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Copyright Guide

"Today's business community continues to grow as a direct result of the marketing genius of the graphic artists community and the programming skills of software developers. It is a crying shame that so many of these talented artists are not protecting themselves."
Victor G. Arcuri - May 1983.

In this guide we will look at what a copyright is, how it can benefit you, the advantages of registering, and how to register. Keep in mind that this guide offers general information only, and does not cover all the complex issues of Copyright Law. For exact definitions and details, consult the Copyright Act, the Copyright Rules, and decisions of the courts in specific cases. You can find these texts in many libraries. You can also buy a copy of the Act and Rules in any bookstore selling Federal government publications. 

If you have questions not covered by the related sections you may direct them to: 

ARVIC Search Services Inc. 
#260 - 2323-32 Ave. NE., Calgary, Alberta T2E 6Z3 
Telephone: (403) 234-0844 Fax: (403) 294-0944 E-Mail


Canadian Copyright Guide

Table of Contents


COPYRIGHT

In this section we will discuss

  1. Valuable Creations
  2. Copyright Protection
  3. Copyright Includes the Sole Right To:
  4. When Copyright Does Not Apply
  5. Infringement
  6. Fair Dealing
  7. Automatic Protection
  8. Authorship
  9. Ownership
  10. Duration
  11. Moral Rights

Valuable Creations

A poem, painting, musical score, computer program; are all valuable creations, although perhaps no one can measure their true worth. Some may earn a lot of money in the marketplace and others, none at all. Regardless of their merit or commercial value, the law regards all such original creative works as copyright material. This means that an owner of the copyright in a poem, song, or other work, has a number of rights which are protected under the Copyright Act.

By the same token the business owner who creates, or has his employee create, any instruction manual, literature or users guide also has a number of rights which are protected under the Copyright Act.

Simply put, the Act prohibits others from copying your work without permission. Its purpose, like that of other pieces of intellectual property legislation, is to protect owners while promoting creativity and the orderly exchange of ideas.

Copyright law has become increasingly complex over the years to respond to a sophisticated communications environment. In this high-tech age, there are many new ways of producing creative works as well as of imitating or exploiting them without the creator's permission. The photocopier, videocassette recorder, personal computer, the Internet and digital reproduction are just a few examples of modern devices that help artists communicate with their audiences, but also makes it harder to control unauthorized use.

The Copyright Office - The federal agency responsible for registering copyrights is the Copyright Office. Registration is official acknowledgement of your copyright claim. It means that the Copyright Office has recorded the details which you, or your agent have provided, and gives a certificate attesting to this fact.

In addition to registering copyrights, the Office maintains records of all registrations and other pertinent documents for public use and provides information to the public about the registration process.

Staff at the Copyright Office do not interpret the Copyright Act or counsel in any matters other than registration or the use of Office records. For professional advice, you may wish to consult an intellectual property specialists with knowledge in the field.

The records of the Copyright Office are open to the public; you may search through them to find information, such as, who owns a certain copyright, and whether ownership has changed. Note that registrations recorded after October 1991 are on a computerized system. Staff will be pleased to give you the basic information needed to conduct searches.


Copyright Protection

What is a copyright? - In the simplest terms, copyright means the right to copy. Only the owner of the copyright, usually the creator of the piece, is allowed to produce or reproduce the work in question or to permit anyone else to do so. Copyright law rewards and protects creative endeavour by giving the sole right to publish or use your work in any number of ways. You may also choose not to publish or to prevent anyone else from doing so. By way of example, the business that creates instruction manuals, descriptive literature, promotion material and price lists or develops computer software has the right to prevent others from copying this creation.

Copyright applies to all original literary, dramatic, musical and artistic works. Each of these general categories covers a wide range of creations. Here are just a few examples:

Literary Works - Books, pamphlets, product literature, instruction manuals, operation manuals, poems and other works consisting of text, including computer programs;

Dramatic Works - Films, videos, plays, screenplays and scripts;

Musical Works - Compositions that consist of both words and music, or music only (note that lyrics only fall into the literary works category);

Artistic Works - Paintings, drawings, maps, photographs, sculptures and architectural works.

Keep in mind that copyright also applies to all kinds of recordings, such as records, cassettes, and compact discs, which are called "mechanical contrivances" in the Copyright Act. There is a separate copyright for the musical work, for example, a song, and for the device, such as a cassette that produces the song. Separate protection exists because the song and the sound recording are considered to be two different works.

