- Questions about copyright - Canada
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- Questions about trademarks -Canada
There are three basic requirements that work must meet to be protected by copyright:
- Originality: To be original, work must merely be independently created. In other words, it cannot be copied from another. There is no requirement that the work is novel (as in patent law), unique, imaginative or inventive.
- Creativity: To satisfy the creativity requirement a work need only demonstrate a very small amount of creativity. Very few creations fail to satisfy this requirement.
- Fixation: To meet the fixation requirement a work must be fixed in a tangible medium of expression. Protection attaches automatically to an eligible work the moment the work is fixed. A work is considered to be fixed so long as it is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
These three requirements do not present a difficult obstacle to overcome to receive protection. Unlike the requirements for protection under patent or trademark law, very few works that fall within the subject matter of copyright fail to satisfy all three of these requirements.
Significantly, there is no requirement that the copyright owner registers the copyrighted work with the U.S. Copyright Office or place a copyright notice on the work to obtain copyright protection for the work.
To open in a new tab, click: Requirements for copyright protection
Keep in mind that it takes many months for the Office to examine your work and get back to you. The process can also be as brief as three months. But a timeframe of 6 to 8 months is more realistic. And don’t be surprised if it takes as long as 9 to 10 months to be notified that your registration application has been approved.
To open in a new tab, click: How long does it take to register copyright?
Government fees for registering copyright online:
- A lower filing fee ($35 for a single author who is also the sole claimant in a single work that is not made for hire, or $55 for all other online filings, compared to $85 for a paper filing);
- Faster processing time;
- Online status tracking;
- Secure payment by credit or debit card, electronic check, or Copyright Office deposit account;
- The ability to upload certain categories of deposits directly into eCO as electronic files.
It’s important to understand that you can still register online even if you intend to submit a hard-copy deposit simply by printing out a shipping slip to be attached to your work for delivery by the U.S. Postal Service.
To open in a new tab, click: What are the copyright government fees?
1- A completed application form;
2- A nonrefundable filing fee; and
3- At least one copy of the work(s) being registered.
To open in a new tab, click: What’s required to file a copyright application?
Copyright offers protection of original works of art — creative expressions that are fixed in a tangible medium of expression. Copyrights can be obtained for many types of works, including a computer software program, book manuscript, painting, a recorded or written piece of music, a photograph, or a movie. It is strongly recommended that published works of intellectual property be formally copyrighted, as it is the registered copyright itself that provides the best remedies against infringers. Registration provides you with statutory damages and you do not need to prove actual harm — just that the infringing activity took place.
Copyright protection is automatic. This means you do not need to register your work for it to be protected. However, there are several benefits to registering your work with the U.S. Copyright Office, including the opportunity to obtain statutory damages and attorneys’ fees in court.
Statutory damages are particularly important to copyright owners. They entitle successful plaintiffs to recover, instead of actual damages and profits, automatic damages that range from $200 to $150,000 per infringing work, depending on the extent of the infringement, the knowledge of the infringer and other factors. Actual damages can often be difficult and costly to prove and to calculate, so statutory damages are often a better option.
To open in a new tab, click: How do you register your work with the U.S. Copyright Office?
- Ensure that you have registered a copyright for your photographs.
- Make sure you physically affix your trademark to your products and/or packaging.
- Make sure you are Brand Registered.
- Consider putting a watermark on your images.
To open in a new tab, click: How to prevent others copying your photographs?
Report offending images via drop-down menu “copyright” and choose images.
If you own copyright and a trademark, Amazon will remove offending images and issue a listing violation warning once you provide evidence of IP ownership.
You can also send the other seller an invoice for the unauthorized use of your image.
report them to Amazon for IP theft. Someone else suggested you’d have to prove it, but there are other threads on this going back years that suggest you won’t – that Amazon will automatically side with you to avoid getting drawn into the argument and tell the other seller it’s up to them to sort it out with you and (effectively) prove their innocence.
To open in a new tab, click: What to do if your Amazon photographs have been copied by another seller?
The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.
When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.
To open in a new tab, click: Does “poor man’s” copyright exist?
Ideas, facts, and concepts are not protectable by copyright. However, the expression of those ideas, facts, and concepts are protectable. For example, anyone may “use” the ideas, facts, and procedures in a news article to write their own article that uses their own expression, but, with some exceptions, no one is allowed take the expression used by the author of the article to describe or explain those ideas, facts, and procedures. This is what is known as the idea/expression dichotomy. This distinction between what is and what is not protected by copyright encourages people to build freely upon the ideas and information conveyed by someone else while at the same time encouraging the creation and dissemination of the copyrighted work in the first place.
Although it is rare, there are times when the idea and the expression of the idea are so intertwined with one another that there is only one way or very few ways to express the idea. When the idea and expression of the idea merge like this the expression of the idea is not copyrightable. This is what is commonly referred to as the merger doctrine.
To open in a new tab, click: Are ideas protected by copyright?
