A few columns ago, I talked about the importance of naming your business and, in particular, the need to protect your brand by registering a trademark for the names or logos under which you identify your business to the public. But it still amazes me how many telephone calls I get from small-business owners who want to patent or copyright their company name, rather than trademark it.
Even the news media gets it wrong half the time, for instance when a reporter a few years ago wrote about the “copyright” case between Apple Computer and The Beatles over the use of the “Apple” name in the iTunes store. Wrong! It was a trademark dispute over the Apple name, not a copyright infringement case.
So it struck me that it might be helpful to distinguish the different types of intellectual property.
We all know what a trademark is by now. And in a few weeks I’ll discuss how a patent is an exclusive monopoly, given to an inventor for 20 years to commercially exploit an original invention.
For now let’s discuss copyright. It’s not just for novelists and musicians. If you’re in the restaurant business or the fitness business, or you use marketing companies to design artwork, ad copy and websites, you may be surprised to learn you may have copyright issues.
Copyright means, quite simply, the right to copy. Copyright provides protection for literary, artistic, dramatic, or musical works including computer programs, as well as performance, sound recording and communication signals. Only the owner of copyright has the right to produce or reproduce a work or allow someone else to do that. Copyright is the right granted to the owner of a work to print, copy, or distribute a work or make a “derivative version” of the work, for example a film based on comic book, a TV show based on a novel, and so on. More important, copyright gives its owner the right to stop others from copying that work or a portion of it.
A copyright is simply the right to copy someone else's original work in a fixed form, such as this column. It applies to the following:
1. Literary works, such as books, stories, poetry, text, as well as computer programs.
2. Dramatic works, such as film, DVDs, theatrical plays, and screenplays.
3. Musical works such as songs, with and without lyrics.
4. Artistic works, such as paintings, drawings, photographs, sculptures, and architectural works — even things like maps, blueprints, compilations and mortgage tables.
The owner of copyright, who is not necessarily the original creator, has the right to prevent another party from making copies of that work. At its most basic, that's all it is. Of course, it’s more complicated than that, which is why there are numerous textbooks, cases, case comments and legal articles on the topic. Some lawyers do this for a living too.
The statutory framework for copyright in Canada is the Copyright Act, R.S.C. 1985, c.C-42, as amended. There have been a number of amendments to Canada’s Copyright Act since it was first enacted in 1921: many of the amendments extended the term of the copyright in certain circumstances. Copyright is once again being reviewed in Canada.
Copyright in Canada for a literary work currently extends for 50 years past the death of the author. No royalties or other compensation is payable to the heirs of Shakespeare, Homer, or Jane Austin, even though their works are still very much in print. That is because the authors have been dead for more than 50 years and their works have fallen into the “public domain.” On the other hand, Douglas Adams’ royalties over his Hitchhiker’s Guide to the Galaxy books continue to be paid to his heirs because he has only been dead for a decade.
With the advent of technology, copyright extends to other matters such as:
1. Sound recordings such as LPs, CDs, VHS, DVDs and BlueRay.
2. Communication signals (the electronic signals that are transmitted by broadcasters).
3. Performances by actors, singers, dancers, musicians, and so on.
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