The word original is key in defining a work that qualifies for copyright protection. Naturally, you cannot obtain a copyright for someone else's creation. Originality can be tricky to determine, however, and many court cases revolve around the question of whether a work has been copied, even in part, from somebody else's work.

Copyright means the sole right to produce or reproduce a work, or a substantial part of it in any form. It includes the right to perform the work, or any substantial part of it, or in the case of a lecture, to deliver it; if the work is unpublished, it includes the right to publish it, or any substantial part of it.


Copyright Includes the Sole Right To:

  • Produce, reproduce, perform or publish any translation of the work;
  • Convert a dramatic work into a novel or other non-dramatic work;
  • Convert a novel, or non-dramatic work or an artistic work into a dramatic work by way of performance in public or otherwise;
  • Make a sound recording of a literary, dramatic or musical work;
  • Reproduce adapt, publicly present a work by Cinematography; communicate the work by telecommunication;
  • Represent an artistic work created after June 7, 1988, at a public exhibition;
  • In the case of a computer program that can be reproduced in the ordinary course of its use, or a sound recording, to rent it out; and,
  • Authorize any such acts.

Copyrights vs trademarks, patents, industrial designs and integrated circuit topographies.

People often confuse copyrights with other forms of intellectual property, particularly trade marks, patents, industrial designs and integrated circuit topographies.

Trademarks - are used to distinguish the goods or services of one person or company from those of another. Slogans, names of products, distinctive packages, or unique product shapes are all examples of features that are eligible for registration as trademarks. Sometimes, one aspect of a work may be subject to copyright protection, and another aspect may be covered by trademark law. For example, if you created a new board game, he may enjoy a copyright on the artwork of the game board and a trademark, for the game's title.

Patents - protect new and useful inventions such as processes, equipment, and manufacturing techniques. They do not cover any artistic or aesthetic qualities of an article. Unlike copyrights, patents can only be obtained by registration.

Industrial designs - are protected for their original shape pattern or ornamentation used to adorn a useful manufactured article. The artwork of your client's game board may be subject to copyright protection. Industrial design protection might be available for the board itself. Like patents, designs are obtained only by registration.

Integrated circuit topographies - are protected upon registration. Protection is for the topography of an integrated circuit product, which is a manufactured device made up of a series of layers of semiconductors, metals, insulators and other materials. The three dimensional configuration is a "topography". The original design of the topography is protected.


When Copyright Does not Apply

Titles, names and short word combinations are usually not protected by copyright. A "work" for copyright purposes must be something more substantial. However, if a title is original and distinctive, it is protected as part of the work it relates to.

Copyright is restricted to the expression of an idea; it does not extend to the idea itself. You may have a brilliant idea for an advertising campaign, but until the script is actually written, or the advertisements purchased, there is no copyright protection. In the case of a game, it is not possible to protect the idea of the game, that is, the way the game is played, but the language in which the rules are written would be protected as a literary work.

Other items which are not protected by copyright include names or slogans; short phrases and most titles, methods of procedure, such as a method of teaching or sculpting, etc.; plots, characters, or factual information. In the case of a magazine article including factual information, it is the expression of the information that is protected, and not the facts. Facts, ideas and news are all considered part of the public domain, that is, they are the property of everyone. Note also that you cannot hold a copyright for a work that is in the public domain. However, you can adapt or translate such a work, and hold a copyright of an adaptation or translation.

The reporting of any event in which the public has a right to attend, unless the event is by invitation only, is deemed to be in the public domain. Conversations that are established to be confidential or off the record are the property of the giver of the material and not part of the public domain.

 
When Copyright Applies
Applies to Does not apply to
A song The title of the song
A Novel The idea or plot
A play A method of staging a play
A magazine Article Hamlet - or any work in the Public domain
The facts in an article
Computer Software The name of the software program

 


Infringement

A copyright gives you the sole right to produce or reproduce his work, through publication, performances and so on, or to authorize such activities. Anyone who does such things without permission is infringing, that is, violating, your rights. Naturally, if you publishes, performs or copy anyone else's work without their permission, you are infringing their rights.

One specific form of infringement is plagiarism. This is copying someone else's work and claiming it as your own. An obvious example would be taking a novel someone else wrote and publishing it under your own name (or pen name). Plagiarism can also entail using a substantial part of someone else's work. An example would be copying a novel, and simply changing the title and names of the characters. Ironically you do not own your life story. Any information about you that is in the public domain can be the subject of a book about you without consent.

