Services : Copyright

Did you know that whenever an original literary, dramatic, musical or artistic work is created, it is automatically protected by copyright in all but very few countries of the world? Besides the obvious examples, copyright may subsist in marketing materials, spreadsheet macros, business correspondence, instruction manuals, web interfaces, and even comments on a blog or Twitter messages.

In today’s world, almost all companies – with very rare exceptions – own or use copyrighted works. Failing to understand or pay attention to copyright rules often leads to frustrating and costly showdowns.

Copyright has been the focus of my legal career since 1994. Protecting innovation and defending copyright is what drives my passion as a lawyer.

I provide a full scope of copyright services for authors, artists, startups and large corporations.

Read below for a list of services available in the area of copyright. You may expand each individual entry by clicking on icons. You may also expand or hide them all.

• Legal opinions as to:

  Legal opinions may be provided in writing or as part of face-to-face, telephone or skype consultations.

  In many cases, legal opinions may be provided for a project fee, instead of at the hourly rate.

• • whether a work is protected by copyright;

    Copyright Act provides that copyright subsists in “every original literary, dramatic, musical and artistic work”. However, the scope of copyright protection is not indefinite.

    It is of utmost importance to clearly understand if a particular result of creative activity is protected by copyright – whether you are planning to rely on that IP as your asset or whether you are planning to use someone else’s work.

  • whether a particular use of the work requires permission;

    Even if a work is protected by copyright, not every single use of it requires permission from the copyright owner.

    Some uses fall under the category of fair dealing, and some uses fall outside the legal definition of what “use” means under the Copyright Act.

  • whether a particular use of the work infringes copyright;

    Under the Copyright Act, it “is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do.”

    The question is whether a particular use falls under the scope of what only the owner of copyright can do and whether a particular use can be excused under the fair dealing provisions.

• Registration of copyrights with the Canadian Intellectual Property Office;

  Copyright emerges automatically, and registration is not required.

  However, the Copyright Act provides that a certificate of copyright registration is evidence that copyright exists and that the person whose name appears in the register is the owner of the copyright.

  Also, if your copyright is not registered and an infringer proves that they did not know that copyright subsisted in the work, you may only get a court order for the infringer to cease the infringing activity, but no money.

  When you register copyright with the Canadian Intellectual Property Office, there is no need to deposit a copy of the work.

  While the registration process is rather straightforward and inexpensive (the government fee is only $50 for online submission), we can assist you with the filing.

• Drafting and revision of:

  It is not enough to know that copyright attached to the work once it was created. It is no less important to make sure that every subsequent step in how the work is being used is properly documented.

  Too many copyright owners spend too much time and money worrying about registering their copyrights – only to assign all rights in the works they own on horrendous terms.

  If you are contemplating entering into a deal involving licensing or transferring copyright, you should always have it drafted or at least reviewed by a lawyer with a deep understanding of how copyright works.

  And if the deal involves a possibility that the licensed (or assigned) work will be used outside Canada, you should always have it drafted or reviewed by a lawyer who knows how copyright works internationally.

  In many cases, we may draft and review copyright licenses and assignments for a project fee, instead of at the hourly rate.

• • copyright licenses;

    Copyright license is the type of agreement that allows a third party to use a work in a specified manner and on certain conditions. The identity of the copyright owner does not change.

    There are three types of licenses: non-exclusive, when the licensor retains the right to license the work to others; sole, when the licensor cannot license the work to anybody other than the licensee, but retains the right to use the work; and exclusive, when the licensor can neither license the work to anybody other than the licensee, nor use it.

    Under the Copyright Act, no grant is valid unless it is in writing and is signed by the owner of the right in respect of which the grant is made.

  • assignments of copyright;

    Assignment of copyright is the type of agreement pursuant to which the copyright owner transfers their rights in the work to another party.

    Assignments may be for all or part of the rights in the work, and may also be for the whole term of the copyright or for a certain period.

    Under the Copyright Act, no assignment is valid unless it is in writing and is signed by the owner of the right in respect of which the assignment is made.

  • clauses relating to copyright in employment agreements;

    In Canada, the initial copyright in the works “made in the course of employment” belongs to the employer. Unlike in the U.S. (where there is a broader concept of “works for hire”), there must be an actual employment relationship between the author and the employer for the rights to be initially vested in the employer.

    Even when such a relationship exists, it is still a very bad idea for employers to blindly rely on the provisions of the Copyright Act in the hope of owning all rights in the works created by their employees. There are many issues that statutory provisions do not cover, such as moral rights and who has the right to create and use derivative works. It is always much better to agree on such terms in black and white.

• Registration of licences and assignments with the Canadian Intellectual Property Office;

  Registration of copyright transfers (licences or assignments) with the Canadian Intellectual Property Office facilitates proving who owns what and who has the right to do what with respect to a work.

  While the registration process is rather straightforward and inexpensive (the government fee is only $65 per assignment or license), we can assist you with the filing.

• Worldwide enforceability checkup of copyright licenses and assignments;

  Even if your copyright licenses and assignments are flawless in context of Canadian copyright laws, they almost certainly fail to take into account several important issues that may come up if the works are used outside North America.

  While the advice of lawyers from every single jurisdiction is the preferred option, very few companies would justify the budget.

  This is where my unique service comes into play – for a flat fee you can find out how you could improve your existing agreements and reduce the risks associated with their interpretation outside Canada.

• Assisting parties in negotiation of copyright agreements;

  While it is true that every deal depends on which party wants the other more, it is almost impossible to negotiate a good deal if one does not have sufficient knowledge of how copyright works.

  The party at the other end of the table tends to offer more reasonable terms if you are represented by a copyright lawyer.

• Due diligence re: copyright transfers;

  If you are buying a business that boasts certain IP assets, it is important to make sure that the seller does indeed own what they are selling.

  Due diligence means that we will review all copyright-related clauses in the agreements entered into by the seller and identify possible risks with respect to the copyright-related assets that are offered for sale. This allows the buyer to make an informed decision about the value of these assets.

• Consulting authors and copyright owners whose copyrights have been infringed;

  If you are an author or an owner of copyright, and someone is using your works without your permission, there are two questions you may be asking: (1) is the unauthorized use illegal? and (2) what can be done about it?

  It is important to see the difference between these two questions.

  Once you know the answers to these two questions, you will be in a better position to plan your next steps.

• Consulting parties who believe that they have been wrongfully accused of infringing someone else’s copyrights;

  If someone is accusing you of infringing their copyrights and you believe that you have done nothing wrong, we will be happy to suggest a strategy for your legal defence. Baseless accusations are not rare, and often a strong response is all it takes to make the bully go find a different victim. And if there is some basis behind the accusations, now may be the best time to consider solutions that will save the expense of prolonged litigation.

• Representing companies and individuals in court.

  If all else fails, copyright disputes are resolved in court.

  It is a known fact that only an infinitesimal number of cases actually filed in court get to trial in Canada – most cases get settled at some point.

  Some lawyers are notorious for letting litigation drag on for much longer than necessary – only to increase the billings. Mincov Law Corporation is different in that our goal is to find the shortest way from point A to point B, not to keep wondering around at the client’s expense.

  There are many steps in the course of a typical lawsuit, and we can represent you throughout the trial to reach the optimal solution. It is extremely important for the lawyer and his client to be able to see things in context of what the goal is and what alternative solutions may cost.

  This is what determines a successful strategy.

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