Copyright and Information Technology


copyright 1997, 1998, 1999  Donald M. Cameron , Aird & Berlis


Contents

1. Introduction to Copyright

2. Subject Matter - defined works

3. Term

4. Registration

5. Infringement

6. Exemptions to Infringement

7. Moral Rights

8. Remedies

9. International Conventions

10. Ownership

11. Assignment

12. Licensing

13. Copyright Collectives

14. Criminal Sanctions

15. Relationship to Other IP rights

Endnotes


Introduction to Copyright

Copyright is the right to prevent others from copying all or substantially all of a "work" in which copyright subsists. The Copyright Act defines copyright as:

"the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever".(1)

Generally speaking, the copyright in a work protects its specific form, rather than the ideas suggested by or underlying the work. Originally intended to protect creative works of art and literature, copyright is one of the easiest and best ways to protect computer software.

Copyright protects the form or selection of information, but not the information itself. The ideas expressed in a copyrighted work can be taken and re-used, so long as the form or selection of information is not substantially duplicated.

Copyright also includes the sole right to record a literary, dramatic or musical work where the record may be mechanically performed or delivered, and to communicate a work to the public by telecommunication.

how to get Copyright

Copyright is automatic: subject to residency or citizenship requirements for the author or authors, once a "work" is created, copyright subsists in it. Copyright is a creature of statute; there is no "common law" copyright. The Federal Government of Canada has exclusive jurisdiction under the Copyright Act. Registration of copyright is not a prerequisite to copyright protection.

originality & creativity

The prerequisite for all works is that they be "original". The work must have been created by the author and not copied. As the name suggests, "work" (referred to in the case law as "effort") must be expended by the author to create the "work" in which copyright subsists.

But what kind of "work" is required: creative effort, or simly effort? Some cases say that there must be creativity.(2) In the United States, some degree of creativity must be present; the arrangement of names, addresses and phone numbers in a telephone directory was a non-original form which did not protect the phone book by copyright.(3) In the United Kingdom, products produced by time and effort (sometimes referred to as works created by "the sweat of the brow") can result in copyrighted works.

"Original" does not mean "novel". Different programmers can write similar programs and have copyright in each, so long as they do not copy from one another.

Combinations of old things in an original way can be protected as artistic works (eg. a collage of photographs).

Dramatic works need not have a high degree of originality.

The variation of an existing work causing significant changes can result in an original work.

authorship

Copyright automatically subsists in Canada in every original literary, dramatic, musical and artistic work so long as the author, at the date of the making of the work, has met certain criteria(4).

The author must have been, at the date of the making of the work, a British subject, a resident of "Her Majesty's Realms and Territories" or a citizen or subject of a foreign country that has adhered to the Berne Copyright Convention. If the work is a published work, then it must first have been published within "Her Majesty's Realms and Territories" or in such foreign country.

Section 5(2) of the Copyright Act provides that the protection conferred by the Act can be extended to other foreign countries if notice is given by the Minister of the Federal Government responsible for the administration of the Copyright Act. Until 1989, the Copyright Act conferred rights on American authors by reason of a bilateral arrangement between Canada and the United States of America(5). The United States recently became a member of the Berne Convention and therefore future works will be protected under the protection granted to signatories of that Convention.

The Copyright Act does not define the term "author", and there have been no amendments to the Act to cover problems related to authorship which are peculiar to computer programs. Thus questions of authorship which arise when the specifications for a computer program are created by one person, or persons, and the code is created by another person or persons, are left for the Courts to decide. Similarly, questions relating to authorship of computer-generated programs will have to be considered by the Courts without reference to specific provisions of the Act.

place of first publication

If the work was first published within "Her Majesty's Realms and Territories", then copyright subsists in it.

fixation

If a work has no form, then it is not protected by copyright. The work must be "fixed" or stored in some way for copyright to attach. The program must be stored on disk or the graphic stored or printed before copyright subsists.

In 1988 the Copyright Act was amended to provide copyright protection to live television broadcasts even though they were not recorded in any "form", so long as they were simultaneously recorded.(6) When these images are stored on a videotape or on permanent memory, then the work is "fixed" and protected.

