Publication means making copies of a work available to the public, the construction of an architectural work building or structure or any model of a building or structure , and the incorporation of an artistic work into an architectural work. Economic rights can be transferred in whole or in part. Ownership is transferred via an assignment or a copyright transfer agreement. An assignment occurs when a copyright owner transfers part or all of their economic rights to another party.
The assignment may be for the whole term of copyright or for a certain part of it and may be limited to certain jurisdictions or specific formats. Some owners may choose to retain ownership of their economic rights and instead licence use of some or all of their rights to others.
A licence does not transfer ownership of copyright, it simply grants permission to someone other than the owner to use the work, for certain purposes and under certain conditions. Prior to signing an agreement, owners should review the terms of the agreement carefully to ascertain whether they are transferring ownership via an assignment or simply licensing use of their work to someone else.
This distinction matters as it affects how and whether they may use their work in future for any purpose e. The terms, non-exclusive, sole, and exclusive define the types of licences that are typically granted in Canada.
The term non-exclusive means there is no limit to the number of licences that can be granted. A non-exclusive license is the most common type of license issued when licensing works protected under law. When a work is licensed on a non-exclusive basis it means that the copyright owner reserves the copyright and grants rights to the licensee for a specific purpose, duration and territory.
With a sole licence the copyright owner reserves its rights to make use of and copy its own work, but agrees not to license any other person than the sole licensee. The last type of licence is an exclusive license. This even prevents the person who grants the permission from reproducing his own work. This is seen as a disguised assignment, abandonment or sale of copyright. Infringement is the legal word for breach or violation of the rules in the copyright law. There are two kinds of infringements: indirect and direct.
Indirect infringement refers to persons who deal with infringing copies, or who, without legal authority, permit a public performance of a work. These provisions usually concern commercial dealings through sales of copies, commercial distribution, and trade. Direct infringement is where someone, without permission, does something only the copyright owner has the right to do or authorize. For example, only the copyright owner has the right to make a copy or authorize the making of a copy.
When a person makes a copy this is direct infringement unless permission is obtained or an exception applies. Canadian Copyright Law. Purpose This page provides an introduction to the basic principles of copyright law including copyright ownership, publication, and licensing. What is Copyright? Why Copyright? Protecting valuable creations A poem, painting, musical score, performer's performance, computer program-all are valuable creations, although perhaps no one can measure their worth.
Protecting the public interest An important goal of public policy is the enrichment of societal public interest. Literary Works Literary works consist of text-based material as well as computer programs. Examples of literary works covers works in electronic and paper formats include: Memoranda, email messages, journals, books, magazines, text books, talking books the underlying work, not the recorded voice , periodicals, monographs, government records and reports, pamphlets, newspapers, poetry, genealogical materials, letters, statistics, computer software, statutes, law reports, judicial decisions, forms, court records, databases, published and unpublished research papers, brokers' reports, stock reports, annual reports, manuscripts, microforms print on plastic , theses, conference proceedings, industry standards, Braille, postings to Internet newsgroups, large print materials, compilations of literary works on CD-ROMs and databases.
Dramatic Works Includes any piece for recitation, choreographic work or mime, where the scenic arrangement or acting form is fixed in writing or otherwise. Musical Works Any work of music or musical composition with or without words, including compilations of musical works, sheet music, and songs - with or without words, audiocassettes, audio CDs. Artistic Works Artistic works include paintings, drawings, maps, charts, plans, photographs includes photo-lithograph and any work expressed by any process akin to photography , engravings includes etchings, lithographs, woodcuts, prints and other similar works , illustrations, sketches, sculptures includes a cast or model , works of artistic craftsmanship, architectural works meaning buildings or structures or any model of a building or structure and compilations of artistic works.
Sound Recordings Sound Recording means a recording consisting of sounds, whether or not a performance of a work, but excludes any soundtrack of a cinematographic work where it accompanies the cinematographic work.
Communication Signals Communication signals include radio waves transmitted through space without any artificial guide, for reception by the public e. General Term Generally, copyright lasts 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.
