About Lorraine M Fleck
Lorraine is a lawyer and registered trade-mark agent with Hoffer Adler LLP. She works with clients on advertising and marketing, contest, copyright, information technology, packaging and labeling, privacy and trade-mark law issues.
Specialization:
-Advertising, contest and marketing law
- Information technology
- Intellectual property law
- licensing, franchising and distribution
- packaging and labeling
- privacy
Lecture Notes
Canadian Copyright Law: A Primer
Lorraine is going to give us an update on proposed changes in our industry, as well as answer some useful questions pertaining to our field.
What is Copyright?
The exclusive right to reproduce original content and stop others from reproducing that content.
- means that anything created that is original, it is copyrighted
- the laws in Canada and the US can differ dramatically
What does Copyright protect?
- literary, dramatic, musical and artistic work
- audible music
-artistic works
- literary works
- dramatic works
How is Copyright Created?
- The original work is created by a Canadian citizen or member of Berne convention country
- the wrk must come into physical existence
- if the work is published
How is Copyright Created?
- No need to register or mark.
- Registration is a rebuttable assumption of copyright that can be used for litigated purposes.
-Best to register early; Canadian courts are skeptical if registrations obtained shortly before or during a lawsuit.
TIP - you should grab a screenshot of your work and email it back to yourself to assist in proving copyright ownership.
How long does Copyright Exist?
most works- the life of the author + rest of the calendar year in which the author died + 50 years
- joint authors = term last to the end of the 50th year after the last author dies
- unknown author - lesser year of the end of the 50th year or 75 years after the work was made
- photographs- to the end of the 50th year from the making of the initial file
-movies- to the end of the 50th year from the first publication
- sound recording - 50 year
- broadcast - 5o year
Who Owns Copyright?
usually the person who creates the copyright work but there are exceptions
Photographs: the first person who owns the negative of the photo (not always the photographer)
Who Can Use Copyright Materials?
- The owner. Ownership can be transferred, but must be in writing. The ownership transfer agreement is usually called and 'assignment'.
- anybody who has permission (license). The terms for the license dictate what the licensee can do under the license. The fee paid under the license to the copyright owner (licensor) is a royalty.
Be careful with "royalty free' content!
-Each site has its own terms governing content use.
- Many sites only allow non-commercial use.
- Commercial licenses are often restricted e.g. number of copies, territory.
- read license terms carefully.
What is Infringement?
- The making of an unauthorized copy
- there must be a substantial portion of the material copied.
- but there is no hard and fast rule.
The two types of Infringement
1) Primary - A copy made without permission
2) Secondary - The sale, rental or distribution, or display or possession of an unauthorized copy.
Exceptions to Copyright Infringement
-Under certain circumstances
Major category is 'fair dealing':
1) research/ private study
2) criticism/review
3) News reporting
While not limited to private or non-commercial contexts, not very useful for advertisers. No advertising specific exception.
- parody is NOT currently an exception in Canada.
Factors to assess fair dealing
1) purpose
2) Character
3) Amount
4) Nature
5) Available alternatives
6) Effect
What are Moral Rights?
The author's right to:
1) retain the integrity of the work;
2) Not have their work distorted
3) have their name associated or not associated with the work
- Activities must be shown to be to the detriment of author's honour/reputation
- Cannot be transferred, but can be waived.
ex of moral rights - Artist michael snow suing Eaton's centre over ribbons being placed on his geese.
Bill c-11 Highlights
- The copyright modernization act is the fourth attempt at reform since 2005
Bill c-11: Mash-ups
- infringement exception for non-commercial user-generated content created using copyright material
- applies to non-commercial use only
- could affect the market for the works used to create the mash-up
Bill c-11 - Statutory Damages
- would cap statutory damages against individuals who infringe copyright for non-commercial purposes to $100 - $5,000 for all works in the lawsuit.
- currently, statutory damages are $200 - $20,000 per copy
- may result in less deterrence for large scale infringers.
Bill c-11 - Highlights: Parody and Satire
- Most relevant for web design and advertising.
- Parody: The original work is ridiculed
- satire: use of the original work to mock someone else
- Parody and satire may still infringe trade-marks, result in defamation
- Use of content must be "fair": do not use too much, and avoid impacting existing communities
Questions
Q: Can you use a copyrighted image if the image is no longer recognizable?
A: Depends. No if the alteration impacts the ability of the copyright owner to exploit the work.
Q: What happens if you are accused of using copyrighted material?
A: Usually the plaintiff's lawyer will send a demand letter. Remedies for infringement include:
1. An injunction
2. Damages and profits
3. Interest, punitive and/or exemplary damages
A copyright dispute can be very expensive money and time wise, with each party's legal fees easily exceeding $100,000 or more, and a lawsuit in Federal Court currently taking two (2) years to reach judgement. Proceedings in Ontario court can take a very long time.
Q: When blogging about others work is it ok to post their work?
A: Ok if doing for criticism/review or news reporting provided you credit the author
Q: How to support your own work if you post it online?
A: - disable right clicks
- copyright notice
- register copyright in commercially important works
"An ounce of prevention is better than a pound of cure".
Q: What are the ownership rules of social media sites?
A:- you own your own content on twitter and wordpress
- facebook has a license to all your content until your account is deleted, unless any content is shared with friends
- Pinterest has a perpetual worldwide license to you content
"copyright 2012 Christina Cowen all rights reserved, do no use without permission."
Contacting Lorraine Fleck
E‐mail: lfleck@hofferadler.com
Website: www.hofferadler.com
Blog: www.ipaddressblog.com
Twitter: @ HofferAdler @lorrainefleck
