Creativity Life Cycles : Canadian Trademark Agent and Lawyer : Joshua MacFadden : MacPherson Leslie & Tyerman Law Firm : Patents, Intellectual Property

Be careful when copying material. Most material on the Internet (i.e. photos, logos, articles, etc.) is protected by copyright. Such material can only be used with the written consent of the owner (i.e. a license). The penalties of using content without such permission can be costly and embarrassing to you or your business. 

Be careful when selecting and adopting new trademarks (i.e. logos, product names, slogans, etc.).  It is important to research whether a new trademark may infringe on a third party’s copyright and/or trademarks. Consult with a legal advisor to research the availability of your new trademarks before investing large sums of time and money in adopting new brand names, logos or slogans.  A failure to do so may result in a need to re-brand or, at worst, litigation.  Bottom line:  the loss of momentum for your new brand, not to mention the costs associated with litigation, are huge in comparison to appropriate due diligence.

Comply with license terms. Periodically review  compliance with all key licensing agreements to which you are a party and make sure you are complying with user counts and other license terms and conditions. If you are not sure, check the license or consult with your legal advisor.

Protect third party confidential material.  Many businesses will have material from third parties that is protected under confidentiality agreements.  Segregate this material from non-confidential material, don’t disclose to third parties without authorization, and only discuss that information with others on a “need to know” basis.

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With our change of the calendar to 2012 it is worth noting the many artists, writers, lyricists and other 'creative types' whose work now passes into the "public domain" as a result of applicable copyright laws (i.e. in Canada, the life of the author/creator plus fifty years; in other jurisdictions, the life of the author/creator plus seventy years). 

With the help of a third party blog post entitled "Public Domain Day 2012", the unofficial list of creators whose published works have potentially* entered the public domain in Canada includes, among others, Ernest Hemingway and Carl Jung, both of him died in 1961.  In other jurisdictions (i.e. Europe) where the relevant date is 1941, the list of creators includes such prominent figures as James Joyce, Virginia Woolf, and Frederick Banting.

* It is important to note that entry into the Public Domain is not automatic and subject to many qualifications including works of joint authorship, unpublished/posthumous works, retroactive extensions, etc.  If in doubt, contact legal counsel for advice.

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IP is an asset of every business and indeed, may be the most valuable assets of a business.  Such assets include brand names, logos, slogans, domain names, software code, literary works, inventions, confidential information and trade secrets (i.e. everything from your customer list to your corporate logo).

For many businesses IP may be unprotected, under-exploited, or vulnerable to theft or infringement by third parties thereby reducing the potential competitiveness of a business and opportunities for growth.   Any individual or organization which invests in innovation fails to capture and exploit the true value of that investment if IP rights are not protected, commercialized and enforced.  Moreover, to the extent that a third party’s IP (i.e. software) is being used in conducting business, it is essential to know what your rights and obligations are to any such third party to ensure you are not violating the rights of third parties.

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The Government of Saskatchewan recently introduced Bill 68 to provide legislative protection for artists and their intellectual property.  Significantly, the legislation, entitled The Arts Professions Act, affirms and recognizes:

• the important contribution of artists to the cultural, social, economic, and educational enrichment of Saskatchewan;
• the value of artistic creativity in advancing Saskatchewan's cultural, social, economic and educational life;
• the valuable contribution of artists to Saskatchewan's cultural heritage and development; and
• the importance of professional artists of being fairly compensated for the creation and use of their artistic works.

Notably, the Act requires the execution of written agreements when engaging qualifying "Professional Artists" for goods and services including clauses addressing the financial consideration due, the terms of payment, dispute resolution mechanisms, copyright waivers (if applicable), the transferability/assignability of the agreement, etc.  It is anticipated that once the Act comes into force June 1, 2010, the certainty provided by the legislation will formalize and standardize contracting between Professional Artists and engagers thereby mitigating against prolonged disputes over the terms of sale or transferability of artistic goods and services and the underlying intellectual property rights relating thereto. 

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