Lorraine M. Fleck

Lorraine M. Fleck
Lawyer, Tade-mark Agent
Hoffer Adler LLP
LinkedIn Profile

Email: lfleck@hofferadler.com
Website: www.hofferadler.com
Blog: www.ipaddressblog.com
Twitter: @HofferAdler @lorrainefleck



Lorraine assists clients in diverse industries with advertising and marketing, contest, copyright, information technology, licensing and distribution, packaging and labeling, privacy and trade-mark law issues.

As an active legal writer, she publishes the IP Address blog (ipaddressblog.com), her personal blog on Canadian IP and related news which was selected by Osgoode Hall Law School's IP Osgoode blog as a Pick of the Week. Lorraine is also a regular contributor the Canadian Bar Association's quarterly IP case law summaries.

**** NOTE THE  INFORMATION PROVIDED SHOULD NOT BE CONSIDERED LEGAL ADVICE ****

The following information is specific to current Canadian Copyright legislation.

What is Copyright?
The exclusive right to reproduce original content and stop others from reproducing that content.

• Means that you must get others permission to use their content unless your activity falls within an exception to infringement.
• Applies to the internet
• The law in Canada and the US can differ dramatically

What does Copyright Protect?

ORIGINAL literary, dramatic, musical and artistic works

How is Copyright Created?

• The original work is created by a Canadian citizen or citizen of a Bern Convention country.
• The work must come into physical existence; copyright does not exist in ideas.
• If the work is published, the work is published in Canada or a Bern Convention country.
• No need to register or mark (e.g. ©2012, Lorraine M. Fleck)
• Registration is a rebuttable assumption of copyright that can be useful for litigation purposes
• Best to register early; Canadian courts are skeptical of registrations obtained shortly before or during a lawsuit

How long does Copyright exist?

Depending on the type of work and whether there are joint authors

• Most works: life of the author + rest of the calendar year in which the author died + 50 years
• Joint Authors: Term lasts to the end of the 50th year of the last author death
• Unknown Author: Lesser of the end of the 50th year after publication or 75 years after the work was made
• Photographs: To the end of the
• Movies: To the end of the 50th year from the first publication and if not published, 50 years from the making of the movie
• Sound Recordings: 50 years from when first recorded
• Broadcasters: 50 years from communication

Who owns the 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)
• Employees: Employers are the first owner of the works created for the employer by the employee.
• The owner: Ownership can be transferred, but must be in writing. The ownership transfer agreement usually is called an assignment.
• Anyone who has permission ("liscense"): The terms of 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.

What is Copyright infringement?

• The making of an unauthorized copy
• There must be a substantial portion of the material copied.
• No hard and fast rules as to what is substantial
• Test is quality, not quantity. Does the copy take enough of the work so to convey at least a portion of the value of the work?

There are two types of infringement:

Primary: A copy is made without permission

Secondary: The sale, rental or distribution or display or possession for that purpose, of an unauthorized copy provided the person in possession of the copy knows it was an infringing copy.

Exceptions

Fair dealing (research/private study, criticism/review, news reporting)

Note, parody is NOT currently an exception in Canada

The factors used to assess what is fair in the context of fair dealing:

1. Purpose
2. Character
3. Amount
4. Nature (of the work)
5. Available alternatives
6. Effect (of the dealing of the work)

What are Moral Rights?

The authors right to:

• Retain the integrity of the work
• Not have his/hers work distorted
• Have his/her name associate or not associated with the work
• Activities must be shown to be the detriment of the authors honour/reputation
• Cannot be transferred, but can be waived
• Term is the same as copyright in the work