2. Subject matter - defined works

Only certain kinds of "works" are protected by copyright. and they are specifically defined in the Copyright Act. They are artistic, dramatic, literary and musical works. The definitions of these classes of works are said to "include" specific types of works and, therefore, may also include other specific works that are not recited.

"Literary Work"

The general definition of "every literary, dramatic, musical and artistic work" includes "books, pamphlets and other writings" as forms of their expression.

Literary works include:

tables (blank business forms, tables of numbers)

compilations (a collection of different works, so long as originality was involved in creating the compilation)

translations(7), and

computer programs (a set of instructions of statements expressed, fixed, embodied or stored in any manner, that is to be used directly or indirectly in a computer in order to bring about a specific result).(8)

Although not specifically included as a "literary work", a "collective work" is a work written in distinct parts by different authors. Examples include newspapers, magazines and encyclopaedias.

Until the amendments made to the Copyright Act in 1988, the Copyright Act had not been amended to any significant extent since 1924, long before the advent of computers, computer programs and integrated circuits.

Prior to the amendment of the Copyright Act in 1988 to specifically define "literary works" as including computer programs, the Courts had gradually come to the same conclusion. Computer source code was considered to be an expression of thought in original, alphanumeric form. The fact that it could not be read by the human eye in its reproduced state did not matter. The "chip" version of the computer software was a "reproduction" of the hard copy version.(9) The Canadian Copyright Act was amended in 1911 to do away with any requirement that in order for a work to be covered by copyright, the copy or reproduction of the work had to be in human-readable form. The requirement of "readability" or "appearance to the eye" found in the jurisprudence required no more than that there be a method by which the work that is alleged to infringe can be visually compared for the purpose of determining whether copying has occurred. Computer programs can be read out of the computer and compared.(10)

In the mid-1980's there was some debate in the Courts as to whether a computer program stored on or running on a computer was a copy of the program or an implementation of it.(11) That concept was dismissed by the Federal Court of Appeal holding that the copy was found in the "static circuitry of the chip".(12)

If a computer program is compiled from a source code version to an object code version the result is not a "translation" under the Copyright Act but rather is a reproduction. The Concise Oxford dictionary defined "translation" as being:

"...express the sense of (word, sentence, speech, book, poem) in or into another language, in or to another form of representation" (emphasis added)

A translation is always an interpretation rather than a one-for-one copy.(13)

"Artistic Work"

Thankfully, the Copyright Act provides assistance in answering the universal question: "What is Art?" by enumerating certain things that are included as artistic works. Artistic works include:

paintings,

drawings (eg. a trade mark can be protected by copyright.

maps,

charts,

plans (including those for machinery or buildings),

photographs (including photolithographs and works produced by processes similar to photography),

engravings (including etchings, lithographs, woodcuts and prints),

sculptures (including casts and models),

works of artistic craftsmanship, and

architectural works of art (ie. a building or structure or a model of one).

"Musical Work"

A musical work is any combination of melody and harmony, printed, reduced to writing or otherwise graphically produced or reproduced. It is the sheet music, not the sound of the music itself; the latter is the "performance" of the musical work.

A musical work combined with the literary work of the lyrics makes up a song.

The form of production irrelevant:

"every original literary, dramatic, musical and artistic work" includes every original production in the literary, scientific or artistic domain, whatever may be the mode or form of its expression, such as...;

"Dramatic Work"

Dramatic works include:

any piece for recitation,

choreographic work (eg. a ballet. A plot is not necessary) or entertainment in a dumb show,

the scenic arrangement or acting form of which is fixed in writing or otherwise, and

any cinematograph production where the arrangement or acting form or the combination of incidents represented give the work an original character.

There must be either some "pre-recording" of the dramatic work either by script or other means of "fixing" its form.

3. Term

Copyright does not last indefinitely. The term of copyright protection is usually the life of the author plus fifty years.

Where a work is produced by the collaboration of two or more authors and where the contributions of the authors are not distinct from each other, the work is considered to be a work of "joint authorship" under the Copyright Act. The term of protection of works of joint authorship runs until fifty years after the death of the last surviving joint author.

Photographs are an exception to the general rule: their term of copyright is fifty years from the making of the original negative.

4. Registration

Copyright registrations are obtained in Canada by filing an application with the Copyright Office of the Canadian Intelllectual Property Office.

