.
2. The Copyright Modernization Act is at http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocID=5697419. The Order Fixing Various Dates as the Dates on which Certain Provisions of the Act Come into Force is in Appendix II to this book. Also, check www.copyrightlaws.com for any updates on the remaining provisions coming into effect.
3. See www.cb-cda.gc.ca/about-apropos/mandate-mandat-e.html, accessed May 15, 2013.
Chapter 3
Is Your Creation Eligible for Copyright Protection?
The best fame is a writer’s fame: it’s enough to get a table at a good restaurant, but not enough that you get interrupted when you eat.
—Fran Lebowitz, in Observer, May 30, 1993, “Sayings of the Week”
Criteria for Copyright Protection
The first part of this chapter discusses the three criteria for the protection of traditional copyright materials known as “works.” The second part focuses on the protection of nontraditional material, often referred to as “other subject-matter” or “neighbouring rights,” including performers’ performances, sound recordings, and broadcasts. This “other subject-matter” of copyright has more limited protection than “works.”
Copyright protection exists as soon as a creation is created or comes into existence. However, in order for a creation to be eligible for this protection, the creation must be a “work” within the meaning of the Copyright Act.
Works
A “work” within the meaning of the copyright law will be protected by copyright upon its creation provided three criteria are met. These criteria and basic requirements for copyright protection relate to:
