Why You Should Care About Copyright

Copyright is a type of intellectual property that applies to literary works (deemed to include software), artistic works (e.g., graphic designs and web designs), musical works and dramatic works. Copyright protects the form of expression rather than the idea or content expressed.  For example, copyright protects the words of a novel (the expression), but not the plot or themes (the idea or content).

Businesses are routinely involved in the creation of  works subject to copyright, but often fail to consider ownership of copyright.  Unless there is an agreement to the contrary: a)  if an employee creates a work subject to copyright in the normal course of his employment, the copyright belongs to the employer; and b) if a contractor creates a work subject to copyright in the performance of a contract, the contractor owns the copyright and the customer has an implied licence to use the work for the purpose for which it was created.

The presumption of employer ownership in the employer-employee situation, makes sense to most people.  However, the presumption of contractor ownership in the contractor-customer situation  may come as an unpleasant surprise to the customer.

For example, if a business retains a graphic design firm to create a brochure for a run of 1,000 and their agreement says nothing about ownership of copyright, then the design firm owns copyright in the brochure and the business has an implied licence (that is, permission to do something implied by operation of law), to a run of 1,000.  If the  business were to later have 10,000 copies printed without the design firm’s permission, the design firm would be legally entitled to compensation for copyright infringement.

Another example is where a business retains a programmer to create some custom enterprise software for use by the business.  Again, absent an agreement to the contrary, the programmer owns copyright in the software and the business has an implied licence to use if for the purpose for which it was created (that is, in its business operations).  This means that, although the business paid the development costs for the software, the programmer, not the business, is entitled to sell copies of the software to others.

Thus, in a customer-contractor situation that may give rise to a work subject to copyright, it is important for the parties to have a clear and documented understanding about who will own the copyright.  It is usually possible to reach agreement on this issue as either party may be willing to give up ownership of copyright for an adjustment in price or other consideration (e.g., the right to make more copies of a brochure at a low or no charge).

Border Enforcement of IP Rights by Customs Officers

Businesses can obtain assistance from the United States government to prevent the importation of counterfeit goods into the United States (19 CFR 133).  On March 1, 2013 first reading was given to a proposed Canadian law (Bill C-56) which would give Canadian businesses a similar right to obtain assistance from the Canadian government to prevent importation of counterfeit goods into Canada.  The proposed law sets forth a procedure for Canadian businesses to follow and protects government officials from liability for steps that they may take in intercepting shipments and holding them for a period of time.  This law is long overdue and I hope for speedy passage.

World Wide Web – When Do You Cross the line?

World Wide Web – When Do You Cross the line?

In this article we will discuss two recent cases that may of interest to businesses and individuals regarding the World Wide Web.  There is a great deal of information on the web that is useful to business.  Recently the Supreme Court of British Columbia was asked to consider what use companies can make of information taken from competitor’s websites, in the case Century 21 Canada Limited Partnership et al v. Zoocasa Inc.  Zoocasa was using information taken from the Century 21 website.  The lawyer for Zoocasa argued that information made available on the internet must be available for use by everyone through indexing, linking and otherwise, without contractual restrictions.  It was suggested that this was required for the proper functioning of the web.  The lawyer for Century 21 argued that Zoocasa had breached the contractual terms accepted by users of the Century 21 website.  Mr. Justice Punnett decided that although the manner of contracting had changed, traditional contract law still applied to the web.  The Century 21 website had Terms of Use associated with the website; Zoocasa had actual notice of those Terms of Use, had accepted them and were bound by them.   In addition, Century 21 had copyright in the pictures and articles on the website.  In taking the pictures and articles, Zoocasa had infringed the copyright of Century 21.  The lesson to be taken from this case for website owners, is to establish Terms of Use and ensure that users of your website have notice of those Terms of Use and accept them to create an enforceable contract.

In this world of GOOGLE, FACEBOOK, and LINKEDIN, there is also a great deal of information on the web regarding individuals.  In most cases, it is completely proper to access this information.  For example, I had to examine a witness under oath a few months ago and availed myself of information that was on his FACEBOOK page to assist me.  Recently the Ontario Court of Appeal was asked to consider where the line should be drawn with respect to intrusions into one’s privacy in the case of Jones v. Tsige.  Winnie Tsige was the common law partner of the former husband of Sandra Jones.  Ms Tsige was also a bank employee.  Ms. Tsige used her position at the bank to repeatedly access online records that are not accessible to members of the public and inspect Sandra Jones private banking records.  Presumably, this information was being passed along to Mr. Jones for use in a dispute with Mrs. Jones.  The Court found this intrusion to have crossed a line.  This is an unusual situation of an abuse of bank databases by a bank employee and may not have had much application to the rest of us, were it not for the fact that the Ontario Court of Appeal had to create a new cause of action of intrusion of privacy to give Sandra Jones a remedy.  That remedy is now a precedent.  The boundaries of the remedy will be set by future cases.  It will likely be relied upon by celebrities against overly aggressive paparazzi.  Should you be so unfortunate as to experience some intrusion into your privacy that is excessive, unwarranted and deserving of sanction, you should speak to your lawyer.