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Copyright

Most startup founders have a general notion of the copyright principles associated with the written materials they write and read, and the media they enjoy. So how does a startup obtain those rights, and what are the steps involved?

What is copyright?

Copyright is a form of intellectual property that protects certain rights in literature, music, drama, and other types of works.

What does copyright protect?

Copyright prohibits the copying of a work—this is the main protection it offers. Copyright does not guard against copying ideas. It only protects a particular expression of ideas. Therefore, someone can read a copyrighted work and independently create another work expressing the same ideas in a different way and not violate the copyright of the original work.

For work that originated in Canada, entrepreneurs do not have to affix the copyright symbol [©] to benefit from copyright protection. However, it is usual to include in the following places a copyright notice that details the owner, the date of creation and an indication of copyright reservation:

  • any original software
  • expressions of confidential information
  • training and marketing manuals
  • the company website(s)

Copyright registration and Canadian startups

One does not need to register to enjoy copyright protection. Since copyright automatically exists in qualifying works, you do not need to file a registration to obtain copyright. That said, copyright registrations do provide certain advantages. In Canada, holders of copyright registration enjoy certain benefits in connection with any infringement litigation. In the United States, copyright registrations matter more. For example, an infringement suit cannot be filed in the United States for a work that originated in the U.S. unless an application for registration was filed prior to the start of the action. Additionally, statutory damages are only available in the U.S. if an application for copyright registration was filed prior to any infringement or within a specified period from the publication of the work.

While copyright registration costs relatively less than other types of intellectual property registrations, startups will still want to weigh the benefits of registering against its expense. Potential partners, customers and investors are generally indifferent, and as a result, obtaining a copyright registration proves generally not the normal course in Canada. However, in the United States, it is more common to file for copyright registrations, particularly for works that are valuable, widely distributed and reasonably likely to be infringed upon. As a cost-saving measure in the United States, companies sometimes do not apply for a copyright registration until just before they file an infringement suit—although this approach may compromise their ability to obtain certain kinds of damages.

This article was produced by James Smith and Shane MacLean and is made available through the generosity of Labarge Weinstein Professional Corporation.

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