Quick Tips for Business Managers to Protect Your Intellectual Property ("IP")

Posted on January 27, 2012 by Josh MacFadden

Know what you have.   Know what  your business owns and what is licensed into the organization.  Consider whether a client deliverable, an internal document or module of software (or a portions thereof) are developed, owned or licensed from a third party?

Protect what you have.   If a deliverable or work product is owned by your company consider whether it should be protected by IP registration or trade secret policies.  If you are unsure, contact your legal advisor.

Put IP Notices on original materials. This includes appropriate notices, symbols and disclaimers for your IP, for example:

  • Copyright notices include the © symbol and copyright notices such as “© 2010 . All rights reserved.”;
  • Patent rights can be indicated on a product or its packaging (i.e. Canadian pat. No. 1,234,567); and
  • Trademark rights can be indicated with use of the TM symbol or ® symbol for registered marks along with trademark notices such as “ is a registered trade mark of work”.

Make sure Consulting and Employment Agreements are in place to address Confidentiality and IP Ownership. Make sure written agreements are in place referencing commitments of non-disclosure, confidentiality and IP ownership before disclosing IP to employees or potential employees or engaging outside consultants.  If there is not an effective agreement in place, a consultant, for example, may claim IP ownership or otherwise misuse key information or materials for their own benefit or for others in the industry.

Mark  confidential information as “CONFIDENTIAL”. Where documents contain confidential information, mark the document “Confidential” and protect it from unauthorized disclosure.  Only discuss confidential matters internally on a “need to know” basis and do not disclose to a third party unless effective confidentiality and non-disclosure agreements are in place.

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Copyright Modernization Act Introduced

Posted on June 7, 2010 by Josh MacFadden

On June 2, 2010 the Canadian government announced the introduction of Bill C-32  The Copyright Modernization Act .

The government announcement (see here) of the bill was accompanied by the website entitled "Balanced Copyright" which provides backgrounders, FAQs and fact sheets which should be useful for anyone interested in protecting their copyright interests or seeking to better understand the proposed legal implications for common practices in the digital world such as format shifting (i.e. copying a purchased CD to an mp3 player), time shifting (i.e. recording of television content to be viewed later), mash ups, etc. 

Under the current legislation, it is unclear whether such practices are illegal (even Canada's Industry Minister recently admitted that his own format shifting practices may offend current copyright legislation - see Sarah Schmidt's article in the National Post, May 26, 2010) and thus clarifying the law with respect to digital and communications advancements has been anticipated for some time by creators and consumers alike.

A non-exhaustive list of highlights include:

  1. "Fair dealing" is extended from the current "research and private study" to include education, parody and satire which is thus more in line with "fair use" in the United States.
  2. Reproduction of a legally purchased works for backup or format shifting purposes will be available provided that such actions do not circumvent technical protections ("digital locks").
  3. Prohibitions have been introduced for breaking digital locks (or providing such services) designed to prevent copying of books, movies, music, etc. whether or not such conduct would otherwise satisfy "fair dealing" exceptions.
  4. Statutory damages have been altered to reduce penalties for "non-commercial" copyright infringement (i.e. to a range of $100 to $5,000.00).
  5. Penalties have been introduced for service providers that knowingly provide Internet services which enable or facilitate acts of infringement.
  6. A "You Tube" exception has been introduced to allow the right to remix user-generated content for non-commercial purposes under certain circumstances.
  7. In addition to the above-mentioned fair dealing extension, educational institutions will have access to additional exemptions relating to use of technologies (i.e. pod casts, use of the Internet, etc.) while libraries will have the ability to offer digital distributions, subject to certain restrictions.
  8. Copyright ownership in photographic works will be aligned with  copyright in other works (i.e. to be held by the author/photographer or his/her employer)

In view of the wide range of changes to existing legislation and implications for stakeholders, etc. the Bill is unlikely to pass "as is" but does represent a improvement over existing legislation and provides certainty for commonplace but currently "grey-area" practices (i.e. format shifting, back up copies, etc.). 

 For further comment see, for example, Michael Geist and his website initiative "Speak out on Copyright".
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