Intellectual Property: What is it, how is it defined, and what does it protect?

Intellectual Property; What is it?

Intellectual Property; What is it?

Intellectual property

We’ve all heard of intellectual property or IP. We have some vague notion about it, but it seems rather difficult to grasp. And if it’s difficult to grasp as a concept, how do we know if we own any; if we do, how do we protect it; and finally, are we respecting the IP of others?

First, the reason intellectual property is so important is because it can have value. Think of your favourite book, movie, play, or song. Someone created them. Whoever did, had, at least when it was created, copyright to the piece.

Copyright

Copyright is defined as:
The exclusive legal right to produce, reproduce, publish or perform an original literary, artistic, dramatic or musical work.

While we usually think of artistic pieces when discussing copyright, this type of intellectual property also covers code. When someone designs a program, app, or other digital creations, those are protected.

Copyright has long been recognized as valuable. The founding members of the Berne Convention (established in 1886) recognized the value of creations. The Convention imposes minimum standards on signatory countries to protect intellectual property. Today, 174 countries, including Canada are signatories.

Copyright accrues to the creator at the time of creation. It’s automatic.  As soon as you write, draw, record, or paint a work, you own the rights associated with that piece.  Nothing else need happen.  As I write this post, I automatically acquire the all rights associated with it.

Under copyright, those rights include moral and economic rights.  A creator can sell the economic rights, but always retains the moral rights.  So, if anyone wanted to buy this article, they could offer to purchase, and if I was willing to sell, I could (anyone?… anyone?).

CIPO

But if you write a masterpiece and someone else publishes it, how do you prove you wrote it? Fortunately, if you intend to make a living off of stuff you create, the Canadian Government established a central registry.  The Canadian Intellectual Property Office (CIPO) maintains a copyright register.  When someone registers his or her work with CIPO, the Copyright Law of Canada states that the registrant is presumed to be the owner of the work.

A presumption established in law is a significant advantage. This means that if someone challenges your copyright, the challenger will have to prove that he or she is the actually owner because the law automatically assumes the registrant is the owner.  The challenger will have to go to significant length to convince a judge that he or she is the rightful owner.  The registrant only has to show up. In terms of costs, this is significant.

Trademark

According to CIPO, a trademark is:
A trademark is a combination of letters, words, sounds or designs that distinguishes one company’s goods or services from those of others in the marketplace.
A trademark can develop through use, but to guarantee protection an owner should register with CIPO.  In addition to the copyright registry, CIPO maintains a trademark registry.  However, the process to register a trademark is significantly more rigourous.  First you need to apply.  You can do it yourself, but CIPO lists approved trademark agents.  Whenever a government lists approved agents, it is usually a good indication that you shouldn’t attempt to do it on your own….

Trademarked Sounds

As indicated above, trademarks include sounds.  Some notable sounds trademarked under U.S. law include Homer Simpson’s D’oh!”, Darth Vader’s breathing, and the Pillsbury Doughboy laugh.  In Canada, the characters Bob and Doug McKenzie trademarked hoser,” g’day eh” and take-off, eh”.  It’s unclear whether they trademarked the words only or the sound of the words, but you get the picture.

In the U.S. Harley Davidson also famously tried to trademark the sound of their engines.  However, as you can expect, every other large motorcycle manufacturer opposed their application.  After six years of litigation, the company ceased its attempts to register in 2000.
CIPO also manages other registers including patents and industrial designs.  An individual or company can develop significantly valuable ideas.

Disclaimer – Legalese

I am posting this article for informational purposes only. The content does not constitute legal advice or solicitation.  It does not create a solicitor client relationship (this means that I am not your lawyer until we both agree that I am). If you are seeking advice on specific matters, please contact Philippe Richer at richerp@tlrlaw.ca, or 204.925.1900. We cannot consider any unsolicited information sent to the author as solicitor-client privileged (this means confidential)



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