Some activities, if carried out in private, are not considered infringement. For example, if you give a private performance of someone else's song or plays in your own home, this would not be infringement. On the other hand, making a copy of a video cassette movie protected by copyright is infringement, even if you only watches it at home.

 


Fair Dealing

People such as critics, reviewers and researchers often quote works by other authors in articles, books, and so on. They are not necessarily infringing copyright. The Copyright Act provides that any "fair dealing" with a work for purposes of private study or research, or for criticism, review or newspaper summary, is not infringement. However, in the case of criticism, review, or newspaper summary, the user is required to give the source and authors name, if known.

The line between fair dealing and infringement is a thin one. There are no guidelines that define the number of words or passages that can be used without permission from the author. Only the courts can rule whether fair dealing or infringement is involved.

Examples of infringement:

  • Reprinting an instruction manual or users manual without the copyright owner's permission.
  • Playing music of others as part of your advertisement.
  • Giving a public performance of copyright play without permission
  • Photocopying information for distribution.

Not infringement:
  • Quoting a few lines of the article in a research paper (fair dealing)
  • Playing records at home
  • Giving public performance of a play by Shakespeare (no copyright exists)
  • Gaining permission from the author and paying him or her a fee

For a complete list of exceptions to infringement, refer to the Copyright Act.

 


Automatic Protection (for Canadian and foreign works)

When you create an original work, you will have copyright protection provided that, at the time of creation, you were:

  • A Canadian citizen or British subject, or
  • A resident within Her Majesty's Realms and Territories, or
  • A citizen or subject of, or a person ordinarily resident in, a Berne Copyright convention country, or a Universal Copyright convention country, or
  • A citizen or subject of any country to which the Minister has extended protection by notice in the Canada Gazette.

You would also obtain automatic copyright if your work was first published in one of the above countries, even if he was not a citizen or subject of Canada or of one of those countries.

In short virtually everyone living in Canada can enjoy the benefits of automatic copyright protection. In addition, Canadians are protected in most foreign countries since most belong to one of two international treaties the Berne Copyright Convention or the Universal Copyright Convention. Citizens of member countries, enjoy the benefits of Canadian copyright laws, and Canada also extends protection to certain other member countries by way of notice in the Canada Gazette. Sound recordings, are not covered under the copyright treaties, but Canada does extend protection for sound recordings to citizens of member countries. There is quite a variation internationally as to the nature of the protection given to sound recordings.

 


Authorship

The author is normally the person who creates the work. See the discussion Authorship later in this guide under "Registration of Copyright".

 


Ownership

Generally, if you are the creator of the work you own the copyright. However, if you create a work in the course of employment, the copyright belongs to your employer unless there is an agreement to the contrary. Similarly, if a person commissions a photograph, portrait, engraving or print, the person ordering the work, in exchange for valuable consideration, is the first owner of copyright unless there is an agreement to the contrary. Also, you may legally transfer rights to someone else, in which case that person owns the copyright.

 


Duration

Copyright usually exists for the life of the author, the remainder of the calendar year in which the author dies, and for 50 years following the end of that calendar year. Therefore, protection will expire on December 31st of the 50th year, after which the work becomes part of the public domain and anyone can use it. For example, Shakespeare's plays are part of the public domain; everyone has an equal right to produce or publish them.

However, there are certain exceptions to the general rule of the life of the author plus 50 years. These are:

  • Three types of works, i.e., photographs, certain cinematography, and sound recordings where protection is based on the date of creation or publication, not the life of the author;
  • Works of Crown copyright;
  • Certain special rules relating to works which are normally protected for the life of the author plus 50 years,

Photographs - The copyright exists for the remainder of the calendar year of the making of the initial negative or Photo, or, where there was no negative or other plate, the making of the initial photograph, and 50 years thereafter.

Certain cinematographic works - Films and videos made since 1944 which do not have an original arrangement, acting form or combination of incidents (i.e., most home videos) are protected for the remainder of the calendar year of first publication and for 50 years following the end of that calendar year. However, if they were not published within 50 years following the end of the calendar year of their making, copyright lasts for 50 year following the end of the calendar year of their making. (In other words, if a film or video is published within 50 years of its making, it is protected for 50 years from the date of publication. If it is not published within that 50 year period, it is protected for 50 years from the date of making.) Films and videos of this type that were made before 1944 were protected for 50 years from the date of making. Films and videos which have an original arrangement, acting from or combination of incidents have always been protected for the life of the author plus 50 years.

