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Today's economy is driven by innovation and the proper protection of innovation is vital.
This chapter of Doing Business in Canada provides an overview of Canada's intellectual property regime in five key areas: copyright, industrial designs, patents, trademarks and the enforcement of IP rights.
1. Copyright
2. Industrial designs
3. Patents
4. Trademarks
5. Enforcement of intellectual property rights
1. Copyright
Canada is a signatory of the Berne Convention and has acceded to the principal multilateral treaties seeking to harmonize copyright protection around the world. Accordingly, foreign businesses wishing to do business in Canada will find many similarities between their domestic copyright laws and those in Canada.
Nevertheless, Canadian copyright laws do possess certain subtleties that should be noted. In particular, for any work to be exploited in Canada, it is important to ensure that the chain-of-title has been properly secured in accordance with Canada's Copyright Act.
a. What can be protected?
Copyright protection extends in Canada to any original literary, dramatic, musical and artistic work. These terms are given broad definition - for instance, computer programs fall within the concept of "literary" works. Copyright can also subsist in other subject matter, such as sound recordings, broadcast signals and performers' performances.
b. How is copyright protection obtained?
In Canada, copyright arises automatically upon the creation of an original work. An original work is one that has not been copied from another source, and that is otherwise produced through the exercise of non-mechanical skill and judgment.
c. What rights are conferred?
Copyright in relation to a work means the exclusive right in Canada to reproduce, publish and perform in public the work, or any substantial part thereof. The broad concept of reproduction includes many individual rights, depending on the type of work. For example, in the case of a dramatic work, the right of reproduction includes the sole right of converting it into a novel or other non-dramatic work.
Authors of original works enjoy certain moral rights that they can assert. They enjoy a right to be associated with the work, where reasonable in the circumstances as its author by name or pseudonym, and the right to remain anonymous. They also enjoy the right of integrity, meaning that the work cannot be modified or used in association with a product, service, cause or institution to the prejudice of the author's reputation.
d. How long does copyright protection last?
Generally, copyright protection lasts in Canada for 50 years following the death of the author, though the term of protection may vary depending on the circumstances of creation and publication.
Moral rights for a work last for the same amount of time as the copyright protection.
e. Who is the author of the work?
The term "author" is not defined under the Copyright Act, but it is understood to mean the person or persons from whom the original --------expression originates. For most works in Canada, an "author" must be an actual person, which is true even where a work is made pursuant to a contract.
The concept of "work made for hire" does not exist here. An employee or contractor will remain the work's author even if ownership of copyright comes to vest in the employer or contracting party.
f. Must copyright be registered?
Registration of copyright is optional in Canada and is not necessary to enforce a work in Canadian courts. However, registration does confer certain presumptive benefits in that it will be deemed evidence of copyright subsistence and ownership, as described in the registration. As well, a defendant will not be permitted to assert a lack of knowledge of copyright subsistence in the case of a registered work, and this increases the monetary remedies available to a plaintiff who establishes infringement.
g. Who first owns the copyright?
Generally, the author of a work is the first owner of copyright. An important exception to this principle applies for works created in the course of an employment relationship - where copyright will be first owned by the employer, unless the parties agree otherwise. Where a work is created by joint authors, the copyright will be owned jointly, as determined by the Copyright Act. In Canada, works created under the direction or control of a government department are subject to Crown copyright owned by the government, and are not works deemed to be in the public domain.
h. How is copyright assigned or licensed?
Copyright can be assigned freely in whole or in part, but no assignment is effective in law unless it is in writing and signed by the copyright owner or its duly authorized agent. The same requirements apply to making an effective exclusive licence. Non-exclusive licences and permissions do not need to be in writing, although documenting them is highly recommended.
Moral rights of an author cannot be assigned but may be waived. Notably, assigning the copyright in a work does not, in itself, necessarily constitute a waiver of the moral rights therein.
i. Fair dealing and other exceptions
Canada's Copyright Act provides that a number of specific activities do not infringe copyright. Most of these activities are very specific and apply only in particular, defined circumstances. In contrast, the concept of "fair dealing" has been defined more broadly as a "user right."
In Canada, it is not an infringement of copyright to engage in fair dealing with a work for the purposes of research, private study, criticism, review, education, parody, satire or news reporting - although certain requirements to credit the work's author and source must be met for some of these purposes. These permitted fair-dealing purposes are exhaustive, and conduct must fall within one of the categories mentioned above (and also be fair) for fair dealing to apply.
j. Are there copyright collectives in Canada?
Canada has a long history of administering copyright protection through copyright collectives, and a well-defined statutory regime governing these collectives is now codified in the Copyright Act. There are several copyright collectives operating in Canada, which address many of the copyright rights conferred under the Copyright Act.
k. How does technology fit into the mix?
Recent amendments now in force prohibit the use or sale of technology that circumvents digital locks - also called technological protection measures, or TPMs. Other amendments now in force put in place a "notice and notice" regime for Internet service providers (ISPs) and search engines that, if followed, should limit their exposure to infringement claims.
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