If the application meets the formal requirements, and the required official fee is paid, then registration occurs. Registration may be obtained in a matter of days, if it is urgent. Registration is not a prerequisite for copyright protection because of the automatic operation of s.5 of the Copyright Act.

There is no requirement in Canada to file a copy of the "work" with the copyright application.

In the United States, either a copy of the work must be filed with the application or, in the case of lengthy documents such as computer source code listings, only the first and last twenty-five pages need be filed. If those pages contain confidential information, they may be redacted (or "Zebra-striped" sufficiently to block out enough of the information so that its confidentiality will not be lost while leaving enough exposed so that it can be compared with an infringing copy).

In Canada there is no examination of the application to determine whether the "work" is capable of having copyright subsist in it or even whether it is an original "work". All that is required is a brief description of the "work".

The Effect of Registration

Once copyright is registered, certain presumptions arise from the provisions of the Copyright Act:

"s.53(2) A certificate of registration of copyright in a work is evidence that copyright subsists in the work and that the person registered is the owner of such copyright."

If the copyright in a "work" is registered as of the date of infringement, an infringer is deemed to have had reasonable ground for suspecting that copyright subsisted in the work. This removes the possible the defence of not knowingly infringing copyright. An "innocent infringer" is not liable for damages for the period when the infringer did not suspect that copyright protected the work. Marking the work with a copyright notice will also put potential infringers on notice.

5. Infringement

Prohibited acts

Copyright is infringed whenever anyone does, without the consent of the owner of the copyright, anything that only the owner has the exclusive right to do.

copying

In both the definition of a literary work and the definition of copyright under the Canadian Copyright Act, a literary work was to be protected "whatever may be the mode or form of its expression" and could not be copied in "any material form whatever" without the permission of the copyright owner. "Any material form whatever" included the program as embodied in a ROM computer chip(15) and may even include displaying the work on a computer screen. Glen Bloom and Thomas Denholm have suggested that the U.K. case of Bookmakers' Afternoon Greyhound Services Ltd. v. Wilf Gilbert (Staffordshire) Ltd. {1994} F.S.R. 723 (Ch.Div.) which held that the materialization of a work on a television screen constituted a reproduction in a material form, could be easily analogized to the materialization of the work on a computer screen.

In order for there to be infringement of copyright, the entire work, or a substantial part of it must have been copied. Literal copying occurs when the work is copied one hundred percent. Substantial infringement occurs when a" substantial" portion has been copied. "Substantial" is a measure of the quality of what was copied, not the quantity.

Copyright is infringed by the copying of a computer program stored in "its electrical code version" in a computer where the computer program originally existed as a written literary work. (16)

performance in public

Copyright is also infringed if the work is performed "in public" (Copyright Act, s. 3(1)). Transmission of a signal carrying a musical work by cable to a home is a "performance in public". (16a) A performance is any acoustic representation of a work or any visual representation of dramatic action in a work (Copyright Act s. 2)

telecommunicating

It is an infringement of copyright to communicate a work to the public by telecommunication (Copyright Act s. 2: "a transmission of signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system").

By definition (Copyright Act s. 3(4)), communicating a work to the public by telecommunication is not performing or delivering the work in public.

authorizing infringement

It is an infringement of copyright to authorize other acts of infringment, such a copying:

6. Exemptions to Infringement

Sub-section 27(2)(a) of the Copyright Act excludes certain acts from being infringement of copyright, including:

fair dealing

Under Canadian law, the adjective "private" modifies "study" but not "research" (as shown in the French version of the Act: "... a des fins d'etude privee ou de recherche."). Therefore copying for commercial research likely constitutes fair dealing in Canada so long as the use is "fair". Multiple copies of sales training materials for internal training purposes is not fair dealing (Tom Hopkins v. Wall & Redekop Realty). The person making the copy should be the person who uses it for private study (Sillitoe v. McGraw-Hill Book Company (U.K.) Ltd.).

