Intellectual property in Canada: what you need to know

Good ideas, innovative projects and inventions didn’t appear in the blink of an eye. These discoveries require months or even years of intellectual and physical effort. That’s why the fruits of your labor deserve to be protected, hence the concept of intellectual property. It’s a system that encourages innovation in an environment conducive to creativity. This article explains how intellectual property works.

Understanding intellectual property

Intellectual property protects works, discoveries, performances, inventions, domain names, trademarks and much more. But what does it actually consist of?

What is intellectual property?

According to the Canadian Intellectual Property Office(CIPO), Intellectual Property (IP) refers to creations of the mind used in commerce. Like movable or immovable property, a work belongs to its author, and this ownership is recognized by law. It is precious and confers several rights on its author.

IP plays a key role in your business. No one has a monopoly on the ideas and activities of others, and your invention can mark the beginning of your business. Protecting your creation through IP gives you control over its commercial exploitation.

What are the different types of intellectual property?

IP comprises 2 fundamental categories of rights: literary property and industrial property. They are then divided into a plurality of rights:

• • copyright, which protects artistic, musical, literary and dramatic works;

• • trademarks, which protect combinations of sounds, designs and words used to distinguish a product or service;

• • patents, which protect non-obvious inventions and improvements to existing inventions;

• • trade secrets, which protect valuable commercial information;

• • industrial designs or design patents that protect visual features applied to a product;

• • personality rights, which protect an individual’s image and private life.

IP is not limited to a country’s borders. It extends internationally. This is where international intellectual property comes in. It relates to international rules governing literary property (right of quotation, publishing contracts, etc.), artistic property (reproduction contracts, representation contracts, etc.) and industrial and commercial property (patents, trademark law, etc.).

However, each country has its own rules governing the legal protection of intellectual property.

Branches of intellectual property rights

Intellectual Property Rights (IPR) comprise several sub-categories, each with its own specificity.

Copyright

Copyright in Canada is a set of laws that protect intellectual creations, including literature, art, music, performances, films, television programs and software. These laws recognize that the author of a work has the exclusive right to produce, reproduce, publish, perform, translate and adapt it.

Copyright encompasses several exclusive rights: the right to produce, translate, reproduce, sell, modify, license, perform or publish a work. As a general rule, all rights belong to the creator. However, an employer (such as a film studio) may hold this right. Copyright is valid for the life of the author and 50 years after his or her death.

In Canada, original works are automatically protected from the moment of their creation. The creator has the exclusive right to use the work. However, the creator must officially appropriate the work by registering it with the Canadian Intellectual Property Office. This leads to a certificate of registration, which serves as proof of ownership.

Original works include literary, musical, artistic and dramatic works. Algorithms and source codes also fall into this category, and are protected by digital intellectual property.

Here are the steps for registering as copyright in Canada:

Copyright registration is not mandatory in Canada, as copyright exists from the moment the work is created. However, registration can provide important proof of ownership, in the event of litigation.

To register a work, follow these steps:

1. 1. Visit theCanadian Intellectual Property Office (CIPO) website. This is the government agency responsible for the administration and processing of intellectual property rights in Canada.

1. 1. In the copyright section, you’ll find detailed information on the registration process. There, you can begin the online registration process.

1. 1. You’ll need to complete a copyright registration application form. You’ll be asked for detailed information about your work, including its title, category and details of the author and copyright holder.

1. 1. Once you have completed the form, you will be asked to pay a registration fee. Fees may vary depending on the type of application.

1. 1. Once you have submitted your application and paid the fee, CIPO will review your application. If everything is in order, they will issue you a certificate of registration.

Trademarks

A trademark is a sign or combination of signs that distinguishes a product or service. It is the signature (a word, a design, a sound, a symbol or a combination of these elements) of a brand.

Its creator is not obliged to register his trademark. Nonetheless, registration is a useful way of making you a legal owner. He then holds the exclusive right to use the trademark. An officially registered trademark becomes a registered trademark.

