Who owns your art?

David Wotherspoondwotherspoon@fasken.com

23 November 2009

Disclaimer

The information contained in this presentation is of a general nature. It is not legal advice and should not be construed or in any way considered to be legal advice.

Law Society of British Columbia

Law Society domain nameslawsociety.bc.calsbc.org

Defendant’s domain nameslawsocietyofbc.calsbc.ca

lawsocietyofbc.ca and lsbc.ca?

lawsocietyofbc.ca and lsbc.ca?

IP Strategy

Audit: What do you own? What can you own? What can’t you own?Protect: How can you protect what you create?Use: How can you create value from what you create?

What is IP?

Wotherspoon definitionIP is the stuff someone can take from you without taking anything from you

Copyright: a very brief history

What is IP?“intellectual”

Rewards intellectual efforts/achievements:

Writer who writes a book;Inventor who discovers a new medicine.

What is IP?“property”

Gives a bundle of rights to the owner:Usually has commercial value.

What is IP? Four pillars of intellectual property

PatentsTrade-secretsTrade-marksCopyrights

Other forms of intellectual propertyIndustrial designPlant breeders rightsIntegrated circuit topographyPersonality rights

CopyrightApplies to original “works”, typically literary, dramatic, musical and artistic worksPurely statutory rightsRights arise on creationRights belong to the authorNo need to registerRights generally last for the life of the author plus 50 years

Patents

Applies to inventions that are new, non-obvious and usefulPurely statutory rightsRights arise on registrationRights will be lost by publication without registrationRights belong to the inventorRights last for 20 years

Trade-secrets

Must have business value, be able to be kept secret and be subject to efforts to keep it secretCommon law only; no statutory protectionRights will last as long as the information remains secret

Trade-marks

Applies to names and designs indicating the source of wares or servicesRights exist at common law and through statuteRights exist through use but are significantly enhanced through registrationRights can be perpetual

Copyright

Copy right

Right copy

Right to copy

The Purpose of Copyright“…the purpose of copyright law (is) to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a fair reward for the creator.”

Chief Justice McLachlin

Basic Concepts

Copyright protects the expression of ideas; It does not protect the ideas themselvesCopyright gives the author of a work the exclusive right to copy and exploit the workMoral rights give the author of a work the exclusive right to be associated with the work and to the integrity of the work

The Epicenter3. (1) Copyright in works – For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in public, or, if the work is unpublished, to publish the work or any substantial part thereof…

CopyrightOriginality and fixation, the essential prerequisites to copyright protectionOriginality: the exercise of skill and diligence, but not necessarily creativityFixation: must be expressed to some extent at least in some material formFour-year-old Marla Olmstead's abstract

paintings attracted a wide range of collectors and art dealers.

http://strategis.ic.gc.ca/sc_mrksv/cipo/cp/cp_main-e.html

Copyright

Duration of CopyrightGenerally, copyright lasts for the life of the author + 50 years;Copyright in a jointly authored work lasts until 50 years after the last author dies;Copyright in anonymous and pseudonymous works lasts for the shorter of 50 years from first publication or 75 years from the making of the work.

Ownership of CopyrightFirst ownership may be changed by simple agreement

ContractFreelancers often retain their copyright; contract only grants an implied license

Business photographerSoftware developerArchitect

Owners’ rightsCompilations

Compilations may be protected by copyright, if they involve some “selection or arrangement” which is not obviousCompilers of information or anthologies may take the idea of making a compilation from previous sourcesHowever, taking a substantial part of an earlier work will still constitute copyright infringement

Owners’ rightsInfringement: criteria

Infringement involves copying a “substantial part” of a workDealing with infringing copies of a work also constitutes copyright infringement, if the dealer knows or should have known that there was copyright in the work

Users’ Rights“Fair dealing”

The concept of “fair dealing” relates to when you can copy and not breach copyright

Users’ RightsWhat is “fair”?

What is the nature of the work copied?What was the purpose the dealing?What is the character of the dealing?How much has been dealt with, compared with the source work as a whole?What alternatives to copying were available?What was the effect of dealing on the work?

Fair Dealing Exceptions“Categories

Research or private study (s.29)Criticism or review (s.29.1)

OthersWorks derived from public art (s.32.2(1)(b))

Users’ RightsResearch or private study

“Research” means investigating or closely studying a subject;“Study” involves applying oneself to acquire knowledge or learning, or examining or closely studying an object; Research may be for profit, but that is a factor to be considered as a matter of fairness

Users’ RightsCriticism or review

Involves analyzing and judging merit or quality, or surveying past events of factsThe source must be mentioned

Moral Rights

Moral Rights

IntroductionA work is an extension of the author;The author should therefore have the right to sue those who present the work differently from the way the author originally intended, e.g.

Christmas decoration on the Canada geese sculpture of Michael Snow in the Eaton Centre in Toronto;Adding obscene texts to a painting.

Moral rights are not attached to ownership of copyright.

Moral RightsCategories

Right of AttributionThe right to be associated with the work by name or under a pseudonym, “where reasonable in the circumstances”.

Right of IntegrityThe right to stop a work from being “distorted, mutilated or otherwise modified”, if this prejudices the author’s honour or reputation.

Right of AssociationThe right to control the use of a work “in association with a product, service, cause or institution”, e.g. the use of a work in a T.V. commercial for cigarettes.

Moral RightsDuration

Moral rights in respect of a work subsist for the same term as the copyright in the work.

WaiverNo assignment of moral rights possible;However, moral rights may be wholly or partly waived;Be aware that moral rights may be implicitly waived, e.g. an architect cannot object to the inherent use of a building, even if this implies some changes to its appearance.