10. Intellectual Property
The final form of intellectual property protection is copyright. A copyright is a property interest in an original work of authorship (such as literary, musical, artistic, photographic, or film work) fixed in any durable medium of expression. The owner of a copyright has the exclusive right to reproduce, adapt, distribute, perform, and display the work. The durable medium requirement exists because otherwise it would be impossible to prove who is the original author of a work. Ideas, by themselves, cannot be copyrighted.
Like patents and trademarks, Canadian law protects copyrights. Copyright is designed to protect creativity. Copyright extends to any form of creative expression, including digital forms.
Because computer software is a compilation of binary code expressed in 1 and 0, software can be
copyrighted. Similarly, if a group of students were given a camera and asked to photograph the same subject, each student would frame the subject differently, which is an expression of their creativity.
A copyrighted work is automatically protected upon its creation. Unlike patents and trademarks, which must go through an expensive and rigorous application process, authors do not need to send their work to the government for approval. Canada signed the Berne Convention, which is an international copyright treaty. This treaty eliminated the need to write “Copyright” or place a © symbol on the work itself to receive legal protection. Copyrights may be registered with Canadian Intellectual Property Office (CIPO), if the author chooses.
In Canada copyright protection lasts for fifty years after the death of the author. If there is more than one author, the copyright expires fifty years after the death of the last surviving author. After the copyright expires, the work falls into the public domain. The works of Shakespeare and Beethoven are in the public domain and may be freely recorded or modified without permission. The copyright owner may allow the public to view or use a copyrighted work for free or for a fee. This use is contained in a copyright license. A license is essentially permission from the copyright holder to use the copyrighted material, within the terms of the license. When purchasing a book, computer software, or movie for example, the copyright license allows the purchaser to read the book, use the software, and view the movie in private.
The license does not allow the purchaser to show the movie to a broad audience, to modify the music, or to photocopy the book to give away or sell. These rights of reproduction, exhibition, and sale are not part of a license. The purchaser does have the right of first sale. This means that the owner of the physical work can do with it as he or she pleases, including resell the original work.
Copyright infringement occurs when someone uses a copyrighted work without permission or violates the terms of a license. Copyright infringement is common when someone takes someone else’s work and simply repackages it as their own. For example, J. K. Rowling’s Harry Potter series created an international following, and many fans gather online to discuss her books. One website, called the Harry Potter Lexicon, served as an encyclopedia to the Harry Potter world, with reference notes on characters, places, spells, and other details. When the site announced plans to publish the contents of the Lexicon in a book format, J. K. Rowling successfully sued, claiming copyright infringement.
Copyright infringement may also be indirect, such as helping others violate a copyright. Websites such as Napster and Limewire, which existed solely for the purpose of facilitating illegal downloading of music, were copyright infringers even though the websites themselves did not directly violate any copyrights. The music recording industry pursues these cases aggressively.
Copyright law makes a distinction between “fair” and “infringing” use. Fair use includes copying a work for purposes of commentary, criticism, news reporting, teaching, or research. Just because a work is used in a news article or in a classroom, however, does not make its use fair.
Factors to determine fair use of copyrighted materials are specific to the jurisdiction, but these elements generally guide fair use:
- Is it for educational purposes or to make a profit?
- Is the work part of the “core” of the intended protection that copyright provides?
- Is the amount used a small portion or the entire work?
- Does the use of the copyrighted work unfairly impact the owner’s rights or business operation?
With the rise of the internet, problem of copyright infringement has become a major issue. Governments and technology companies struggle to address copyright issues in such a fast paced and ever-changing environment. While some countries have attempted to enact legislation to address copyright infringement on the internet, copyright infringement still exists.