Copyright protection is not available for:
- Procedures, processes, and methods of operation;
- Ideas, facts, and concepts;
- Principles and discoveries;
- Titles, slogans, and other short phrases;
- Lists of ingredients;
- Creations that are not fixed in a tangible form, like an improvisational comedy sketch;
- Information that is comprised completely of common property and no original authorship, like standard calendars, height, and weight charts, tape measures, and rulers;
- Utilitarian elements of industrial designs (although the expressive elements of the design may be protected, such as a decorative lamp base);
- Familiar symbols or designs, like a “Stop” sign;
- Simple geometrical shapes; and
- Mere variations of typographic ornamentation, lettering or coloring.
In some cases, these things might be protectable under patent, trademark or trade secret law. For example, a slogan may be eligible for trademark protection and a process may be the patentable subject matter. Also, although an idea, fact or concept itself is not protectable, the expression of an idea, facts or concept, such as in description, explanation, or illustration may be protectable or as a database of facts. For more on this see the Idea/Expression Dichotomy.
To open in a new tab, click: What cannot be protected by copyright?
Copyright protects original works of authorship. Just about anything that can be fixed in a tangible form and constitutes a creator’s expression is protectable under the Copyright Act. A non-exhaustive list of copyrightable subject matter includes:
Literary Works. This category of works includes things like novels, poems, short stories, periodicals, essays, dictionaries, manuscripts, periodicals, and articles. It also includes software, such as smartphone apps, video games, and business software.
Musical Works and Any Accompanying Words. This category of works includes any work that consists of musical notes and lyrics in a musical composition.
Motion Pictures and Other Audiovisual Works. This category includes online videos, motion pictures, and television shows, video games, and slideshows.
Sound Recordings. A sound recording is a work that results from the fixation of sounds without a visual component, whether musical or spoken. This category of works includes music on CDs, podcasts, and recorded speeches.
Pictorial, Graphic, and Sculptural Works. This category of works includes two and three-dimensional works of fine, graphic and applied art, photographs, prints and art reproductions, maps, and diagrams.
Dramatic Works and Any Accompanying Music. A dramatic work is one in which a series of events is presented to an audience by characters through dialogue and action. This category of works includes plays, operas, and musicals.
Pantomimes and Choreographic Works. This category of works includes dances.
Architectural Works. This category includes not only the architectural plans but also the building and any associated drawings.
In addition to this list of works the copyright law also protects certain compilations and derivative works.
Compilations. A compilation is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole meets the requirements for copyright protection. Compilations include collective works, like periodicals, anthologies, encyclopedias and other works in which a number of independently copyrightable works are assembled, as well as, other works, like directories and databases, that incorporate and assemble pre-existing materials, data or other information that is not independently copyrightable.
Derivative Works. A derivative work is a work that is based on one or more preexisting works that have been transformed or modified in some way. For example, an abridged, annotated or revised edition of a book, translations, and musical arrangements.
Copyright protection in a compilation or derivative work extends only to the new material contributed by the author of the work and does not extend to either preexisting material included in the compilation or derivative work or any portion of a work that unlawfully incorporates copyrighted preexisting material.
To open in a new tab, click: What can be protected by copyright?
Original works of authorship, such as books, articles, songs, photographs, sculptures, choreography, sound recordings, motion pictures, and other works.
|Inventions, such as processes, machines, manufactures, compositions of matter as well as improvements to these.||Any word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.||A formula, practice, process, design, instrument, pattern, commercial method, or compilation of information that is not generally known.|
|Requirements to be Protected||
Work must be original, creative and fixed in a tangible medium
|An invention must be new, useful and nonobvious||A mark must be distinctive (i.e., that is, it must be capable of identifying the source of a particular good)||A trade secret must not be generally known to the public, confers an economic benefit due to its secret nature, and there must be reasonable efforts to maintain its secrecy.|
|Term of Protection||Author’s life plus 70 more years.||20 years||For as long as the mark used.||For as long as it remains secret|
|Rights Granted||Right to control the reproduction, making of derivative works, distribution and public performance and display of the copyrighted works||Right to prevent others from making, selling using or importing the patented invention||The right to use the mark and to prevent others from using similar marks in a way that would cause a likelihood-of-confusion about the origin of the goods or services.||Right to prevent others from misappropriating, using and disclosing the trade secret.|
To open in a new tab, click: What is the difference between copyright and other forms of Intellectual property?
Generally, a copyrighted work is protected for the length of the author’s life plus another seventy years. In the case of joint works, copyright protection is granted for the length of the life of the last surviving joint author plus another 70 years. Works made for hire, as well as anonymous and pseudonymous works, are protected for a term of either 95 years from the year of first publication or 120 years from the year of creation, whichever is shorter. When the term of protection for a copyrighted work expires, the work enters into the public domain.