Sound Recordings - Copyright for audio cassettes, recordings and similar devices, known as mechanical contrivances, lasts for the remainder of the calendar year of the making of the initial plate (master recording, tape, etc.) and 50 years after that.

Works of Crown Copyright - These are works created for or published by the Crown, i.e., government publications. Copyright in these works lasts for the remainder of the calendar year in which the work was first published, and for 50 years after that. Copyright in unpublished works is perpetual.

Rules - The following rules apply only to works which are normally protected for the life of the author plus 50 years. These rules do not apply to the works in groups above, but they apply to all earlier works.

 

  • Joint authorship - Copyright exists for the life of the author who dies last and 50 years following the end of that calendar year.
  • Author unknown - In the case of a work where the identity of the author is unknown, the copyright subsists for whichever of the following terms ends earliest: i) the remainder of the calendar year of the first publication of the work and a period of 50 years after that, or ii) the remainder of the calendar year of the making of the work and 75 years after that.
  • Posthumous works - These are works which have not been published (or, for certain types of works, have not been published or performed or delivered in public) during the lifetime of the author. The copyright in these works exists from the date of publication, performance or delivery in public, whichever may first happen, until the end of that calendar year and 50 years thereafter.
  • Unpublished works - Works which have never been published (or, for certain types of works, have never been published nor performed or delivered in public) have unlimited copyright protection.

 


Moral Rights

Even if an owner sells his copyright to someone else, he still retains what are called "moral rights". This means that no one, including the person who owns the copyright, is allowed to distort, mutilate or otherwise modify your work in any way that is prejudicial to your honour or reputation. Your name must also be associated with the work as its author, if reasonable in the circumstances. In addition, your work may not be used in association with a product, service, cause or institution in a way that is prejudicial to your honour or reputation without your permission.

Graphic Artists - This group of individuals is responsible for the majority of the creative genius in use by today's' business community. The decision of a business owner to use such works without first obtaining title is the single most stupid act a business person can undertake.

Following are some situations which may infringe the authors moral rights.

Example 1: You sold the copyright of a song to a certain publisher who converts the music into a commercial jingle without permission.

Example 2: You sold the copyright for a novel to a publisher who decides to give it a happy ending, instead of the tragedy that you wrote.

You cannot sell or transfer moral rights to anyone else, but you can waive them when you sell or transfer the copyright, or at a later date. A contract of sale or transfer may include a waiver clause. Moral rights exist for the same length of time as copyright, that is, for the lifetime of the author plus 50 years more, and pass to the heirs of the author, even if theydo not inherit ownership of the copyright itself.

 


REGISTRATION OF COPYRIGHT

In this Section we will discuss.

  1. The Benefits
  2. How to Register
  3. Authorship
  4. Registration Fees
  5. What the Registration Covers
  6. Indicating Copyright

The Benefits

An artist does not have to register his copyright to have protection. However, when he registers he will receive a certificate which can be used to his advantage in the event that his work is infringed.

A certificate of registration is evidence that an artists work is protected by copyright and that he, the person registered, is the owner. In the event of a legal dispute, you do not have to prove ownership; the onus is on his opponent to disprove it.

However, registration is no guarantee against infringement. An artist will have to take legal action on his own if he believes his rights have been violated. Also, registration is no guarantee that his claim of ownership will eventually be recognized as legitimate. Note also that the Copyright Office does not check to ensure that an artists work is indeed original, as was his claim. Verification of claims can only be done through a Court of law.

 


How to register

You register a copyright by completing a simple application form and sending it to the Copyright Office, along with the appropriate fee. You do not send a copy of your work along with the application. The Copyright Office does not review or assess works in any way, nor does the Office check to see whether the title of your work has already been used. Many works may appear with the same title, but if each work has been created independently, each will have its own copyright protection. A sample of a copyright application is included in chapter eleven.

Please note, however, that you may need to send copies of your work to the National Library of Canada. Under the National Library Act, two copies of every book published in Canada, and a copy of every sound recording manufactured in Canada that has some Canadian content, must be sent to the National Library within one week of publication. (Your publisher may have already made these arrangements.) For more information on this, contact:

Legal Deposit National Library of Canada
395 Wellington Street
Ottawa, Ontario
KIA ON4
E-mail: legal.deposit@lac-bac.gc.ca
Website: http://www.collectionscanada.ca/index-e.html
type "Legal Deposit" in the Site Search field

Telephone: (819) 997-9565

When an application form is received in the Copyright Office, it is reviewed to make sure it was completed properly. If necessary, suggestions for changes are made, the relevant information is entered into a data base and a registration certificate is issued.

