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Last week, we discussed the use of trademarks in branding considerations, in order to protect your brand. This week, we’ll be discussing Copyright, Patents and Industrial Design considerations in order for your to get a better understanding of the tools and rights available to you under Intellectual Property law.
Again, I’d like to preface that I am not a lawyer, and none of the below is intended to be legal counsel, but rather a heads-up. Always consult a lawyer to ensure any particular action is right for you!
Let’s dive in!
Copyright In Canada
As an active YouTuber (or rather, YouTube dweller), I come across lots of videos with copyright claims, issues and infringement. It seems that not many people understand copyright law – and, to be honest, I wouldn’t be surprised! There are a couple of nuances between language used in Canadian copyright law, and those used in the states:
there is no fair use copyright policy in Canada, only fair dealing which is much more restrictive.
The purpose of copyright is to protect an original expression in fixed form. It doesn’t protect an idea – only the original expression. This means that if someone took your concept and said “hey, that’s a cool idea – I bet we can do it better,” they can do so without infringing on copyright law so long as it doesn’t take any distinct element from your original work (if they were to infringe on your idea – it would have to fall under a patent protection).
Where the line blurs is when only small amounts of similarities occur between two different entities. Just because you’re making your own variation of a piece of work, doesn’t necessarily mean that it’s legally sound. If you wanted to sing a cover to the latest pop song, you may be subject to the copyright of the composer, and also copyright to the singer’s original performance (again – INAL – I’m not a lawyer, this may differ from case to case).
How Do I Get A Copyright?
There is no need to apply for a copyright to have rights. Rights arise automatically when you create a piece of copywriteable work, and in Canada, this copyright lasts your entire life +50 years. However, you can (and should) register a copyright if you expect to enforce your rights.
This is due in part to the social sharing environment of the internet – it’s difficult for artists to enforce their copyright on every instance where their work is saved or used. However, if a corporation decides to monetize on an artist’s work without proper copyright, this is infringement that an artist can pursue legal action.
Generally, there are clauses that allow for exceptions to copyright infringement including satire, personal research and news reports (this is known as “fair dealing” in Canada). However, if infringement is incurred, an artist will have rights to their work and may pursue legal action if desired.
It’s important to know exactly who owns the work when it is created, which brings us to the topic of contracts and works for hire:
Who Owns The Copyright?
Generally, if an employee of a company creates a piece of work (or software, for example) – this work belongs to the company. However, if work is contracted out to an independent contractor, the work belongs to the contractor unless clearly stated in the contract. This contract must be agreed upon in written form.
Always read your contracts
If not prepared properly, not having a proper contract can result in some nasty experiences with an independent contractor. If you were to pay a developer to create some software for you, technically they will have ownership over the code unless they expressly waive their rights in their contract with you. In the worst case scenario, you may have to pay them an additional fee in order for them to relinquish the right to sell or otherwise use the work they created for you!
It’s also good to know that moral rights – that is, the right to be associated with one’s work – cannot be transferred, only waived.
Copyrights are constantly being created as people around the world develop creative work. Content and creatives are continually being passed around in good faith, almost tacitly allowed as enforcement seems to be the exception rather than the rule. However, it’s important to know your own rights and the rights of others, especially when it deals with fair dealing. Contact your lawyer, or work with a marketing agency such as ourselves to safeguard your business interests.
Industrial Designs and Patents
Earlier, we mentioned that copyrights will not help you guard against infringement on business ideas. That’s where your patent come into play!
Patents protect the functional aspects of new and useful inventions.
A patent is designed to stimulate research and development, by allowing inventors of original ideas 20 years to enforce a monopoly on their invention. This type of investment typically costs $10,000+ to apply for and implement, but can potentially be the crux of your entire business model.
In some countries, patents can only be completed if the idea is completely novel – this means that if you disclose your ideas to an investor for funding, your patent may be disapproved. Thankfully, Canada has some rules in place that make it so that you may not require absolute novelty, but it may be a good idea to speak with your lawyer to ensure that a proper non-disclosure agreement (NDA) is drafted while searching for funding.
Note that patents only protect the function of your invention, but not the design. For that, you will need an industrial design application.
An industrial design application (roughly $2500-5000 to implement) will product the appearance and look of your property, but not the actual function of the product. Together, patents and industrial designs allow you to safeguard your research investments – copyright will not be able to safeguard your investment, especially if you plan to iterate your product 50 or more times.
Submitting a successful application for a patent may take up to 3-5 years. Contact your lawyer for more information – especially if you plan to patent a product for sales overseas, where you may require additional legal jurisdiction. There are a plethora of other legal IP, including trade secrets and contract requirements. While a lawyer will be able to help ascertain your specific needs, our marketing expertise at Cucumber Marketing will help you generate the business value that will help you sustain and grow your brand. Contact our digital marketing agency! We always have chocolate.