Joint Authorship In the case of a work that has more than one author, the term will last for the remainder of the calendar year in which the last author dies, and for 50 years after that. Posthumous Works These are literary, dramatic or musical works, or engravings, protected by copyright that have not been published, performed in public or communicated to the public by telecommunication during the lifetime of the author.
Crown Copyright Copyright in government publications created for or published by the Crown lasts for the remainder of the calendar year in which the work is first published, and for 50 years after that. Section 12 of the Copyright Act stipulates: Some examples of works in the public domain are explained below. Ideas Copyright protects the expression of an idea but does not extend to the idea itself. Facts It is the expression of facts that is protected by copyright, not the facts themselves.
Duration of Copyright in Subject Matter Other than "Works" Performer's Performance Copyright lasts until the end of 50 years after the end of the calendar year in which the performance occurs. Sound Recordings Copyright lasts until 50 years after the end of the calendar year in which the first fixation of the sound recording occurs. Who Owns Copyright? Someone other than the Author An author of a work does not always own copyright. Rights of Ownership Economic Rights The economic rights available to owners under the Copyright Act include the right to produce, reproduce, publish, translate, authorize, and convert a work.
Physical Ownership vs Ownership of Copyright There is a difference between owning a physical object and owning its copyright. Registering Copyright Benefits of registration The Copyright Act provides that a certificate of registration of copyright is evidence that copyright exists and that the person registered is the owner of the copyright. Filing an Application To obtain a registration of copyright, you must file an application with the Canadian Intellectual Property Office and pay their required fee.
Publication of an Original Work What is publication? The case demonstrates the importance of having documents in place evidencing the ownership of copyright before software is licensed or disputes arise. In the case of employees, employers are best served by having an employment agreement where the employee acknowledges and understands that any copyright is owned by the company. The presumption of ownership in section 13 3 does not apply to independent contractors. For independent contractors, it is essential to have an assignment, in writing, for all copyrighted works that are created during the retainer.
Registration of copyright is quick and easy. Unlike the United States, a sample of the work need not be filed with a Canadian application. The costs are modest. A copyright registration provides presumptions in litigation that the authorship and ownership set out in the registration are accurate.
For software that is sold or licensed, a copyright registration has great value. To qualify for copyright protection a work must have originated from the author, not be copied, and must be the product of the exercise of skill and judgment that is more than trivial. It has long been recognized that computer software may be protected by copyright.
The Harmony case provides a useful guide to the parameters of that protection. In considering the boundaries of originality, the Court found that computer programming that is dictated by the operating system or reflects common programming practices is not original expression and will not receive copyright protection. Also, to the extent a user of software imports data into the program, the author of the software does not own copyright in the underlying data.
A significant issue in the Harmony case was ongoing modifications or fixes that were made over time. On the particular facts, the fixes were simple mechanical amendments that allowed the software to function in the manner originally intended.
Many of the changes were dictated by the Microsoft Access program and functionality. As such, it was held that the fixes were not original and no copyright attached to them.
This underscores the need for a comprehensive license agreement. To the extent there are elements in a software package that cannot be protected by copyright, a license agreement can be used to restrain further use after the business relationship is concluded. The Federal Court lacks jurisdiction to hear breach of contract matters. Given the Federal Court's inability to enforce contractual terms, it would not be surprising to see similar cases brought in the provincial courts, where copyright and contractual issues can be presented concurrently.
In brief, there is infringement where a defendant copies all or a substantial part of a copyrighted work. These rights can be separate from contractual rights in a license agreement. Harmony argued that because there was a breach of the license agreements, there must also be infringement of copyright. This argument was rejected. The court held that copyright infringement does not arise out of a breach of contract alone. On the facts of this case, the computer equipment located at Foss Transport was a Citrix server.
There was only one copy of the software on the server. Since continued use of the software did not require copies being made for individual terminals, use of the program, without more, on a Citrix server did not constitute copyright infringement. Similarly, exceeding the number of permitted users was not an infringement of copyright. This may have been a breach of the license, but that would only constitute a breach of contract. The Court also found that opening a file, making modifications and then saving that file does not make a reproduction as defined in the Copyright Act , and was not an infringement.
