Unit 2 - Intellectual Property Flashcards
Why IP matters
You are media creators
It’s important to know your rights and responsibilities - even if you want to give others full access to your work
Companies that you work for may have rights over your work and you should know about that
Creative works builds on ____ work
Other work.
Creative projects are rarely entirely brand new ideas
It’s important to know what you can use and how to use it with proper attribution
Types of Intellectual Property
- Industrial
- Copyright
Examples of Industrial Intellectual Property?
Patents
Industrial Designs
Trademarks
Wordmarks
Examples of Copyright Intellectual Property
Books, Plays, Manuscripts
Drawings, Paintings
TV, movies
Music
Multimedia
Patents
“a time-limited, legal right to exclude others from making, using and selling an invention, which may be a product, composition, machine, process, or an improvement of any of the aforementioned that is new, useful and inventive.”
Patents Continued
The Canadian Patent Act and Patent Rules govern the patent application process and enforcement of patents. To obtain a patent, the basic criteria for patentability must be met.
(For Patents) To qualify, an invention must be
a patentable subject matter;
novel;
useful; and
non-obvious.
Industrial Designs
Industrial designs are the visual features of a product that appeal to the eye: the contour of a car hood, the pattern of a knitted sweater, the shape of a computer monitor. Distinctive and attractive features like these give products a competitive edge.
Is a new water jug likely to be patentable?
A new water jug is unlikely to be a patentable because its functional characteristics (container, handle, spout, etc.) are not new.
But! If the outwardly visible shape or appearance of the new water jug differs from the shape and appearance of prior water jugs, then the shape and appearance of the new water jug is protectable.
Can a snowmobile visor be protected using IP rights?
AFX sued competitor, HJC, for industrial design infringement. HJC argued that the design was invalid due to a lack of originality and due to functionality.
Court decided AFX’s ID registration was valid, but was not infringed by HJC because of “substantial differences” in their designs.
What are trademarks?
A trademark may be one or a combination of words, sounds, designs, tastes, colours, textures, scents, moving images, three-dimensional shapes, modes of packaging or holograms, used to distinguish the goods or services of one person or organization from those of others.
An example would be mcdonalds logo and their slogan “ba da ba ba ba, I’m lovin’ it”
What are wordmarks?
A distinct, text-only “typographic treatment” that’s attached to a company, institution or product line.
An example is The Government of Canada wordmark, or Google, FedEx, Sony, H&M
This is different than graphic logos like Nike, or Instagram, or Dominos, or Target, or Starbucks
What is copyright?
“Copyright provides protection for literary, artistic, dramatic or musical works (including computer programs) and other subject-matter known as performer’s performances, sound recordings and communication signals”
What is not covered by copyright?
- Facts and theories
- Short & common phrases
- Ideas
- Government works
- Names, titles, slogans (see trademarks)
- Methods
- Merger doctrine
What are examples of facts and theories that are not covered by copyright?
E = mc^2
Pi = 3.14159
Being hit with a hammer hurts!
What are examples of short and common phrases that are not covered by copyright?
Good day!
I love it
There’s no place like home
What are examples of Ideas that are not covered by copyright
The plot of a movie is not copyrightable
But the characters and dialog are!
What are some examples of Government works that are not covered by copyright?
Publications
Notes, minutes, emails
Legislation
Are Names, titles, and slogans covered by copyright?
No they are not covered by copyright but they may be eligible for a trademark
What are examples of Methods that are not covered by copyright?
Teaching methods
Food recipes
Often still kept as trade secrets
How come Merger Doctrine is not covered by copyright?
When there is only one or a limited number of ways to express an idea, copyright law will not protect the expression because it has “merged” with the idea.
What are examples of Merger Doctrine?
An airplane signifying an airport on a map
A trash can for deleting computer files
MS vs Apple desktop metaphors
(Copyright requirements)
To be protected, works must:
Be original
Your idea can’t have already been copyrighted or otherwise protected
If it looks too similar to something already made, then it will likely will not be copyright eligible (and possibly infringes on someone else’s copyright)
(Copyright requirements)
To be protected, works must:
Involve some effort
By law, it “requires more than trivial or mechanical intellectual effort”
The work must demonstrate a “modicum of creativity” in decision making
“The earth is round” can this fact be copyrighted?
Facts like “The earth is round” can’t be copyrighted.
But if we take that fact and publish it into a book - we can copyright the book that states the fact.
Why? The book is a physical embodiment (that contains the fact).
Why should you copyright? Copyright allows you to:
Reproduce the work
Distribute the work
Create derivative work
Perform or display the work
-plays, music, posters etc.
Assign the rights to a 3rd party
-requires serious thought on the part of the author
How to copyright?
