Intellectual Property: Key Concepts

Intellectual Property

Intellectual property - Anything that comes into being through invention or artistic creation. When an intellectual property is also real property, it is possible to own one but not the other – so that owning a painting (real property right) does not automatically give you the right to make copies of it (intellectual property right).

Intellectual property

  • Anything that comes into being through invention or artistic creation. When an intellectual property is also real property, it is possible to own one but not the other – so that owning a painting (real property right) does not automatically give you the right to make copies of it (intellectual property right).

Copyright

  • The right of an owner of intellectual property to control how that property is copied, altered, sold, etc. In most countries today copyright does not have to be registered, but the property must be (largely) finished – ideas cannot be copyrighted.

Public domain

  • Intellectual property for which no copyright exists is in the public domain. This means that anyone can copy, alter, or sell it without permission or payment to anyone. Material created before the development of copyright law is in the public domain; as well, property passes into the public domain after a certain amount of time has passed (the exact amount varies from country to country.) In some countries it was also necessary to re-register trademarks after a certain amount of time, but this is generally no longer true.

Trademark

  • A phrase, image, logo, etc. that is used to sell or identify a product or service. Trademarks must be established through use and they must be registered. Trademark is only violated if the owner can show that you are in some way profiting from your use of the trademark or degrading its value as a trademark. You could, for instance, choose to call your auto repair shop MacDonald’s Garage without fear, but if your sign featured a golden “M” you would be liable because you would be profiting from the recognizable quality of the McDonald’s logo.

Genericized trademark

  • A trademark that has lost its protected status. This usually happens because a term which originally only describes a single brand (e.g. “Zipper”) comes to be used to describe a broad category (toothed fasteners.)

Fair dealing

  • In Canada, the Fair Dealing clause in the Copyright Act lets you use copyrighted works without permission from the owner of the copyright, but only in a very limited number of ways. For more detailed information, consult the section on Fair Dealing for Media Education [1].

Fair use

  • In the United States, the principle of fair use lets you use a copyrighted work in a "transformative" way so that what you create is substantially different and not derivative of the original, "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."[2] Examples include:
    • Quoting from a song, novel or other work in a review or a similar work of criticism.
    • Quoting from a work in support of a political or academic argument.
    • Parodying an existing work (though performers who parody specific songs often choose to get permission from the copyright holders, to avoid possible problems).
  • As well, to be fair use the new work should only use as much of the original as is necessary for its purposes and must not take the place of the original or make it less valuable to the copyright holder. (For that reason, adding annotations to a movie would not count as fair use because you could still watch the movie just to enjoy it, as you would with the original work.)
  • Finally, if the new work is intended for "non profit educational purposes" it is more likely to be considered fair use than if it is done for profit.

Technological Protection Measures

  • Technological Protection Measures (TPMs), also known as "digital locks," have a special status in Canadian copyright law. These are features built into either files or devices that control access to content or prevent a user from making copies of it. The changes to the Copyright Act made in 2012 make it illegal to get around TPMs in any way, even if doing so is necessary to exercise user rights defined in the Act (such as Fair Dealing) and also forbid the sale and distribution of devices or tools (including computer programs) designed to allow users to get around TPMs.

 

*Note: This information is NOT intended as legal advice. If you are facing a legal issue dealing with intellectual property law, consult a lawyer.

[1] Copyright Act (1997), sections 29-32
[2] Title 17 of the United States Code, section 107.