Lecture 2 Notes

COPYRIGHT
-

The fixed manifestation of the original expression of an idea

by an individual.
Work a foundational concept.
o Types of work:
Literary
Software, Complitation, Business letters,
brochures, game tests, songs (lyrics only),
Books/Plays/poems
Dramatic
Choreography, Mime, Scenic Arrangement,
Cinematic, Fixed Acting Form, Recitation
Musical
Music (notes only or music and notes)
Artistic
Maps, Charts, Architectural Engineering plans
and projects, photographcs, engravings,
sculputres
o Other subject matter: these are also copyrightable :
performers performances, broadcaster, makers of sound
recordings
Two types of work: Primary, Derivative
o Primary: Produce, Perform, Publish
o Derivative: Translate, Convert from a dramatic work,
convert by the way of performance, make sound recording
film, cinematographic works, and public exhibit.
Moral Rights
o What are they?
Paternity
Integrity
Assocation
Disclosure
Recocation
Rome Convention
o What do they apply?
Works
Performers, Performances
o Examples
The Artist who put up birds in eaton centre,
Game Genie: Developer claimed changing of his
game has a determental effect on the game play, .

The
-

His honour and reputation as a game creator are

prejudiced by the use of game Genie.
o Neighbouring Rights
Communication signals (broadcasting)
To fix
To Reproduce
Authorize others to retransmit
Makers of Sound Recordings (s.18)
Publish
Reproduce
Rent
DURATION OF RIGHTS
o Economic: Life + 50 years or
50 years from creation
o Neighbouring:
50 years from fixation/broadcast
o Moral Rights
Applicable economic term
Performers performances term
COPYRIGHT LOGO
Copyright Act does no require any filing
Techinally, it exists upon creation
Regristration could be evidentiary but not substantive
Universal copyright convetion, art III encourages with the
owners name and year of first publication

When it comes to EMPLOYEES:

- The employer owns copyright in an employees work product if
that product was produced in the course of the employees
employment
- However moral rights say with the employee
When it comes to FREELANCERS:
- Absence of an agreement, the freelancer owns the copyright in
the work, and also has the moral rights
When it comes to TAKING SOMEONES PHOTO
- General Rule: Get a release unless the person photographed
o Is in a crowd
o Is not readily identifiable
o Is a celebrity (includes politicans)
o Is part of a news story
When it comes to ORPAHN WORKS
Infringement: The Basics

 Basic Requirements = copying

Substantial Similarity = copying
Subconscious copying Access/ similarity
Quoting the bulk or all of the work
Copying the expression (work) not idea
Text? Music? Sets? Software?
Infringement: Two Terms:
Primary: s.27(1)
Someone other than the owner exercised the rights in s. 3
Secondary: s. 27(2)
Someone who did not make the original infringing copy sells,
rents, distributes, etc. it
Think about peer to peer downloading..
But.. should all unauthorized copying be infringement?
The balance between USER RIGHTS and OWNER RIGHTS:
- These are rights, not exceptions to copyright
o Fair dealing
See s. 29-29.2
Research, private study, education, parody, satire
Criticism or Review
News Reporting
o User generated content (aka mash-ups)
o Personal use
o Record for later use
o Back up copies
o Museum/libraries
- Test for Fair Dealing
o 6 Factors
The purpose of the dealing
The character of the dealing
The amount of the dealing
Alternatives to the dealing
The nature of the work
The affect of the dealing on the work

See. 29.2:

It is not an infringement of copyright for an individual to use an

existing work or other subject-matter or copy of one, which has been
published or otherwise made available to the public, in the creation of
a new work or other subject-matter in which copyright subsists and for
the individual or, with the individuals authorization, a member of
their household to use the new work or other subject-matter or to
authorize an intermediary to disseminate it, if
(a) the use of, or the authorization to disseminate,
the new work or other subject-matter is done solely for noncommercial purposes;
(b) the source and, if given in the source, the name
of the author, performer, maker or broadcaster of the existing work
or other subject-matter or copy of it are mentioned, if it is reasonable
in the circumstances to do so;
(c) the individual had reasonable grounds to believe
that the existing work or other subject-matter or copy of it, as the case
may be, was not infringing copyright; and
(d) the use of, or the authorization to disseminate,
the new work or other subject-matter does not have a substantial
adverse effect, financial or otherwise, on the exploitation or potential
exploitation of the existing work or other subject-matter or copy of it
or on an existing or potential market for it, including that the new
work or other subject-matter is not a substitute for the existing one.

s. 29.22:It is not an infringement of copyright for an individual

to reproduce a work or other subject -matter or any substantial
part of a work or other subject-matter if
(a)thecopyoftheworkorothersubjectmatterfromwhichthereproductionismadeisnotaninfringingcopy;
(b) the individual legally obtained the copy of the
work or other subject-matter from which the reproduction is made,
other than by borrowing it or renting it, and owns or is authorized to
use the medium or device on which it is reproduced;
(c) the individual, in order to make the reproduction,
did not circumvent, as defined in section 41, a technological protection
measure, as defined in that section, or cause one to be circumvented;

(d) the individual does not give the reproduction

away; and
(e) the reproduction is used only for the individuals
private purposes.