Once a registration has issued, the Copyright Office has the authority to make small corrections, such as the removal of clerical errors made in preparing an application or a registration document. However, only the Federal Court of Canada can Authorize substantial changes.

 


Authorship

Since duration of a copyright is usually based on an author's lifetime, it is important for the Copyright Office to know the author's name.

If you are the creator of a work (e.g., writer, artist, composer, playwright or programmer) you are considered its author. In most cases, therefore, you should insert your name and address in the relevant section of the copyright application form. If the work was created by an employee of yours the employee's name should appear on the form as author (even though you own the copyright). If there are two authors of the same work, give the names and addresses of both. If there are many contributing authors, all their names and addresses should be given. However, if the work was created by many people under the direction or an editor-in-chief, that persons name may be given as author.

The author of most types of works is the individual who created the work. For all works normally protected for the life of the author plus 50 years (ie., literary works, musical works) the author must be an individual as opposed to a corporation.

However, for three types of works, photographs, certain cinematographic works, and sound recordings, there are special rules defining who the author is. For these types of works, the author may be either an individual or a corporation. The author of a photograph is the person who owned the negative or original photograph (if there was no negative, as in Polaroid or electronic photography) at the time it was made. For cinematographic works made prior to January 1, 1994 which do not have an original arrangement, acting form or combination of incidents (i.e., most home videos) the author is the person who owned the negative or original video tape at the time it was made. For cinematographies made on or after January 1, 1994, there is no special rule and the author is simply the person who created the work. For sound recordings made prior to January 1, 1994, the author is the person who owned the master tape or original recording at the time it was made. The author of a sound recording made on or after January 1, 1994 is the person by whom the arrangements necessary for the making of the sound recording were undertaken.

When deciding who the author of a work is, you must use the rule which applied at the time the work was created regardless of when the work is registered.

The persons authorized to sign the copyright application form are:

 

  • You (the applicant) or his agent;
  • A partner, in the case of a firm
  • A director, secretary or other principal officer in the case of a corporation; or
  • Your heirs or legal representatives. (An authors work is part of his or her estate, and the heirs or successors may register a copyright if this has not been done before the author's death.)

Some authors prefer to use a nomdeplume, or pen name, rather than their real names on their published works. You may include this nomdeplume on an application for registration, but you must also give the full legal name. This is necessary because, without his legal name, it would be difficult to determine the full duration of the copyright, i.e., your lifetime plus 50 years.

Nature of the work - A artist will have to include on the application which category his work fits into; literary, artistic, musical, dramatic, or a combination of these, or mechanical contrivance. You will also have to indicate whether his work is published or unpublished. A work is considered published when copies of it have been issued to the public. Also, the construction of an architectural work and the incorporation of an artistic work into an architectural work constitute publication.

The following do not constitute publication: The performance in public of a literary, dramatic or musical work, the delivery in public of a lecture, the communication of a work to the public by telecommunication, or the exhibition in public of an artistic work.

Length of the registration - The registration process takes about eight weeks if the Copyright Office staff reviews your application and accepts it without further questions. If amendments are required, the processing time may be longer. Registration occurs once any amendments have been made and the application is accepted. The Office then issues a certificate of registration.

 


Registration Fees

The applicant must pay the prescribed fee when applying for registration of copyright. That fee covers the review of his application and, if it is acceptable, a registration certificate will be issued at no additional charge. However, if his application is withdrawn or refused, the fee is not refunded. Send your payment with the completed application form.

AS OF OCTOBER 1997 THE GOVERNMENT FEE TO REGISTER A COPYRIGHT WAS ONLY $65.00.

Registration is valid for as long as the copyright for the work exists. Once you register copyright, you do not have to pay any additional fees to maintain or renew it. If you register the copyright of an unpublished work, you do not have to register again after publication.

 


What the Registration Covers

Normally, each song, book, recording, and so forth is considered a separate work and requires a separate application and fee. There is no blanket type registration for several works by one author. However, if you are registering a book of poems, songs, photographs, etc., you may register the book as one work. Also note, that if the work is published in a series of parts, such as an encyclopedia, one registration covers all the parts in the series.

