Certain creations are worthy of protection. Copyright law provides owners, such as artists and businesses, the means to prevent others from reaping the benefits of their work. In that regard, the owner of the copyright is given a set of rights, including the right to be the only one that can produce or reproduce the copyrighted work. If someone else is copying or reproducing the work, then there may be copyright infringement.
Copyright will only attach to certain categories of work. These categories are set out by the Copyright Act and include:
- literary works such as books, tables, news articles, or software;
- artistic works such as paintings, drawings, maps, photographs, or sculptures;
- musical works such as songs;
- dramatic works such as movies or plays
It’s important to recognize that copyright does not extend to ideas. Rather, copyright only extends to the expression of ideas, for instance, in one of the material forms listed above.
In the business world, copyright arises in many different forms and some notable examples include:
- advertising material or packaging used to sell goods
- logos and designs printed onto clothing or other merchandise – for instance in Louis Vuitton Malletier S.A. v. Singga Enterprises (Canada) Inc. the Canadian federal court found that certain Louis Vuitton monogram prints were subject to copyright protection and found the defendant counterfeiters to be infringing that copyright
- websites, including design elements, logos, pictures and text
- the source code or assembly language found in computer software / programs
- television shows
- restaurant menus
- news publications
The test for infringement
A successful claim of copyright infringement will generally require the following three elements to be met:
- there must be an original work
- there must be copying
- a substantial portion of the work must have been reproduced
A work does not need to be novel or unique for it to be considered original. To be “original” for the purposes of copyright protection, the only requirement is that the work be composed through the exercise of skill and judgment. Skill must be utilized in producing the work, meaning that some amount of knowledge, experience or ability is involved. In addition, judgment must be utilized, meaning that an opinion was formed or an evaluation process has been utilized in producing the work, for instance picking and choosing from different possible options. Overall, this means that some amount of intellectual effort is required.
In order to make out a case of copyright infringement, the original work must be copied so that new copies of that work have been produced. However, this is not limited to a mechanical copying of the work in the exact material form (i.e., a photocopy of a book to produce another copy of the book). Instead, copying may also occur to a new medium or material form (i.e., book to film). Transforming an artistic work from a two dimensional piece to a three dimensional piece, or vice versa, will also be “copying” and may lead to copyright infringement.
Copying in discrete parts will not always result in copyright infringement. On the other hand, this does not mean that the copying must result in an identical piece of work either. Rather, what is necessary for copyright infringement is that a substantial portion of the work must be reproduced. The analysis is more about the quality of what has been copied rather than the quantity. Generally, the court will look at the originality in the work that warrants protection and determine whether a substantial part of the author’s skill and judgment expressed in the work has been copied.
If the above elements are met, and assuming that no defenses to copyright infringement have been made out, then the owner of the copyright may be entitled to a remedy. The remedies available for copyright infringement include:
- damages / losses that the copyright owner actually suffers due to the infringement including any loss of trade or injury to the copyright owner’s reputation, business, goodwill or trade;
- payment of the profits that the infringer has made as a result of the infringement;
- can injunction preventing the infringer from any further copying;
- an order requiring the infringer to hand over all of the copied work;
- statutory damages (instead of loss related damages) pursuant to the Copyright Act – although certain minimums and maximums are set out by the Copyright Act, ultimately the amount that will be awarded is within the court’s discretion.
If you are facing a copyright issue, contact our Business Real Estate law team.
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.
This article was written by a lawyer formerly with Lindsay Kenney LLP.