S. 29.23
It is not an infringement of copyright for an individual to fix a
communication signal, to reproduce a work or sound recording that is
being broadcast or to fix or reproduce a performers performance that
is being broadcast, in order to record a program for the purpose of
listening to or viewing it later, if
(a) the individual receives the program legally;
(b) the individual, in order to record the program, did
not circumvent, as defined in section 41, a technological protection
measure, as defined in that section, or cause one to be circumvented;
(c) the individual makes no more than one recording
of the program;
(d) the individual keeps the recording no longer than
is reasonably necessary in order to listen to or view the program at a
more convenient time;
(e) the individual does not give the recording away;
and
(f) the recording is used only for the individuals private
purposes
BUT...does not apply if the individual receives the work, performers
performance or sound recording under an ondemandservice

See s. 29.24:
Itisnotaninfringementofcopyrightinaworkorothersubject- matter for
a person who owns or has a licence to use a copy of the work or
subject-matter (in this section referred to as the source copy) to
reproduce the source copy if
(a) the person does so solely for backup purposes in case
the source copy is lost, damaged or otherwise rendered unusable;

(b) the source copy is not an infringing copy;

(c) the person, in order to make the reproduction, did not
circumvent, as defined in section 41, a technological protection
measure, as defined in that section, or cause one to be circumvented;
and
(d) the person does not give any of the reproductions away.
So applies to software, music, video, etc. BUT...once again note
the effect of TPM (see (c) above)
TPM Technological Protection Measures: (DRM) ( Digital rights
management)
- Issues Law Protects the fences not the property behind the
fences
- TPM cannot distinguish between lawful and unlawful users
The DONTs of TPMs
See s. 41.1-41.21 Dont:
descramble a scrambled work, decrypt an encrypted work or avoid,
bypass, remove, deactivate or impair
offer services to circumvent
manufacture, import, distribute, sell, rent anything to circumvent
PERSONALITY RIGHTS
Right of Publicity The right to control the commercial exploitation of
ones identity. It provides a tool to prevent people from benefiting from
the unauthorized use of anothers image, likeness or identity
Appropriation of personality (privacy)
Traking, conversion or usurpation of the celebrity, identity for the
benefit of the usurper
Appropriation of one name or likeness for anothers benefit
In some jurisdiction the law applies post-mortem

TRADEMARK
A trade-mark (TM) is any mark that is adopted and used to distinguish
the source of a particular food and/or service in the marketplace from
the wares and/or services from other sources.
TMs denote either source or quality
TMs protect goodwill and reputation
Types of Marks
- Common Law
o Just USE it
Rogers
o You defend it via the tort of passing off
Property and Civil Rights ergo provincial, provincial
superior courts jurisdiction restricted to their provice
Statutory version of passing off found in s.7
- Registered
o Certification, guise, proposed
- Statutes
o Agriculture, Olympic
- Official marks
- Geographic indicators
Registered TMs
- Direct evidence of ownership

No need to prove ownership

National in force
CIPO can refuse registration of confusingly similar marks
Owner may initiate infringement action in superior or Federal
Court
After 5 years cant be challenged on basis some one else used it
prior in time
Claim priority in registration in foreign countries

Registered TMs: Current Statutory Definition

- A mark that is used by a person for the purpose of distinguishing
or so as to distinguish wares or services manufactured, sold,
leased, hired or performed by him from those manufactures,
sold, leased, hired or performed by others. COMMON LAW
MARK
o A certification mark
o A distinguishing guise, or
o A proposed trade-mark
- Registered TMs: Pending Statutory Definition

Common Law Problem

Common law mark must prove

o Mark/Reputation
o Geographic compass
Registered mark is valid throughout Canada, and
enforceable through the Federal Court and provincial
superior courts.

Domain
Names Vs.
TMs
Trade-Marks
Jurisdiction based
Concurrent Use by different unlicensed users prohibited
Confers statutory rights
Distinctiveness crucial
Domain Names
Trans-jurisdictional
Concurrent uses of similar domain names permissible
Confers contractual rights
Generic or descriptive names desirous