 


Indicating Copyright

There is no requirement to mark your work under the Copyright Act. The Universal Copyright Convention provides for marking with a small "c" in a circle, the name of the copyright owner and the year of first publication, for example,

©Jane Doe, 2005.

Although not obligatory such marking can serve as a reminder to others of a copyright as well as providing the name of the owner. Some countries that are members of the Universal Copyright Convention but not of the Berne Copyright Convention, require such marking. You may use this notice even if you have not registered his work.

Policing your copyright - The Copyright Office is not responsible for ensuring your copyright is not being infringed. This is the artists responsibility. Suppose a person publishes literature very much like yours simply disguising the plagiarism with a few name changes. It is up to you to launch legal action. It will then be up to the courts to decide whether indeed you have been wronged. However, the copyright act does contain criminal remedies which apply to certain types of serious infringements or piracy.

Agreements and licenses - As the owner of a copyright you may confer rights to produce, or reproduce, a creative work to other people through a legal agreement. There are many kinds of agreements, with the main types being assignments and licenses.

An assignment occurs when you transfers part, or all, rights to another party. The assignment may be for the whole term of the copyright, or for a certain part of it either generally or subject to territorial limitations. In this case you have given up rights for a certain period, or completely. You do not have to register his assignment with the Copyright office, but it is wise to do so. Suppose the original copyright owner does assign the rights to two separate parties for the same work. If one party does not register its assignment, the assignment that was registered will be considered the valid one.

A license gives someone else permission to use your work for certain purposes and under certain conditions, but you still retain ownership. You have not given up rights. To be valid, an assignment or license must be in writing and signed by the owner. Assignments and licenses, which are considered "grants of interest" in a copyright, may be registered with the Copyright Office. All you have to do is send in the original agreement or a certified copy of it, along with the prescribed fee (see the fee schedule). Registration takes about six weeks. The Copyright Office will retain a copy and return the original along with a certificate of registration.

Royalties - Royalties are sums paid to copyright owners as commission for sales of their works or permission to use them. For example, a composer is entitled to a royalty every time a radio station publicly plays his or her record. You do not have to pay royalties for a private performance, such as playing music at home. But you do if you are holding a dance or concert, since this is considered a public performance. In many cases, the concert hall, hotel, or other facility will have already made the necessary arrangements for paying royalties.

Tariffs - Tariffs are set fees that users must pay for using certain copyright material. For example, cable companies pay tariffs for permission to transmit programs. Both tariffs and royalties account for a great many business transactions every day. To help regulate this complex and growing sector of the economy, the government has set up public tribunal known as the Copyright Board. This Board reviews and approves fees set by the Canadian performing rights society SOCAN, the Society of composers, Authors, and Musical Publishers of Canada, sets tariffs for cable retransmissions and arbitrates tariffs if there is a disagreement between a licensing body and another party.

In addition, the Board grants licenses for the use of published works in certain cases. For example, if you wanted to use a published work, but can not locate the owner he could apply to the Copyright Board for permission. You would most likely have to pay a fee which would be kept by the Board on behalf of the owner until that person can eventually be located. For more information contact: The Secretary of the Copyright Board of Canada 56 Sparks Street, Suite 800 Ottawa, Ontario K1A 0C9 Tel.: (613) 952-8621 Fax: (613) 952-8630

Collectives - Sometimes people might find it inconvenient or difficult to administer the rights they hold through the copyright system. In such cases, they might choose to join a collective. That is, an organization that collects royalties on behalf of its members. Collectives, also known as licensing bodies, grant permission to people to use works owned by their members and determine the conditions under which those works can be used. The organization may also launch a civil suit on behalf of a member in the case of copyright infringement. There is a wide range of collectives covering such areas as television and radio broadcasts, sound recordings, reprography (photocopying), performances, video recordings and visual arts.

One example is a reprography collective called CANCOPY which negotiates licenses with users, such as schools and organizations, and collects fees on behalf of copyright owners for permission to photocopy their works. Suppose you is the owner of the copyright in a history of Canada: membership in the collective allows it to grant permission to teachers; for example, to copy chapters of your client's book and collect fees on his behalf.

