Copyright law and how it may affect your business

If you are in the business of photography, music, writing, web page design, software design or game design then the law of copyright is of great importance to you.

Copyright law is derived from the Copyright Act and applies to a wide variety of creations such as dramatic works, literary works (including software), choreographic works, artistic works, musical works, architectural works and photographic works. To own copyright in a work means to have the sole right to produce and reproduce the work in whole or in substantial part in any material form whatsoever. This includes translation from one language to another or from one form such as a book to another form such as a movie.

How is copyright obtained?

For copyright to exist the work must be original and the author of the work must be a citizen of a Berne Convention country or member of the World Trade Organization. These treaties grant reciprocity in copyright protection to citizens of other countries if those countries grant protection to Canadians. The work must be expressed in some tangible form. For example, the work cannot be an idea for a book, it must be a book. Copyright in a work exists as soon as the work is reduced to a tangible form. For example, copyright in this article belongs to me, as the author as soon as I write it. There are no formalities required, such as filing a copy of the work with a government office or applying for registration. However, registration of copyright is available through the Canadian Intellectual Property Office (www.cipo.gc.ca) and confers two benefits: the Certificate of Copyright is proof of ownership and authorship of the registered work in a court of law without having to adduce any further evidence; and, registration permits the owner to recover damages from infringement.

Ownership of copyright.

The author of a work is the first owner of copyright. However, in certain circumstances, ownership of copyright passes from the author to another owner. For example, in an employment situation copyright in a work created during the course of employment belongs to the employer. Copyright in a work prepared under the direction and control of a government department belongs to that department. Copyright in a photograph or portrait ordered by some person and paid for belongs to the person who ordered. It is very important that businesses that outsource the creation of works ensure that the contract specifies ownership of copyright. Works in which copyright exists should be marked with the copyright symbol © the name of the author or owner and the date of first publication in the case of a published work.

Moral rights.

Moral rights are associated with copyright and include the right of authorship and integrity of the work. The right of authorship is the right of the author to be associated with the work by name or to remain anonymous. The right of integrity is the right to prevent any manipulation or distortion of the work by another. Moral rights last as long as copyright but they cannot be assigned from the author to another person. They can only be waived. Businesses, when outsourcing work that is subject to copyright should ensure that all moral rights in a work created by an outside author are waived.

Duration of Copyright

In Canada, copyright generally lasts for the life of the author plus 50 years beyond the death of the author.

Infringement of Copyright

Copying a work without consent of the owner is infringement. Persons who knowingly sell infringing works are secondary infringers. Businesses should treat any copied works with suspicion unless they can verify that copyright no longer exists in the work or that authority to copy the work was obtained. Works available for public display, such as on the Internet, are not necessarily available for copying.

There are a number of exemptions to copyright infringement, such as, works copied for research or private study. However, these exemptions are complex and if a business is not sure whether an exemption applies to them, it should consult a lawyer.

Infringement of copyright and moral rights carries both civil and criminal remedies including imprisonment and fines of up to one million dollars.

Conclusion

Businesses must be aware of copyright laws and exercise caution before copying material from any source or receiving material that may have been copied without authority. Outsourcing contracts for the development of works, such as software or written material should contain clauses to transfer copyright to the contracting party and waive all moral rights. When in doubt, consult a lawyer.