Key Things to Know About Copyright Infringement


Are you the intellectual property owner and believe there has been a copyright infringement of that property but are not sure? You are not alone. It can be difficult to tell exactly what a copyright infringement is and what it is not.

Many people feel that there has been copyright infringement but struggle with whether they need to take legal action. In the absence of hiring a court lawyer to investigate the matter further, it can be a confusing path to protecting your rights. Learning more about copyright infringement and the key things you need to know can clear up the confusion.

What Is Copyright?

According to the Canadian Intellectual Property Office, “Generally, original work is automatically protected by copyright the moment you create it. By registering your copyright, you receive a certificate issued by the Canadian Intellectual Property Office that can be used in court as evidence that you own it. Your copyright exists in Canada during your lifetime and for 50 years following your death.”

Copyright registration in Canada protects:

·                 Literary work, books, plays, novels, poetry, and any written work. The work does not need to be published to be protected.

·                 Music, original scores, lyrics, and other musical compositions.

·                 Art, sculptures, mixed media art, photography, paintings, and other forms of art.

·                 Performances can be copyrighted.

Any intellectual property not provisioned for in trademark protections and patents may be eligible for protection under copyright laws. A “copyright” simply names the work’s creator as the only person legally allowed to copy and distribute the work.

The Key to Copyright Protection

While the law does not explicitly outline that you must register your copyright, you should. International laws like the Berne Convention and domestic laws help protect unregistered copyrights, but it can be hard to prove infringement without registering.

An excellent example of why the Berne Convention is not powerful enough on its own is the requirement in the United States to file a copyright infringement. The US is a member of the Berne Convention. 

The Berne Convention states that copyright protections are afforded to any literary or artistic work when the artist compiles the material. However, in the US, to file an infringement case, you must register your copyright BEFORE filing a claim of infringement.  

Copyright infringement happens all the time in Canada and around the globe. Having undisputed proof granted by the copyright registration that the material is yours and yours alone can help you collect statutory damages. It is essential to register your copyright.

Identifying Copyright Infringement

Copyright infringement is a violation of the artist’s ability to control and own their work. Copyright infringement occurs when someone other than the creator of the material:

·                 Copies and distributes the work as their own and without permission from the creator of the work.  

·                 Performs, shares, or uses parts of the copyrighted material and incorporates it into their material.

In other words, anyone that is using your original unique material as their own is infringing upon your copyright.

However, there are some exceptions to the rules when it comes to infringement. The Canadian Copyright Act of 2012 allows an individual to use copyrighted material in a “mash-up” for online sites like YouTube. Other things you need to know about copyright protections in Canada include:

·                 An author has a right to use a pseudonym, their name, or remain anonymous. Your work does not have to be identified by your name.

·                 Under copyright law, you have the right to preserve the integrity of your copyrighted material. If your work is being used immorally or in a fashion that makes you uncomfortable. You have the right to stop it.

·                 You also have the right of association. For example, if someone reads your poem at a rally for a political party you do not support, you can ban the use of the poem for that purpose. 

International copyright protection is automatic when you file a copyright registration in Canada.

Fair Dealing, Not Fair Use

In Canada, the Canadian Copyright Act of 2012 added a clause for “fair dealing.” The law identifies several entities that may use copyrighted materials without penalty in most cases unless you can prove that the dealing was not fair. Entities that enjoy exemption include:

·                 Researchers and those using the work for private study, review, and criticism.

·                 Satire and parody (the Canadian Supreme Court Identifies “parody” as “the evocation of an existing work while exhibiting noticeable differences and the expression of mockery or humour”).

·                 Reporting news and education

Based on the above, if a critic is critical of your artwork and uses an image of that artwork in a magazine, you may not have recourse. The same is true if a research article includes an excerpt of your literary work. However, that does not mean you cannot take your case to court.

The burden of proof of misconduct in the fair dealing to use your copyrighted material is on you. There are questions to which you will need to apply the facts of your case of infringement in fair dealing:

·                 What is the purpose of the fair dealing? Is it a university using your material to teach or is it a private publisher that took your work and condensed it into a textbook?

·                 What is the character of the fair dealing? Is your poetry or other work being used in a parody that spoils the integrity of the original work through mockery? For example, you wrote a love poem, and someone has included that work and applied it to a performance art piece about murder.

·                 The amount of the fair dealing. A research entity can use your work in their research, but they cannot copy your entire work and distribute it as their own.

What Are Some Examples of Copyright Infringement?

Copyright infringement can be rather broad, from Michael Snow stopping his geese sculpture in the Toronto Eaton Centre from having bows tied around the geese to photographs being used on a commercial website.

Michael Snow won his case by using the “integrity of his work” being violated. He did not want his geese sculpture to be taken less seriously by the addition of bows that went against his artistic vision. 

Trader Corporation v. CarGurus ruled in favor of the plaintiff (Trader Corporation). Trade Corporation’s photographer took pictures of cars that were then used by the defendant (CarGurus) to display on their website without permission. CarGurus was found guilty and had to pay statutory damages.

There have been many music copyright infringement cases that made the headlines like the Marvin Gaye Estate v. Robin Thicke, Pharrell & TI case in 2015 over the song “Blurred Lines.” The settlement, in this case, generated a $7.3 million award.

Judges and juries alike take copyright infringement seriously. Plaintiffs are often awarded hefty judgments for economic losses associated with the infringement. In many cases, economic loss is not the only consideration.

A court case can arise from how copyrighted material is being used as well. There need not be any economic losses; you may simply want someone to stop using your material in a fashion that you find morally corrupt. In such cases of moral misuse, you may still be eligible for statutory damages as well as a cease and desist order.

Hire a Toronto Copyright Lawyer

If you believe that your copyrighted material has been infringed upon, speaking to a lawyer is the best solution. A copyright lawyer has the expertise and experience to ensure your rights are preserved. They can also help you with your copyright registration application.

Fighting copyright infringement on your own can be a complex process. A lawyer can take the helm in your fight to protect your rights.

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