What Freelancers Need To Know About Copyrights
There seems to be a lot of mis-information out there (Facebook Groups - I'm looking at you!) about copyrights in Canada.
If you are creating deliverables as part of your services, or are providing resources on your website, you should definitely have a basic understanding of copyright and how it applies to the works you create.
Not only is it important to understand 'who owns what' once a contract with a client ends, but it's also important to relay this information to your client early on in your relationship in order to manage expectations and so your client understands what they are receiving in exchange for the fee they are paying you.
For the purposes of this post, we'll be talking about copyright from the view point of a contractor relationship. You should know that employment relationships might be different, and if you are wondering about copyright ownership in the context of an employment relationship, you'll need to review your employment agreement or talk with an employment lawyer.
Ready? Let's dive in.
What is Copyright?
So what exactly is copyright? Copyright is a form of intellectual property right that protects original works of authorship. If you own the copyright in a work, you have the sole right to produce or reproduce all or part of that work. You can basically do with it what you want.
Copyright applies to all original literary, dramatic, musical and artistic works, performances, sound recordings, and communication signals.
The cool thing about copyright (and which might help you sleep better at night!) is that you get the benefit of copyright protection (subject to certain exceptions) as soon as you create something unique.
The key word here is that you actually have to create the work: Copyright does not protect ideas! So if you are brainstorming on a zoom call, you come up with a brilliant idea and then someone creates a work based on your idea, it's very unlikely you have a copyright claim against them.
In order to be protected by copyright, you must make the work “fixed.” This means that you get the work written on paper or otherwise document. For example, when you take a photo, you automatically own the copyright to that photo. If you create a workshop presentation slide deck, you own the rights to that deck.
If I Create Works for a Client, do they Automatically Own that Work?
NO! In Canada, the first owner of a copyright is the author of the work (subject to my disclaimer about employment relationships above!). Unlike our friends south of the border, in Canada, we do not have a 'work for hire' regime.
In Canada, copyright ownership is first granted to the author/creator of the work and can only be assigned in writing. It's a misconception to think that if you pay someone to create a work for you, you automatically own that work. If you are a business owner hiring contractors to create works for your business, this is important to keep in mind.
The nuances of how copyright is dealt with should be very specifically set out in a client services or contractor agreement.
Do I Have to Assign Copyright to my Client?
Well, that depends. What does your client expect and need when they hire you?
Generally, there are two options:
- Assign full copyright in the works to your client once you've been paid in full; or
- Retain copyright in the works and give your client a license to use the works for specific and limited purposes.
In certain cases, it makes sense to assign full copyright ownership in the works to your client. If your client is hiring you to create their logo, their expectation is likely that once the work is completed, they have full ownership of that work, and can enforce their rights if need be. It wouldn't really make sense in this case for the creator to retain the logo. Instead, the original creator could assign copyright to their client and retain a limited license to use the logo for their own portfolio and marketing purposes only. This also gives the client peace of mind that their logo isn't going to be repurposed, and likely what their expectation was.
In certain other instances, it make sense or is industry standard that copyright remains with the creator of the work, and a license is granted to the client to use the works for limited and specific purposes.
Licenses vary depending on the work and may have certain restrictions tied to them. For example, it is common for a wedding photographer to give a limited license to the happy couple to use the photos for personal use only. This would restrict the couple from selling the photographs to wedding bloggers or stock imagery sites, and in fact, there would be repercussions for doing this. The license could also specific that when displaying photos on their personal instagram page, no filters are to be applied. This helps uphold the integrity of the photo, and thus the photographer's quality of work and reputation.
Whether or not you decide to keep the copyright on your work depends on a number of factors, including what is common practice in your specific industry, whether you wish to retain the rights to the work after delivery to the client, and what your clients expectations are. It is important that the specifics about who owns the copyright at the end of contract is discussed with your client and set out clearly in your contract. If you are granting a license to use the works to your client only, it's important to clearly set out the restrictions of that license too. Your client might not even be aware of these nuances, and I believe it is the service provider's responsibility to let their client know about them.
Do I Need to Register Copyright to Enforce it?
As mentioned above, you automatically are granted copyright in your work the moment you create it. In Canada, you don’t need to register your copyright in order to take action against someone who has infringed on your copyright.
However, registering your copyright with the Canadian Intellectual Property Office does have its benefits. Getting a certificate of registration from the time you file can be used in court as evidence that you own the protected work in the event of an infringement claim. It's something to consider if you have created a work that is particularly important to your business, especially since the fee is fairly affordable, at $50.00 in Canada and easy to do. Having this copyright registration in hand when you need it ultimately strengthens your case against infringement.
However, to start a lawsuit for copyright infringement in the US, you must first have your work registered with the US Copyright office.
In the event you find someone is using your work without your permission, it's a great time to reach out to a lawyer for advice.
Do I need to use the © Symbol to protect my work?
There is no requirement to use the © symbol in order to get copyright protections. However, using the © symbol behind the title of your work for instance, is a clear indicator to the public that you are the creator of the work, even if the work is not registered. It's not a bad idea to use this symbol on resources that are easily accessible to the public, as a mark of your ownership. On our digital resources for instance, we often use: "© Contracts Market Inc. 2022 All Rights Reserved" as evidence of our copyright.
All of our contract templates and website bundles, have clauses dealing specifically with intellectual property and copyrights. These are easy to customize to exactly how you need in your business!
As always, If you have general questions about copyright, feel free to reach out to me. If you need specific advice or want to pursue a copyright infringer, it's a good idea to reach out to a lawyer local to you!