A person who is an employee or who has otherwise transferred the copyright in a work is entitled to retain his or her documents, notes, papers and other research material concerning the work so long as the person does not reproduce the work itself or otherwise infringe the copyright owner's rights in the work. The courts have held that although a person may own the copyright in certain works, and could prevent the author from copying it, the research notes and materials of the programmer are exempted by s. 27(2)(a) and (b) of the Copyright Act as being material "...made by him for the purpose of the work..." which could be used by the person. If on the other hand, the copyright owner is able to show that the research material is its property (eg. as the result of a contract of employment) the result may be different.

In certain situations, ss. 27(2)(l) of the Act permits the copying or modification of computer software by people other than the copyright holder. A person who owns an authorized copy of a computer program is entitled to make a single reproduction of the copy by adapting, modifying or converting the computer program or by translating it into another computer language. The right to make these copies is available only if the following conditions are met:

1) the reproduction is essentially for the compatibility of the computer program with a particular computer;

2) the reproduction is solely for that person's own use; and

3) the reproduction is immediately destroyed when the person ceases to be the owner of the copy of the computer program.

The making of a single reproduction of a copy of a computer program for backup purposes is permitted if only the third condition above is met (see ss. 27(2)(m)):

"the making by a person who owns a copy of a computer program, which copy is authorized by the owner of the copyright, of a single reproduction for backup purposes of the copy or of a reproduction referred to in paragraph (l) if the person proves that the reproduction is destroyed forthwith when the person ceases to be the owner of the copy of the computer program;"

The Copyright Act does not define what is meant by "the person's own use". It is not clear from the context whether the use is restricted to the execution of the program or whether the use referred to may have a broader meaning. For example, to reverse engineer a program is to "use" it but it does not appear that such a use is intended to be permitted under the Act.

7. Moral Rights

The Copyright Act grants a "moral right" to an author to protect the "integrity of a work" where certain acts prejudice the honour or reputation of the author. Authors are able to prevent damage to the "integrity of the work" where the work is "distorted, mutilated or otherwise modified; or used in association with a product, service, cause or institution" to the prejudice of the honour or reputation of the author.

For example, a shopping centre put red ribbons around the necks of geese which formed a sculpture of a flock at one end of the shopping centre. The decoration was part of a campaign to decorate the shopping centre for Christmas. The artist who made the sculpture considered that the decoration damaged the integrity of the work and obtained a Court order requiring the removal of the ribbons.

Moral rights exist independently of copyright. The provisions of the Copyright Act which give ownership of copyright to employers do not vest moral rights in the employer. Moral rights must be dealt with separately by employers. Moral rights cannot be assigned but can be waived.

8. Remedies

The Traditional Remedies

A plaintiff is entitled to an injunction, damages, accounting of profits, costs and any other remedies for the infringement of a right. Unlike other intellectual property rights, the copyright owner as plaintiff is entitled to both profits and damages.

The assignee(17) of the copyright and licensees(18) of a copyrighted work are entitled to sue for infringement.

Anton Pillar orders, interlocutory injunctions and other orders

Many plaintiffs have been successful in obtaining orders requiring the disclosure of the names of suppliers, interlocutory injunctions, Anton Pillar orders and orders requiring the defendants to pay security into court in case the defendants were to lose at trial.(19)

These remedies are discretionary. The granting of these remedies therefore depends on the facts of each case.

In one of the earliest Canadian motions for an Anton Pillar order, Williams Electronics, Inc., the manufacturer of an arcade video game called MOON PATROL, brought a copyright action against several Canadian distributors and users of unauthorized copies of the MOON PATROL game. On November 1, 1982, Williams Electronics, Inc. obtained an order of the Court(20) requiring one of the defendants to produce to Williams' lawyers an affidavit setting out the names of its suppliers and customers of the allegedly infringing video games.

Approximately one month later, on December 8, 1982, the Court refused to grant an interlocutory injunction in the case of Atari Inc. v. Video Amusements of Canada Limited et al(21) but required the defendant to deposit security with the Court sufficient to compensate the plaintiff if it succeeded at trial.

In Nintendo of America, Inc. v. Coinex Video Games Inc. et al(22) the Federal Court of Appeal granted an Anton Pillar order against 28 defendants who allegedly manufactured, sold and distributed unauthorized copies of the DONKEY KONG and DONKEY KONG JUNIOR video games.

As in the Atari case, Nintendo had registered the copyright in its video game. Since the Nintendo motion was made unilaterally, the validity of these registrations was not under attack before the Federal Court of Appeal.