Note: If the work was created before 1978, the term of protection may be different. If you are trying to determine the term of protection for a work created before 1978 we suggest you review the Circular relating to the term of protection published by the U.S. Copyright Office.
To open in a new tab, click: How long does copyright protection last?
A copyright notice does not need to be affixed to a copyrighted work for the work to be protected under the law.
Proper copyright notice consists of the following three elements.
- © Symbol: Most works should include the © symbol. (Although U.S. law also allows the word “Copyright” or the abbreviation “Copr.”, the © symbol is preferable because it is internationally recognized whereas the other terms may not be). In the case of sound recordings, the ℗ symbol (the letter “p” in a circle) should be used instead.
- Year of Publication: If the work has been published, the year of publication should be included. If the work is unpublished the notice should indicate the unpublished nature of the work in lieu of a year. The year does not need to be included in pictorial, graphic, or sculptural works, with accompanying text, if any, reproduced in or on any useful article, such as greeting cards, stationery, or jewelry.
- Copyright Owner’s Name: The notice should include the name of the copyright owner, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.
For example, a proper notice would look like this: © 2016 Copyright Alliance
To open in a new tab, click: What is the form of a copyright notice?
There are many reasons why you should use a copyright notice.
- Copyright notice makes other users aware that copyright is being claimed in the work.
- The notice identifies the copyright owner at the time the work was first published for parties seeking permission to use the work.
- The notice identifies the year of first publication, which may be used to determine the term of copyright protection in the case of an anonymous work, a pseudonymous work, or a work made for hire.
- Notice may prevent the work from becoming an orphan work by identifying the copyright owner and specifying the term of the copyright.
To open in a new tab, click: Should I use copyright notice?
Canadian Trademark Registration process is described in words as follows:
1. Trademark search
We will do a trademark search and provide report (within 1-2 days).
2. Trademark filing
Your application will be prepared and filed electronically on the Canadian Intellectual Property Office (within 1-2 days after final approval).
3. Trademark examination
Within 10-12 months after filing, your application will be reviewed by a Trademark Office examiner. It will either be approved or an office action will issue. An office action is letter asking additional questions or refusing a trademark based on confusion. Your mark is examined by the Trademark Office to ensure that it meets the requirements of the Canadian Trademarks Act.
4. Trademark Approval
Your trademark is approved for publication in the Trademarks Journal which is published weekly.
5. Trademark Publication
Your trademark is published for opposition purposes. Anyone may oppose, but must have good reasons, which are called “grounds for an opposition”. One of the most common grounds is confusion with a previously registered trademark. Opposition period in Canada is 2 months.
6. Trademark Allowance
If there are no challenges from 3rd parties during the opposition period, your trademark will be allowed for registration. Once the mark is allowed, final registration fee must be paid and/or Declaration of Use has to be filed. Your trademark will be allowed within 2-4 months after the end of the opposition period.
7. Trademark Registration
Your trademark will register and a Certificate of Registration will issue. The whole process takes 18-24 months.
8. Trademark Renewal
Your trademark must be renewed every 15 years.
To open in a new tab, click: Canadian trademark registration process
Yes, we are fully licensed. A registered trademark agent will work on your file. Your application will be professionally prepared and filed by a Canadian trademark agent.
To open in a new tab, click: Are you licensed? How can I ensure I am working with a trademark professional?
Please feel free to contact us for a free consultation. We’ll explain the process and make it easy for you. Contact us here.
To open in a new tab, click: Trademark process is very complicated. I am not sure what to do
Absolutely, you can use your trademark without registration. However, you have to be mindful of similar trademarks. If you are using a trademark that is similar to another trademark, you may be sued for trademark infringement.
To open in a new tab, click: Can I use my trademark without any registration?
Yes, you can. There are no laws against you filing the trademark yourself. However, using a registered trademark agent will save you time and money (yes money). If you file incorrectly, your trademark may be refused and you will not get government fees back.
Also, using a trademark agent will increase your chances of achieving registration
To open in a new tab, click: Can I file my trademark myself?
Yes, we will update you once we get news from the Trademarks Office.
We will also let you know if we receive any correspondence from 3rd parties.
To open in a new tab, click: Will I receive trademark updates?
Trademarks are usually examined within 10-12 months from filing so we’ll have news from the Trademarks Office within this time. Either your trademark is going to be approved or we’ll receive a letter asking additional questions (office action).
In either case, we’ll promptly notify once it happens.
To open in a new tab, click: When will I know if my trademark is approved?
Typically, it takes a week from the moment you contact us until your application is submitted. If you need rush service, please advise and we will do our best to accommodate your request.
To open in a new tab, click: How soon will you file my trademark?
We prepare all trademarks within 2 business days. Once we have a draft application ready, we send it to you for your review and final approval. If changes are required, we can usually do them within one business day.
To open in a new tab, click: How soon will you prepare my trademark?
It typically takes 18-24 months to register a trademark in Canada.
To open in a new tab, click: How long will trademark registration process take?
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