Lorraine M. Fleck - March 9, 2012 - Copywrite lawyer

Lorraine M. Fleck
Copywrite Lawyer

Hoffer Adler LLP - Barristers & Solicitors - Trade-Mark Agents

Canadian Copyright Law: A Primer

1.What is copyright?

• Copyright is the exclusive right to reproduce original content and stop others from reproduction that content
• Copyright in the U.S & Canada are drastically different

2. What does it protect?

• Original, literary, dramatical, musical and artistic works    -Literary includes:books, pamphlets, magazines, plays, scripts
• Audible music with or without works
• Paintings photos, map;s, charts, plans, photos, engravings, sculpture, crafts and architectural works such as buildings, sculptures and models

3. How is copyright created?

• The original work is created by a Canadian citizen or citizen of a Berne Convention country
• The work must come into physical existence, copyright does not exist on ideas
• If the work is published, the work is published in Canada or Berne Convention country
• No need to register of mark - if you want to sue for copyright infringement need to have the mark, but you don't need it

4. How long does copyright exist?

• Depends on the type of work and whether there are joint authors
• Most works = life of the author + rest of the calendar year in which the author died+50 years
• Joint authors = term lasts to the end of the 50th year of the last author dies
• Unknown author = lesser of the end of the 50th year after publication or 75 years after the work was made

5. Who owns the copyright?

• Photograph - the first person who owns the negative of the photo
• Employees - employers are the first owner of the works created for the employer by the employee
• If your contract states that all creative works made outside of work, even if non-employer equipment is used, the work still belongs to them

6. Who can use copyright materials?

• The owner - ownership can be transferred by must be in writing. The ownership transfer agreement usually is called an "assignment"
• Copyright ownership transfers always have to be in writing - doesn't have to be notarized in Canada
• "Assignment" is technical legal term for ownership transfer
• Anyone who has permission "license" the terms of the licenses dictate that the licensee can do under the license. The fee paid under license to the copyright owner "liscensor"is a "royalty"
• Liscensor (person that owns the right) licensee (person who has permission) 

7. What is copyright infringement?

• The making of an unauthorized copy
• There must be a substantial portion of the material copied - no hard and fast rule about this, but if you want to take just a snippet of a photo you might be okay - but if its the snippet with the entire essence of the photo you are probably infringing
• 1 Primary - a copy is made without permission
• 2. Secondary  the sale, rental or distribution of content of materials 

8. Are there exceptions to copyright infringement?

• Yes but under specific circumstances
•     Major categories "Fair dealing":
•     1. Research/Private study
•     2. Criticism/Review - i.e. movie review/critique,
•     3. News Reporting - must state who the author of the material is

• While not limited to private or non-commercial contexts, not very useful for advertisers, no advertising specific exception.
• Parody is NOT currently an exception in Canada 

Moral Rights -What are they?

• The authors right to:
• 1. Retain the integrity of the work, cant be cropped or mutilated, destroyed
• 1. Not have her/his work distorted
• 3. Have his/her name associated or not with the work, i.e. Banksy can enforce his work only to be associated as "Banksy"
• Activities must be shown to be to the detriment of author's honour/reputation
• Eaton Center got sued by Michael Snow because of the red ribbons they put on the Michael snow geese because it was infringing on his moral rights
• Read the story here: http://en.wikipedia.org/wiki/Snow_v._The_Eaton_Centre_Ltd.