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Copyright

Copyright is a form of legal protection granted to authors of "original literary, dramatic, musical and artistic" works. The word "copyright" comes from the fact that the copyright owner has the exclusive "right" to "copy" the work. The right arises automatically at the moment that the work is produced, even if the work has not been formally published. So the writer who writes a book or article, artist who draws a picture, and businessperson that creates a brochure all have copyright in their works, and can stop anyone who tries to copy their work without permission.

Limits of Copyright

It has been said that "copyright is a mile wide but an inch deep". This is because copyright protects only the particular expression of an idea, but not the idea itself. So a journalist that writes an article about the O.J. Simpson trial has copyright in her particular story, but she can't stop others from writing, in their own way, about the same event. Since everybody expresses themselves differently, there are potentially an unlimited number of works that can be produced based on the same idea. Copyright can also apply to parts of a work. For example, it was recently reported that a song produced by the Rolling Stones contained a segment of a song produced by k.d. lang, and therefore infringed her copyright in her song.

What Type of Work Can Be Copyrighted

The key requirements are that the work be original and fixed in a tangible medium of expression. By "original", the work doesn't have to be especially creative or new, just different enough to represent a unique expression. A "tangible medium" means paper, audio or video tape, or anything that provides some record of the work. These broad parameters mean that copyright is available in just about any writing or drawing, or any musical, cinematic, or dramatic performance, or their transmission over the airwaves. The list also includes sculpture, choreography, maps and blueprints, computer programs, and even some industrial products, if produced in limited quantities.

Where does copyright fit in, compared to other forms of intellectual property that you might have heard about? If your business produces a functional or useful article, or employs a functional process, the article or process might be patented. The name you use to identify or distinguish your product or service in the marketplace would be its trademark. But the product manual, training videotape, and sales materials would be subject to copyright.

Ownership and Use of Copyright

The author of the work is the first owner of the copyright in the work. However where the author is an employee, copyright belongs to the employer unless an agreement is made to the contrary. Also, for copyright to exist in Canada, the author of the work must be a citizen or resident of a country that is a party to the Berne Convention or Universal Copyright Convention, or a member of the World Trade Organization. This means that works produced by authors from countries outside of these organizations may be freely published or performed in Canada.

Copyright does not last forever. While it can be passed on to the author's descendants, the copyright in a work expires fifty years after the author's death.

The exclusive right to copy enjoyed by the copyright owner is actually a very broad right. It includes, among others, the right to all translations, the right to produce the work in another form (such as a book into a movie, or vice versa), to broadcast the work by telecommunication, or to publicly exhibit the work. It also includes moral rights, meaning, the right to prevent a publication or performance of the work that is contrary to its integrity, and the right to be associated with a work under a pseudonym or to remain anonymous.

In order to exploit fully the economic potential of their works, copyright owners may assign all or part of their rights to others. A common example is an author assigning the movie rights to his book. The legal instrument of assignments enables the work to be divided into numerous segments, such as by time period, geographical territory, and/or medium of expression (such as film, theatre, videotape, and even bubble gum cards!). Through judicious use of assignments, the owner of a popular property with wide appeal can reap substantial financial gain. Interestingly, the only rights that cannot legally be assigned are moral rights, though these rights can be waived.

Violation of copyright is a serious matter. Canadian law allows the owner of the copyright whose work has been infringed to recover from the infringer, in civil court, a sum equal to his damages and all or part of the infringer's profits. In addition, copyright infringement is a criminal offence that carries penalties of fine or imprisonment. If you suspect that someone is infringing your copyright, or if you have received a letter alleging that you may have infringed someone's copyright, you should consult a copyright lawyer immediately.

Finally, you should be aware that the Copyright Office maintains a register of copyrighted works. Anyone can register their work with this office upon submission of a simple form and payment of a nominal sum. Registration with the Copyright Office is by no means mandatory, since as discussed above, copyright rights arise upon creation of the work. However, formal registration has the benefit of providing some legal presumptions, in the event a law suit is brought. These presumptions include that the work is one in which copyright subsists, and, that the registered owner is the owner. Accordingly, it is prudent to register copyright.

Copyright Notice

It is prudent to mark works covered by copyright with the copyright notice. This takes the form of a ©, followed by the year of first publication, followed by the name of the copyright owner.

If you have produced or plan to use a copyrightable work and have any concerns involving the type of issues discussed above, you should contact a lawyer experienced in copyright law to assist you.

James Nenniger is a founding partner of the firm of Piasetzki Nenniger Kvas LLP, Barristers & Solicitors, Patent and Trademark Agents, a firm that restricts its practice to patents, copyrights, trademarks, industrial designs and related causes. Piasetzki Nenniger Kvas LLP is located in Toronto, Canada.