Copyright Infringement Explained
Aim Media is a huge supporter for Small Business and Freelance designers. Because these two worlds are so closely related and share a similar excitement when kicking off new projects, discussions on copyright and licensing rights are often skewed or misunderstand. So we thought we would clear the air on this topic and strip it down to the bare bones.
In Canada, a designers Copyright comes into play as soon as they have created it. This means anything speculative or the final that has either been written, drawn, or digitally created on a tablet or computer is automatically copyrighted by the designer. There is no need to register. Especially when using Adobe products, the digital signature with time and date stamp is the registration. In Canada, a copyright remains in effect for the duration of the designers life and for 50 years after death.
Unfortunately Copyright Infringement is a very common thing. On the receiving end of a design, it is important to establish the usage rights wanted, whether it’s exclusive or a defined scope. Always make this clear, because without a written agreement from the designer, the designer holds all the rights. For the designers, no one can enforce the copyright other the designer.
With that said, here are a few examples of copyright infringement under Canadian Law. These examples apply and are enforceable when designs are being used for commercial purposes.
- When using someone else’s work to create a new one and don’t have that person’s permission, the copyright in the new work (known as a derivative work) will then be owned by both. The Designer will be able to assert their rights over the new part created, even if they have infringed someone else’s copyright over the old part. The distinction also needs to be drawn between copying, which negates originality, and using existing material or knowledge common to people in the industry. This common knowledge doesn’t negate originality.
- Copyright Infringement occurs when someone copies or adapts a substantial part of a design without the designers authority. In Canada, substantial is regarded as the substance of the work that gives it its originality.
- Copyright Infringement occurs when someone who doesn’t copy or adapt your work but who distributes or makes infringing copies of your work available for sale, rent or for commercial use.
- Copyright Infringement occurs when someone tampers with, changes your work, sub-licences it to other people or downloads and distributes it for use outside the original scope intended and for commercial use. Unless you provide written agreements for the rights to do so, this is copyright infringement.
- The mere act of downloading and distributing content of any kind without the permission of the designer/author is copyright infringement.
In the event of copyright Infringement, best remedies are always to initiate friendly discussions between designer and perpetrator first. Seasoned designers will casually notify their client that something is out of line in hopes of a resolution or payment for the extended usage. If that fails, Cease and Desist letters notifying the perpetrator of the offence with the appropriate action or remedy for them to take will follow. When all else fails, hefty damages can be sought after and the outcome is usually in favour of the designer. This is an unfortunate road to cross, and thankfully we have never had to take this action. Often these types of disputes are resolved with a simple phone call, text or email and both sides remain content.
Click here for more information on Canadian Copyright Laws.