Decompiling was also considered. Using Microsoft Access was a means to allow a user or programmer to see the programming. The court held that there is no copyright infringement in looking at the programming. To fully protect software and other copyrighted works, the importance of contemporaneous assignment documents cannot be understated. A copyright registration is a prudent step in many cases for software and other creative works that are commercialized.
A well-drafted license should be used when commercializing software to create contractual rights, since copyright may not automatically apply to all software updates and uses. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. All Rights Reserved. When registering copyright in Canada, there is no need to file a copy of the software with the Canadian Copyright Office.
In fact, the Canadian Copyright Office will return any software which anyone attempts to file with them! It is therefore possible to obtain a copyright registration in Canada without having to disclose any of the confidential information which may be contained in the software although you will have to disclose the software's title.
In some cases, patent protection may also be available in Canada to protect certain types of computer software. Canadian patents are available to protect certain new, useful and non-obvious inventions, giving the owner of the Canadian patent the exclusive right, throughout the term of the patent, to make, construct, use and sell the invention in Canada.
Unlike copyright protection in Canada, Canadian patent protection for inventions is not automatic. To obtain the benefits of a Canadian patent, a Canadian patent must be obtained.
Furthermore, to obtain a valid patent for an invention in Canada, the invention must be fully disclosed in the patent specification.
In the case of Canadian patents applied for before October 1, , the patent lasts for a period of 17 years following the grant of the patent. In the case of Canadian patent applications filed on or after October 1, , the patent term is limited to 20 years following the date of the filing of the application for the patent. While the Canadian Patent Act states: "No patent shall be granted for any mere scientific principle or abstract theorem", nothing in the Canadian Patent Act expressly excludes a computer program from being patented in Canada.
The written policy of the Canadian Intellectual Property Office with respect to patenting computer software is as follows:. Patents for some types of software have been granted in Canada, and it is recommended that you consult with a Canadian patent agent to discuss whether a particular piece of software would be eligible for a patent in Canada.
As disclosure of an invention prior to filing patent applications in Canada and elsewhere may directly or indirectly result in the loss of patent rights in Canada and elsewhere for that invention, it is strongly recommended that the advice of a Canadian patent lawyer be obtained before any disclosure of the invention is made to anyone.
The law relating to trade secrets and confidential information may also be available to protect computer software. Trade secret law has arisen out of the broad "duty of good faith" and the principle of equity that whoever "has received information in confidence shall not take unfair advantage of it". The Supreme Court of Canada has stated that the test for whether there has been a breach of confidence consists of three elements:.
As trade secret law in Canada is a matter of provincial jurisdiction, the drafting and interpretation of agreements which contain trade secret provisions must be carried out by a lawyer in the province which governs the agreement in question. Similarly, the assessment of whether a breach of confidence has occurred must be carried out by a lawyer in the province which governs the obligation of confidence. For example, the owner of copyright in a piece of software may enter into a contract with an end-user, restricting the manner in which the software may be used.
Computer software contracts may be very straightforward or very complex, depending on the wishes of the parties to the contract and the complexity of the circumstances. When drafting or interpreting the terms of such a contract, it is to be noted that contract law in Canada is a matter of provincial jurisdiction, and the drafting and interpretation of contracts must be carried out having regard to the provincial laws governing the contract in question, and to the federal laws of Canada which are applicable within that province.
A trademark is typically one or more words, or numbers, or a design, or any combination of these used by a business to distinguish its goods or services from the goods or services of another business. Trade-marks may be registered in Canada at the Canadian Trade-marks Office. The owner of a Canadian trade-mark registration may institute "infringement" proceedings in court to stop others from using that mark, or another mark confusingly similar to it. Where a trade-mark has not been registered, it nevertheless may be possible to commence a "passing off" lawsuit to stop others from directing public attention to their wares, or service, or business, in such a way as to cause, or be likely to cause confusion in Canada between their wares or service, or business and your wares or service, or business.
Furthermore, Canadian provincial laws relating to unregistered trade-marks and trade names may be available to assist in the protection of computer software. Consultation with a Canadian lawyer in the province in question is required to answer questions relating to the specific laws applicable in that province.
Computer software which has been or which may be embedded on a semi-conductor chip may also be eligible for protection under Canada's Integrated Circuit Topography Act.
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