The Anton Pillar order granted by the Federal Court of Appeal required the defendants to permit the representatives of the plaintiff to enter their premises and remove "games, apparatus, plans, drawings, circuitry and component parts" directly relating to the Nintendo DONKEY KONG and DONKEY KONG JUNIOR games, so as to protect the evidence pending the trial.

In late 1983, Apple Computer, Inc. applied for an interlocutory injunction in the Supreme Court of Ontario to stop three defendants from distributing and selling GOLDEN II personal computers, "clones" of the APPLE II personal computer(23). Although the Atari v. Video Amusements case was not referred to in the decision, both the facts and the outcome were similar.

Apple had registered the copyright in its AUTOSTART ROM and APPLESOFT operating systems programs as published literary works and its Disk Controller Card and Motherboard circuit boards as artistic works. The two operating system programs were stored on an electronic chip and a floppy disk respectively.

The defendants argued that the operating systems could not be the subject of copyright. The issue was not determined, the judge having decided that, where any doubt exists as to the plaintiff's right, the question of whether or not an interlocutory injunction should be granted, should be determined after evaluating the nature of the injuries each party might suffer, if the injunction is granted or is not granted.

As in the Atari case, the injunction was not granted but the defendants were required to provide substantial security for the plaintiff's potential damages. A subsequent failure of the defendants to post security resulted in the granting of an interlocutory injunction(24).

The Canadian Association Against Software Theft ("CAAST"), a group whose members include Microsoft, Quarterdeck and others has had repeated success in obtaining Anton Pillar orders against software pirates.

Limitation Period

An action for copyright infringement must be brought within three (3) years of the infringing activity.

Conversion: ownership of infringing copies

In addition to the usual industrial property remedies for infringement (i.e. an injunction, damages, etc.), the Copyright Act provides in s. 38(25) that infringing copies of a work are deemed to be the property of the owner of copyright. The copyright owner can have a Court order the person possessing the infringing copies to transfer them to the copyright owner. This wrongful possession of the copyright owner's property is called "conversion". This remedy is unique to copyright law in the intellectual property context.

Section 38 also provides that all all plates used or intended to be used for the production of the infringing copies are deemed to be the property of the copyright owner. "Plates" have been held to include the computers used to make copies of computer programs and have been seized in Anton Pillar orders.

International Conventions

Conventions are international agreements. There are two principal international Conventions that relate to copyright protection: the Berne Convention and; the Universal Copyright Convention.

Berne

The Berne Convention is an agreement between many nations (including Canada) dating back to the 1800's by which countries granted reciprocal rights to authors in other countries. By adhering to the Berne Convention, a country agrees to extend to citizens of the other countries the same copyright protection that they give to their own citizens. Thanks to the Berne Convention, Canadians receive copyright protection for their works in many other countries in the world and citizens of those other countries receive copyright protection in Canada for their works.

On March 1, 1989 the United States became a signatory to the Berne Convention and works created by nationals of the United States after that date are protected under that agreement.

Under the Berne Convention, there is no requirement to register the copyright in the work in order for copyright to subsist. Copyright arises automatically upon the creation of the work.

There are various versions of the Berne Convention. The rights depend upon version has been adopted by the particular country. Canada is a signatory to the Rome version of the Berne Convention.

Universal

The Universal Copyright Convention is another international agreement, which like the Berne Convention gives to its adherents reciprocal rights. This convention suited countries such as the United States of America who had copyright laws which favoured their citizens or businesses (the U.S. law required books of foreign authors to be first published in the United States).

The Universal Copyright Convention started the requirement of putting a copyright notice (" ") on the work in order for international protection to be granted. The full notice is the copyright symbol or the word "copyright", the name of the copyright owner, followed by the year of publication of the work. The notice also educates possible infringers that the work is protected by copyright and therefore should not be infringed.

10. Ownership

In general, the author of the work is the first owner of copyright. The exceptions to the general rule are where the author has agreed that someone else is to be the owner or the Copyright Act has deemed that someone else will be the first owner.