Remember that you may not make photocopies of material protected by copyright (other than for purpose of fair dealing) without permission, nor may a library. To seek permission, contact the owner or CANCOPY, if the owner is a member at; CANCOPY 214 King St. West, Suite 312, Toronto, Ontario M5H 3S6 Tel.: (416) 971-9882 Fax: (416) 971-5633. Your client may obtain a list of some other Canadian collectives through the Copyright Office or the Copyright Board.

Performing rights societies - A performing rights society is a collective that deals with musical works, collecting royalties on behalf of composers, lyricists, songwriters and MUSIC publishers for the public performance or broadcasting of their music. There is currently only one such organization in Canada. SOCAN, the Society of Composers, Authors and Music Publishers of Canada. SOCAN 41 Valleybrook Drive Don Mills, Ontario M5B 2S6 Tel.: (416) 445-8700 Fax (416) 445-7108

 


WHAT BUSINESS'S SHOULD COPYRIGHT

 


The single least expensive form of protection for intellectual property is copyright. It is the one form of protection that every business person should be acquainted with.

Advertisements - All printed displays used to convey your business message to the buying public. If you hire an advertising agency to produce advertising copy then the copy should be the subject of a copyright registration.

Annual Reports of a Public Company - These reports are not considered to be in the public domain. Even though the securities commission may require a company to serve public notice of the affairs of the company that does not give the reader of the report any right to copy or reproduce it.

Computer Software - When you hire an outside programmer, or assign the task to an employee, to develop software specific to the operation of the business, or the development of any macros for use in the day to day operation, you should insure that the time and money you have invested into this work does not fall into the hands of someone else the programmer may work for.

Customer or mailing lists - Once material is stored on a computer, such as lists, it is a literary work and can not be copied.

Drawings - All detailed drawings depicting how a product is used, installed or placed is material that is the proper subject of a copyright registration.

Instruction or User Manuals - Any manual on how to use or install products, the benefits of use or how to participate in an event or game is the proper subject of a copyright registration.

Literature - When used to promote a product or business is both an artistic and literary work that is the proper subject of a registration.

Logo's - Any and all characters, caricatures, or logos used in association with your business and described as being an artistic creation should be protected.

Newsletters - When circulated to staff or clients often contain material that would be of interest to others. This literary work is the proper subject of a copyright registration as the material is specific to promoting of the business to its customers.

Price Lists - Every competitor wants your price lists. You can prevent the wide spread distribution of price lists by competitors by registration of same as a copyright.

 


PROTECTION WITHOUT REGISTRATION

 


Every business person can protect his or her self by introducing a few simple procedures into there existing business practice. First! He must begin to service public notice of his claim to ownership. He can achieve this by placing a copyright notice on everything that he distributes. This includes all the items that would be the subject of a copyright registration. In addition we strongly suggest he adopt polices whereby he enters into simple one page agreements with everyone with whom he comes into contact. They include;

Employees - Under provincial statutes most, if not all the work generated by an employee is considered to be the property of the employer. However, it is incumbent upon the employer to prove that the artistic works were created in the normal course of employment. Therefore an employment contract that clearly spells out an employees duties and confirms the fact that any intellectual property that is created by the employee during the term of his employment is the employers property unless so stated in writing is a must.

Suppliers - All suppliers should sign agreements wherein they confirm that the exact composition of any material you purchase from them is considered to be confidential and not an item to be discussed with anyone.

Directors - Directors of a corporation are most often not employees. However, they bring to the corporation, creative skills that are presented for the use of the corporation. Such directors need to sign agreements wherein they confirm that the creative material they supply to a corporation is an asset of the corporation for which they have no claim at law.

Shareholders - Almost all shareholders of new corporations bring to the corporation a collection of assets that in most cases consist of their skills. These skills are most often transmitted to employees who carry on work based on such skills. These shareholders need to enter into agreements with the corporation that confirm the skills recognized as assets are the property of the corporation, once shares in the corporation are issued.

Outside Consultants - When a corporation hires an outside consultant to create business plans, marketing plans, proposals or software or any other copyrightable material they should sign an agreement confirming the authors rights in the material are transferred to the corporation. Failure to have such an agreement executed could result in the author making copies or variations of the material available to others.

Graphic Artists - Are by definition creators of new intellectual property. They are artists who provide you with specific works of art. You may decide you do not like the work they create. However, do not, under an circumstances, use the material they have created without clarification as to the ownership of the material. Once you take position of the artistic works, make certain you have an assignment of the copyright or you have paid for something that you can not use.

Advertising Agents - This group of artists falls into the same category as a graphic artists. The material they supply can be classified as a literary work.

