The creator of a piece of work owns its copyright for a lifetime and 50 years after they die. When the copyright is in effect, the creator has exclusive rights to use their creations. However, they can allow another person to use their work for free or at a fee.
Copyright falls under the category of intellectual property protected under Canadian intellectual property law. If a person or entity uses the work of another without their consent, they will infringe on their Intellectual property rights and risk facing legal consequences.
If you are designing a public program, there are several things you may need to know about copyright and other intellectual property protections to ensure you do not get into legal trouble.
This guide highlights some important things you should know.
The Different Types of Intellectual Property Protections
There are several types of intellectual property protections under Canadian IP laws.
Understanding how these rights apply can help you avoid violating other people’s or entities’ IP rights and lawsuits.
Below is a brief description of IP protections under Canadian laws.
If a person or an entity makes an innovation, they have exclusive rights to it. But they will need to register their patent as stipulated under Canadian intellectual property law.
Patent protections allow a patent owner to stop others from using, making, or selling inventions or products that resemble the patented innovation for twenty years from the day they file for patent registration.
Inventions are eligible for patent protections if they are new – first in the world, practical and inventive. It must also be a product, a machine, a chemical composition, a process, or an improvement of any of these. Patent infringement occurs if another person other than the inventor uses or sells a patented invention without the patent holder’s consent.
Industrial Design Protections
If an individual or entity produces distinct products, they can register the product design, which gives them exclusive rights to the product’s design. Industrial product protections run for ten years from the date of registration.
Industrial design protections can apply to things like the contour of the body of a car, the design of a car part, and the shape of a new shoe design, among others. If another person or entity creates a product that bears significant semblance to a product whose design is registered, the industrial design owner can file an IP infringement lawsuit.
Trademarks are more like brand identifiers. They can be in symbols, letters, sounds, graphical designs, or a combination of them. Trademarks play a critical role in brand awareness and can significantly affect a brand’s reputation and, consequently, a brand’s competitiveness.
Trademark owners can register their trademarks with the Canadian Intellectual Property Office (CIPO), which allows them exclusive rights to registered trademarks for a renewable term of ten years. If you use a registered trademark when designing a public program and the trademark owner gets wind of it, you could potentially face a trademark infringement lawsuit.
Creators of original works own copyrights to their work by default. However, a person may need to further register their copyrights with CIPO to guarantee better protection under the law.
By registering a copyright to a piece of work, the copyright owner receives a certificate that can act as evidence of copyright ownership when the holder is filing for copyright infringement lawsuits.
Copyright protection usually applies to:
Literary works that include books, pamphlets, and other readable material
Dramatic works such as films, plays, scripts, etc.
Musical works such as composition with or without words
Artistic works include drawings, photography, architectural designs, sculptures, and maps.
How to Minimizing the Chances of IP Infringement Lawsuits When Designing Your Public Program
You may not need to worry about some intellectual property infringements, such as patent or industrial design infringements, as they may not apply to program design. What may have relative significance are trademark and copyright infringements.
Below are the measures you can take to avoid getting into trouble for IP infringements when designing your public program.
Always Assume That a Work of Art Has Copyright Protections
If you intend to use any work, such as pictures, drawings, or sounds, that are not your creation in your program, you are responsible for ensuring that the work is not copyrighted. As a good rule of thumb, always assume that all work on the internet is copyrighted.
Some platforms allow free usage for personal use, but you may have to pay for commercial or public use, so you will want to be sure about the terms. Alternatively, only use original materials to be on the safest side. Using your creations, you can win over 99% of all infringement claims.
Avoid Non-Virgin Projects
When designing a program on behalf of a client, it’s possible to get a project that is half done. For example, the client may have had another person working on the project but did not finish the project. Such situations have a high chance of having a disgruntled designer inclined to file for infringement, especially if they used any of their creations on the project.
If they are successful in their claim, you may be at risk of losing all your input if they file an injunction against you or seek to recover damages for your infringement. The simple solution to eliminate this risk is to avoid working on projects midway. If you do not have the proper history of a project, it’s best to start afresh rather than take the risk of copyright infringement lawsuits.
There are situations where you may need to use copyrighted work. Under such situations, you will need to seek proper permissions to use such work.
The intellectual property owner can deny you permission to use their work. But most will allow you to use their works under some conditions, such as giving proper attribution or paying a fee. As long as you get the consent of the holder of a works IP rights, you can legally use their work on your projects.
You May Need a Lawyer When Facing an Infringement Lawsuit
If you infringe on another individual or entity’s IP rights, they have a right to sue you. If they are successful, you could lose all your effort and pay thousands of dollars in damages.
Before the complainant files a lawsuit, they may send a cease and desist letter. While they may not wield the same power as a court order, cease and desist letters are serious and should never be taken lightly.
In some cases, the complainant’s aim in sending the letter is to have you and them come to an amicable solution to the situation, which may include making arrangements about acquiring proper permissions or, as a humble request asking you to stop infringing on their rights. Failing to comply with the letter’s demands leaves the complainant with filing an infringement lawsuit against you as the only option.
There is no standard format for a cease and desist letter. But it will more likely than not have the phrases cease and desist in its content. If you receive such a letter, contact an IP lawyer for help navigating the legal issue. A lawyer can help in several ways, including negotiating an amicable resolution with the complainant and representing you in court if they file a case against you.
You Need to Protect Your Intellectual Property
Your creations may also need protection from copyright infringement. The most important protections for public program designs are copyright and trademark protections.
While a designer has a copyright to work by default, registering your copyrights gives you an added layer of protection against individuals and entities that may seek to replicate your program. However, some aspects of a program, such as the idea or how it works, cannot be copyrighted, meaning other designers can build creations that do similar work without infringing on your copyright.
Your program’s identifiers, such as name and logo, are your trademarks. By registering them, you reserve their exclusive rights for ten years, but you must renew them every ten years.
The Registration Process
The registration process may be different for different types of intellectual property. But all applications for IP registration are made through CIPO. If you are unsure about your PI’s eligibility for registration, you may want to check out CIPO’s website for more information.
IP rights have different life spans, some renewable while others not. For example, a copyright lasts for the entire length of its owner’s lifetime and an additional 50 years from the date of death. Trademark rights are renewable every ten years and can run for an unlimited period of time if the individual or entity that owns the trademarks pays renewal fees.
While IP registration is straightforward, some aspects of the process can be challenging to the layman, so it is always important to have an IP lawyer help you.