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Information on this page was gleaned from: Canadian Copyright Law, 3/e
by Lesley Harris
Mcgraw-Hill Ryerson, Ltd.;
ISBN: 0075603691

The Six Areas of Intellectual Property

Items which have a copyright or a patent, or any other type of protection do not need to have a mark to indicate the protection. Protection is implied upon creation, as long as the work meets the criteria for originality.

Copyright Act of 1924, updated in 1988

The Copyright Act of Canada deals with all forms of Intellectual Property: patents, trade marks, industrial designs, integrated circuit topographies & copyrights.

Intellectual Property

Patents

Protects the inventor for 20 years from the application of a patent. Patents apply by country. The product must be:

NEW  |  USEFUL  |  UN-OBVIOUS

Trade Marks

A trade mark applies to a symbol, logo or design. Protection is granted by its use. The owner of a mark can lose protection if they do not use it. This type of protection is limited to the geographical area in which it is used. So if you do not register it, but you do use it, you are protected only in the regions in which it is used. This is an “off the books” protection, though it is legitimate.

If a trade mark is registered, protection is granted across Canada.

An ™ mark is not necessary for protection, only to inform others that protection exists. Registration is necessary for each country.

Copyright

  • Only protects the embodiment of the idea, not the idea itself.
  • Protection is automatic upon creation.
  • Protection persists for 50 years after the end of the year of the creator’s death.
  • The material must be original to be protected.
    • It must originate with the author.
    • Not a copy of another.
    • Fruit of creative effort.
    • The author must use creativity, imagination, experience and effort.
  • Must be fixated
    • Must take a physical form.
    • Dance or music must be noted.
    • Performance art is not protected if it is not written down in some way.
  • Nationality & place of publication
    • Canada grants protection to all creators who are in Canada legally.
  • If the employee creates work, the company owns the copyright, unless otherwise agreed upon.
  • If the individual is working as a “Free Lancer”, the creator owns the copyright
If you place the © symbol on your work, it must be as follows:
© owner-name, year of publication

If there are significant changes to the work at a later date, the year of the changes must be used.

About Registration

Canadian Intellectual Property Office (CIPO) is the registering body. This body does not verify originality, you must hire lawyers to do so.

Fees for protection are:
$165. for registration & a certificate
$130 for speedy service

Poor Man’s Copyright

The “Poor Man’s Copyright” protects the creator by establishing the earliest date that the work was created. Upon completion of the work, a copy is placed in an envelope and mailed to the creator, or some other reliable person via registered mail. It is crucial that the envelope is not opened. When registered mail is sent by Canada Post, it is date stamped.

If ever a conflict arises as to the creation date of the work, the envelope could be opened before a judge or some authorized person. This would prove that the work had to have been created before the date on the envelope.

The date is the only thing that is proven by this method. The “uniqueness” of the work is not verified.

Moral Rights

Moral Rights exist to protect the reputation of the creator. They cannot be transferred, though they can be “waived”. Moral Rights are the innate (or built-in) rights of the author which give him or her the authority to object to a certain use of their work for whatever reason.

This is best illustrated with an example:

An artist creates a painting which is displayed in public.

  • The gallery owner hangs the painting next to a piece the artist deems offensive due to its theme.
  • The gallery owner puts a cheap, ugly frame on his painting.
  • The gallery owner placed a sticker on the frame with his gallery’s logo on it.
The artist can object on the grounds that any of these actions diminishes the quality of his work.

Remedies

If you find that your copyright has been violated, you do have recourse under the law to rectify the situation. Canadian Civil Law provides for:

  • Injunction: Stops the unauthorized use of your work.
  • Damages: Grants you compensation for the violation of your copyright.
  • Accounts of profits: Grants you a part or all of the profits generated by the unauthorized use of your work.
  • Returning copies: The hard copies of your work are returned to you.