To qualify for protection, a trademark must meet certain conditions:

• • official registration ;

• • absence of signs likely to cause confusion with other trademarks;

• • absence of signs likely to disturb public order;

• • the absence of trade names similar to other brands.

Following registration, the Registrar may cancel the trademark at any time for lack of use.

Patents

A patent grants the author a monopoly on his work for a fixed period in return for full disclosure of the invention. Inventions meeting 3 criteria are patentable: utility, inventiveness and novelty. It is granted to the first applicant, not to the first inventor.

The patent application involves several stages:

• • sending an application (accompanied by a brief and a petition) to the CIPO website;

• • payment of the fee after filing the patent application;

• • a search of existing patents in Canada by an examiner to ensure that the invention is innovative;

• • validation of the application;

• • obtaining the patent;

• • payment of the annual maintenance fee.

The patent grants its author exclusive rights for 20 years from the date of application.

Trade secrets

Trade secrets protect commercially valuable information of a confidential nature. In Canada, it is protected by provincial legislation.

The importance of trade secrecy depends on the context. It is useless for an entrepreneur who works alone. However, it is essential for an entrepreneur who employs several people. In such cases, a confidentiality agreement may be required for the good of the business.

What are the challenges of intellectual property for companies?

Intellectual property protects your company’s real assets, ensuring the long-term future of your business.

In addition, intellectual property rights protect your company’s identity: the signs that distinguish its products and services from those of the competition, its brand name and its image. Moreover, brand image ensures your company’s exclusivity, so protecting it is of paramount importance. Brand image is more than just your company’s name. It brings together all the elements that represent your company (product names, slogans, words, letters and distinctive motifs).

What to do in the event of intellectual property infringement?

Intellectual property infringement triggers 5-step legal procedures.

Step 1: Confirm intellectual property infringement

The victim demonstrates the original nature of his creation. Prove its anteriority in relation to similarities. Rely on tangible evidence and put together a complete file containing all the documents justifying the plagiarism.

These preliminary steps will enable you to benefit from the protection of intellectual property law, and thus obtain a criminal conviction or civil indemnity against the person responsible.

Step 2: Contact a specialist

In an intellectual property infringement case, freedom of evidence applies. In other words, the victim is not subject to any specific type of proof. Even so, the presence of a specialist is always required.

Seek the help of a specialized lawyer. He or she will explain the steps to be taken. The professional will help you gather evidence: commercial documents, invoices, computer evidence, etc. He or she will also tell you what action to take.

If the copyright infringement is serious, you can also consider filing a complaint with the police. Note, however, that the police generally only become involved in copyright cases when the infringement is particularly serious or obvious.

If the above measures are not effective, you may wish to consider taking legal action for copyright infringement. This will usually involve filing a complaint with a court.

Step 3: Go to court

To penalize the infringement of your creation, you need to file a seizure petition. This will enable you to obtain authorization to seize the elements that will confirm the infringement. You can make the request yourself, or enlist the help of your lawyer.

Your adversary will not be notified of your request until the seizure has been carried out by a bailiff.

Step 4: File a complaint

Next, file a complaint with the police or gendarmerie. Bring evidence and documents confirming the authorship of the disputed work.

In your complaint, specify :

• • the identity of the perpetrator ;

• • contact details;

• • the date and location of the offence;

• • the damage.

The public prosecutor will decide what action to take: a direct summons and seizure in court, an out-of-court settlement, dismissal..

Step 5: Settling disputes

In the case of ongoing court proceedings, the victim can approach the party responsible for the infringement of his or her intellectual property rights and suggest an amicable solution.

As a general rule, disputes of this kind are settled through mediation or negotiation.

Best practices for protecting your intellectual property

In addition to registering your work, there are other strategies you can use to protect your copyright:

• • think about intellectual protection before your work is born;

• • use discretion until the work has been registered;

• • implement property identification measures.

Ongoing competitive intelligence remains the best approach to avoid counterfeiting.

Conclusion

In business, intellectual property plays 2 major roles: it ensures the continuity of your business and preserves the authenticity of your brand image. Registering your work is an essential step. This will facilitate recourse in the event of infringement of your intellectual property rights.