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The question

I am a digital creator (blog posts, YouTube videos, etc.) and I am wondering how can I protect my content and get credit for my own ideas. Let’s say I work for a digital marketing agency and my tasks are to create content for clients. Is the employer or client always the owner of the content?

The first answer

George Cottrelle, Partner, Keel Cottrelle LLP, Toronto: If you are working as an independent contractor, you are the owner of the copyright in your original creative work, assuming you have not assigned your rights under a contract. Copyright registration is preferable, but not mandatory, and you could also protect your IP rights by marking the work with your name or a watermark, etc.

Different considerations apply if your digital media work is created in your employment. Absent an agreement to the contrary, ownership of work that is made in the “course of employment” is presumed to be owned by the employer, under the Copyright Act. It can be a complex question to determine whether work is created in the course of employment, particularly as many employees work 24/7 and away from the employer’s workplace. The legal determination of whether a person is an employee or an independent contractor is based upon an analysis of the substance of the relationship.

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While an employee may not own the copyright in their creative works, as the author they retain “moral rights” in their works, unless waived, protecting the integrity and authorship of their work from prejudicial modification or use.

Employment agreements are now the norm, and in the context of an employee who is a digital creator, would typically contain broad scope intellectual property provisions, confirming the employer is the owner of all works created by the employee relating to their job, whether or not done in the workplace.

If you are an employee and want to own the IP rights in your creative work, you need to have an agreement with your employer, preferably in writing, before you create original digital content.

The second answer

Rebecca Saturley and Divya Subramanian, Stewart McKelvey, Halifax: To determine if you are entitled to credit, you need to understand the nature of your engagement – i.e. are you providing content as an employee or as a consultant. However, typically, content is going to be owned by the agency or the client.

If you created content as an employee, your employment contract or your employer’s policies will likely dictate your ownership rights and if you are entitled to credit. Generally, the employer owns rights to the content created in the course of employment. Canadian courts have not examined this issue in any detail, but U.S. courts have found that business social-media accounts and the associated login information can constitute confidential information. Ultimately the question is whether the account was created with company resources and time or was a personal work product. As well, the contract between your employer and the client may also stipulate that the client owns the content and you have no right to credit.

If you created content as a consultant, your contract should state if you are “assigning your rights” to the marketing agency/client. If you have assigned your rights, the assignee (the agency) is the owner of the content and you are not entitled to any credit, unless stated otherwise. If rights are not assigned, you own the content and any use without credit/consent may be viewed as an “infringement” of your rights.

Review your contract thoroughly to understand the nature of your engagement and confirm if you are “assigning your rights” as a result of the agreement. Also review other provisions such as exclusivity, non-competition and non-disclosure to determine the exact scope of your rights.

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For your blog/YouTube channel, include a copyright notice such as: “name, copyright 20XX, all rights reserved”. If you are handing out work samples, include a “for discussion purposes only – not for distribution” styled marking.

Have a question for our experts? Send an email to NineToFive@globeandmail.com

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