Copyright
· Two basic forms of regime: (1) Copyright; (2) Patent.
· All others are a hybrid.
· Copyright – More open than patent.
What Copyright Gives You
· Definition – “Right to copy”. Reproduction of an existing work. Not reading the book, using the book as a paperweight, etc.
· Ancillary rights – Particular use of item.
· Right to prevent others from:
· Producing or reproducing work
· Performing work in public
· Publishing work
· Engaging in or authorizing above acts
Difference between Patent and Copyright – Expression v. Content
· Copyright about reproducing particular way of expressing ideas.
· Copyright is NOT about protecting substantive idea. This is patents.
· Expression vs. content dichotomy.
· Substance is not protecting by copyright although form is.
Example: Teaching. Can reproduce Gold’s ideas, just can’t put them in the same format.
Fixation v. Corporeality
· Copyright is about expression. However, abstract expression is not protected by copyright. Must be able to point to some physical (“fixed”) form.
· Why must work be fixed? Evidentiary value. Must be able to point to expression and say “this is mine”.
Originality
· “What is worthy copying is prima facie worth protecting” – University of London Press.
· Work must be original.
· Traditional viewpoint – Originality means that it originated with the author. Must tie expression to you and no further.
· Quality of expression doesn’t matter. Irrelevant that expression is bad.
· Break between Canada and US. US has increased originality standard – not enough that idea originated with you, must also have creative sparks.
· Example: Telephone books. They originate with telephone company, but are they original. Fiest – No, not original.
· Lower standard in Canada.
· Why would we have an originality standard? Certain ideas are part of the public domain. Leaves open everything that was produced before the last century for use.
Category of Copyrights – Artistic Works
· “Artistic works” includes paintings, drawings, maps, charts, plans, photographs, sculptures, etc.
· Why maps? Historically, they have had an artistic quality.
· Word “artistic” identifies phrase “artistic work” and used to qualify “artistic craftsmanship”
· Does the use of the word “artistic” in the phrase import any requirements of artistic-ness in the object?
· Conclusion is that an artistic work need not be artistic. If you fit within the “box”, artistic merit is not assessed. Categorized on the basis of type of work, not content.
· Possible debate over term “artistic craftsmanship”. Implies degrees of artisticness.
· Why no standards? Judges don’t want to get involved. Extremely subjective.
Category of Copyrights – Literary Works
· “Literary works” includes tables, computer programs, and compilations of literary works” (s. 2 of the Copyright Act).
· Must literary works be literary? Gold – “What does literary mean?”
· Definition – Literary means pertaining to the use of words rather than to literature. Explains why books are not explicitly included in definition. However, not limited to words.
· Problem with spoken word – not fixed. Therefore, not covered by this definition.
· Are characters developed in a literary work subject to copy right? Possible, but very difficult.
· Explains why we had to wait for Margaret Mitchell to die before writing a sequel to “Gone with the Wind”.
· Again, courts do not want to have make decisions about what is literary and what is not.
Category of Copyrights – Titles
· “Work” includes the title thereof when such title is original and distinctive (s. 2 of the Copyright Act).
· Distinctiveness is a new requirement.
· Two ways to protect it: (1) Title is part and parcel of overall work. To this extent, title is protected by copyright; (2) When title is original and distinctive, as separate work. Must claim that “Gone with the Wind” is a work. Title in and of itself is a work that is separate from book. Difficult to argue.
· What to have a high standard for titles. Very few titles that we would consider worthy of separate protection.
Category of Copyrights – Computer Programs
· “Computer program” means a set of instructions or statements, expressed,
or.
· If you are originator of work, you can copyright it even if it’s identical to an existing work.
· Onus is on you to prove that work is original.
Example – Monkey accidently reproduces complete works of Shakespeare. Can get a copyright on this because it was original.
This is where the debate about how creative a work must be (Fiest, Tele-Radio).
Assignment v. License
· Copyright arises at present day – moment you produce original work. I have a copyright on my notes. Arises automatically.
· There is the opportunity to register their copyright. Can go to Copyright Office and register work. Most people usually wait until they want to sue someone before they register their work.
· Amount of work is subject to copyright is mind-boggling.
· Who makes the decision about who gets a copyright? Decision is initially made by me. I decide whether or not to seek a copyright. No governmental body decides this. A distinguishing feature between copyrights and trademarks/patents.
· Assignment changes ownership of underlying copyright (in whole or in part).
· Translating into another language is a violation of copyright, as long as you are capturing a substantial part of the work.
· Licence involves contractual relations only.
· May be hundreds of copyright claims in a single product. How do we deal with this? (1) Either sell your copyright. Give your rights to someone else.
· Copyrights last for the life of the author + 50 years. Doesn’t necessarily need to be held by the author, though.
· Joint works – When more than one person contributes to the substance of the work. Copyright will then last until the last person dies.
· Consultants own their work unless their contract states otherwise.
