Below is an excerpt from John McKeown's November Mailer where he discusses two final comments about protecting product packaging and copyright: first consideration should be given to who was the author of the work; second, although it may sound trite, there are benefits associated with using the copyright notice although it is not mandatory to do so.
The Author and Owner of Copyright
The Copyright Act provides that, subject to an exception for works made in the course of employment, the author of a work shall be the first owner of the copyright in the work. The copyright owner is entitled to exercise the rights set out in the Act, including the right to authorize others to exercise those rights. In addition, the author is entitled to exercise the moral rights associated with the work.
The term "author" is not defined, but generally the author of a work is the person who actually creates it. In most cases it will be readily apparent who is the 'author' of a work but there are some situations which are unclear. In these situations it must be determined who exercised the skill and judgment resulting in the expression of the work in material form.
The exception provides that where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of employment by that person, the author's employer is, in the absence of any agreement to the contrary, the first owner of the copyright.
In order for the exception to apply:
a) the author must be in the employment of some other person under a contract of service or apprenticeship;
b) the work must be made in the course of employment by that person; and
c) there must be the "absence of any agreement to the contrary".
If these conditions are satisfied the author's employer will be the first owner of copyright in the work without any assignment being necessary. In all other cases the author is the owner of the copyright. This means that if a work is created by an outside agency or the like they will own the copyright and a written assignment is required to change this.
Marking
If copies of the work published with the authority of the author or copyright owner bear the symbol © accompanied by the name of the copyright owner and the year of first publication placed in such manner and location as to give reasonable notice of claim of copyright there will be two advantageous results. First, such a notice will be sufficient to avoid a defence under the Act to the effect that the defendant was not aware of the existence of copyright and had no reason to suspect that copyright subsisted in the work. Second, in any proceedings for infringement of copyright if the defendant puts in issue the existence of copyright or the plaintiff's title and no assignment or licence granting an interest in the copyright has been registered, the person whose name is printed or indicated on the work in the usual manner will, unless the contrary is proved, be presumed to be the owner of the copyright in question.
2014 INTA Leadership Meeting
I will be attending this meeting which is being held in Phoenix, Arizona from November 11-14, 2014. If you will be attending the meeting and would like to meet, please let me know.
Click here to read the entire mailer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