Customers - When you properly serve public notice with every item sold, the public can not claim ignorance when they infringe on rights. A copyright notice should be attached to every sold item.

 


COMMON QUESTIONS ABOUT COPYRIGHT

 


Q) What is a copyright?
A) A copyright is sole exclusive right to copy a creative work or allow someone else to do so. It includes the sole right to publish, produce or reproduce, or perform a work in public, translate a work, communicate a work to the public by telecommunication, to exhibit an artistic work in public under certain conditions, and in some cases, rent the work.

Q) To what does copyright apply?
A) Copyright applies to all original literary, dramatic, musical and artistic works. These include books, other writings, music, sculptures, paintings, photographs, films, plays, television and radio programs, and computer programs. Copyright also applies to sound recordings which such as records cassettes and tapes.

Q) What is not protected by Copyright?
A) Themes, ideas, most titles, names, catch phrases and other short word combinations of no real substance.

Q) Who owns the copyright?
A) Generally, the owner of the copyright is: a) the creator of the work; or b) the employer, if the work was created in the course of employment unless there is an agreement to the contrary; c) the person who commissions a photograph, portrait, engraving or print for valuable consideration employment unless there is an agreement to the contrary; or d) some other party, if the original owner has transferred his or her rights.

Q) How do I obtain copyright?
A) You acquires copyright automatically when he creates an original work.

Q) Do I have to do anything to be protected?
A) No. Since you obtained copyright automatically, he is automatically protected by law. However, it is still a good idea to register your client's copyright and to indicate a notice of copyright on his works.

Q) What are the benefits of copyright registration?
A) Registration gives you a certificate stating that he is the copyright owner. He can use this certificate in court to establish ownership. (The onus is on your client's opponent to prove that you does not own the copyright.)

Q) How do I register a copyright?
A) You file an application with the Copyright Office, along with a prescribed fee. The application form and instructions for filling it out are available from the Copyright Office. The registration process normally takes six to eight weeks. The fee covers review of your client's application, registration, and his official certificate.

Q) Once I have registered, do I have to pay further fees to maintain my copyright?
A) No. The registration fee is a one time expense.

Q) How long does copyright last?
A) Generally, copyright in Canada exists for the life of the author plus 50 years following his or her death. There are some exceptions. Please refer to the section called "Duration" in the part "Copyright Protection". Copyright protection always expires on December 31 of the last calendar year of protection.

Q) Does the Copyright office check to ensure that my claim of copyright is legitimate?
A) No, the Office does not verify ownership. Only the courts can do that.

Q) Do I need to mark my work with a notice of copyright?
A) This isn't necessary to be protected in Canada, however, your client must mark his work to be protected in some other countries. Even though it is not always required, marking is useful since it serves as a general reminder to everyone that the work is protected by copyright.

Q) Is the copyright of a Canadian author valid in foreign countries?
A) Yes, as long as the country in question belongs to either the Berne Copyright Convention or the Universal Copyright Convention. These conventions include most countries in the world.

Q) Is the copyright of a foreign author valid in Canada?
A) Yes. Please refer to the section entitled "Automatic Protection for Canadian and foreign works".

Q) Should I send copies of my work with my application?
A) No, copies aren't required.

Q) What is the difference between an assignment and a license?
A) An assignment is a transfer of ownership of the copyright from one party to another. A license is a contract which, for specific purposes, allows someone to use a work temporarily.

Q) What is copyright infringement?
A) Unauthorized use of copyright material. Plagiarism - passing off someone else's work as your own is a form of infringement.

Q) What is fair dealing?
A) Use or reproduction of a work for private study, research, criticism, review or newspaper summary.

Q) Will the Copyright Office prevent others from infringing my rights?
A) No. The responsibility for policing your client's copyright rests with the owner.

Q) Can libraries or educational institutions make multiple copies of parts of books or articles for student use?
A) No. The making of multiple copies requires the consent of the copyright owner. This consent may be obtained through a licensing agreement with a photocopying collective. However, the Copyright Act does allow the copying by individuals of parts of works for private study or research. Such copying should be minimal. This exception falls within the fair dealing section of the Act.

 

 

Arvic Search Services Inc.
Suite 260, 2323 - 32 Ave. N.E. Calgary, Alberta Canada T2E 6Z3
Phone: 403-234-0844 Toll Free: 1-888-227-8421 Fax: 403-294-0944 or Email Us