Canadian Intellectual Property Office (CIPO)
Prior to 1989, a copyright notice was required on the work
Today, © is de facto granted upon release of the work to the public
Copyright is not granted internationally
It’s still a good idea to put a copyright notice into your work
How to copyright continued. A copyright notice should include:
- The name of the copyright holder
- The word Copyright
- The c in the circle i.e. ©
- The year of the publication
Example: Super Fun Lecture by Mathieu O’Brien, Copyright © 2023
In Canada how long does copyright last?
Canada: 50 years after the creator’s death
How long does copyright last in the USA?
It’s complicated. Enter: The Copyright Term Extension Act of 1998
For copyright created after 1977: lasts 70 years after the creators death
For copyright created before 1923: it is public domain
Copyrighted 1923-1977: lasts 95 years after the initial copyright
How long does copyright last if the work was created after 1977 in the USA?
70 years after the creator’s death
How long does copyright last if the work was created before 1923?
It is public domain
How long does copyright last if the work was created between 1923-1977?
It lasts 95 years after the initial copyright
How come people commit copyright violations?
Don’t realize the illegality
Cost: unwilling or unable to pay
“Everyone else is doing it”
Quicker
Easier, wider availability
-Geographic or language
Evaluation: Try before you buy
Restrictions of legitimate versions:
-Ads, DRM, region lock, DVD region codes
Privacy
Moral arguments
-Information should be free
-Distributing to those in need
-Distributing to get rich
-Distributing out of spite
Ownership: Independent Contractors
Typically, all work done by an employee at the workplace belongs to the employer (exceptions for article and other contributions to newspapers, magazines, etc.)
All work done within the scope of the project (regardless of location) belongs to the employer
You are not allowed to copyright the work unless it is part of a larger body of work
Ownership: Employees
Much stricter
Typically assigns copyright to the employer
Often includes any work created during the term of employment AND anything using company resources
TLDR: Read employment contracts carefully!
Ownership: Joint work
Is the work easily separable?
YES: you maintain copyright on your parts of the joint work
NO: All authors maintain copyright on the joint work
Permission granted
De facto due to ownership
-author, employer, assignee
Required for any work that is intended to generate revenue directly or indirectly
Permission is not required if?
Copyright expired
Copyright released
Dedicated to the public domain
Under fair dealing (fair use)
(Use terminology) Permission
The expressed right to use an item (can take 6-12 months)
(Use terminology) Licensing or Clearance
Getting permission
(Use terminology) Infringing
Using without permission
(Use terminology) Releases:
Permissions to use likenesses
(Use terminology) Indemnity
Legal exemption from liability
(Use terminology) Exclusivity:
only you can use it
(Use terminology) Duration:
the ‘term’ of the license
(Use terminology) Location
Where you can use it
What is public domain?
Everything that’s free for everyone to use without permission!
What works are included in public domain?
Includes works:
With expired copyright (recall: in Canada that’s 50 years after the end of the year in which the author dies)
Dedicated to the public domain
What are some tricky cases when it comes to public domain stuff?
A movie with expired copyright can have a soundtrack that is still copyrighted
Copyright is shared by all authors and expires 50 years after death of last living author
Work from other countries is not necessarily free to use
Modified public domain works can be copyrighted
Websites are NOT public domain - material from web pages can only be copied freely if:
-it has been created by federal government
-copyright has expired
-copyright has been abandoned
Are websites considered public domain?
No
Fair Dealing
In Canada, Australia, Commonwealth
Not considered copyright infringement
Fair Use
In the United States
Considered allowable infringement
What is fair dealing?
Utilization of a portion of a copyrighted work for purposes of:
-Parody
-News reporting
-Research
-Education
Without the permission of the author, use of copyrighted works for any other purpose is not considered fair use.
Best to always contact the owner, just in case.
Nuance
Music
-Sampled beats, remixes
Gifs
-There’s no standing legal decision, so it comes down to individual disputes between creators and GIF users - and whether or not they’re used “fairly”
Is it Fair Dealing?
To use some intellectual property under fair dealing ask:
- Purpose: Is it for research or private study, criticism, review, or reporting?
- Character: How is it used? What is the intent? Is it distributed?
- Amount: How much work is used?
- Alternatives: What else could you do?
- Nature of the work: Is it published? For profit?
- Effect: Is it a loss to copyright holder? Defamation, quantifiable harm?
Was Napster Fair Dealing?
Napster is a peer-to-peer mp3 transfer
- Purpose: Mostly private enjoyment
- Character: Widely distributed to strangers
- Amount: Full songs
- Alternatives: Buying CDs
- Nature of the work: Shared, not for profit
- Effect: Record sales losses, but some promotional gains