If the author is employed for the purpose of creating the works, then the employer is the first owner of copyright. In effect, the Copyright Act infers from the relationship between the employer and the employee that they mean to have the employer own the copyright. There are three conditions for an employer to claim copyright ownership in a work:

1). the author of the work must be "in the employment" of the employer,

2). the author must be "under a contract of service", and

3). the work must be made in the course of the employment.

The question of ownership becomes more complicated where the author of the work is a consultant retained to create or supply a particular work. The provisions of the Copyright Act discussed above applies only to employees and does not cover contractors. If the person retaining the consultant wishes to own the copyright, he or she should have a written contract that assigns the copyright from the consultant.

Photographs are an exception to the general rule. The person who owned the negative at the time the photograph was made is deemed to be the author of the photograph. Unless there is an agreement to the contrary, the person who ordered and paid for the negative is the first owner of copyright in the photograph.

11. Assignment

If copyright is to be assigned, then the assignment must be in writing.(27) This concept is critical to remember when contracting for copyrighted works to be created y consultants or non-employees of a business.

The assignment can be for all or just some of the copyright or only for certain geographic areas or for only part of the term of the copyright. For example, the copyright in a literary work could be assigned to one publisher in one province for five years.

There is an "ownership boomerang" if the author of the copyright was the first owner of the copyright and the copyright in a work was assigned. Twenty-five years after the death of the author, the copyright automatically reverts to the author's estate.(28) This provision in the Copyright Act appears to be for the benefit of the author's family and cannot be undone even by agreement of the author.

12. Licensing

Twenty-five years after the death of the author of a published work, anyone may republish the work so long as they give the proper notice and pay a royalty of 10% to the copyright owner.

Where a work has been published but the owner of the copyright cannot be located, the Copyright Board may grant a licence. Royalties will be held for the owner if located within a few years.

Compusory licences can also be granted :

- Where books have been published but not in Canada and in sufficient demand.

- if they are books of Canadian citizens published in serial form elsewhere where no licence has been granted in Canada to publish it in serial form.

13. Copyright Collectives

The collection of royalties for performance of a musician's songs would be prohibitively expensive for an individual. Instead, there are two performing rights societies in Canada SOCAN (the Society of Composers, Authors and Music Publishers) and SDRM (Societe des Droits de Reproduction Mechanique who are Performing Rights Societies. They can grant copyright licences for the performance of musical and musical/dramatic works.

"Licensing bodies" (which are not performing rights societies) collectively administer copyright on behalf of copyright owners.

"Collecting bodies" collect royalties for the retransmission of radio and TV signals by cable TV companies. Royalties are collected and given to collecting bodies representing the copyright owners.

14. Criminal Sanctions

Criminal sanctions exist for certain types of copyright infringement: making, selling or renting infringing copies, distributing for trade to prejudicially affect the copyright owner, publicly exhibiting any infringing copy or importing infringing copies for purpose of sale.

For summary conviction proceedings the maximum fine is $25,000.00 or imprisonment for a term not exceeding six months or both. For conviction on indictment, the fine cannot exceed $1,000,000.00 or imprisonment for a term not exceeding five years, or both.

15. Relationship to Other IP rights

Industrial Designs

Copyright and moral rights are not infringed by applying a design to a useful article features dictated sole by a utilitarian function of the article. It is also not infringement of copyright or moral rights to copy the utilitarian features of the article or using any method of manufacture or construction.

Where a design is applied to a useful article and the article is reproduced industrially (ie. in a quantity of more than fifty) copyright can no longer be enforced to prevent reproduction of the article in two or three dimensions. The provision does not apply to decorations to the face of an article (like a watch face or a T-shirt), a trade mark or a pattern for wearing apparel, a representation of a real or fictitious being, event or place that is applied to an article as a feature of shape, pattern or ornament.

Such designs to be protected need to be registered as Industrial Designs.

Trade Marks

Copyright has been used to prevent trade marks that are artistic works from being copied.

A trade mark that is merely a word with no special form or artistic elements would be too short to be a literary work and be protected by copyright.

As stated above, a trade mark that is reproduced industrially still retains enforceable copyright.

Integrated Circuit Topographies

The Integrated Circuit Topography Act protects topographies for integrated "chips". A "topography" is the design of the interconnections and elements for either the making of an integrated circuit product or the elements and interconnections for the making of a customization layer or layers to be added to an integrated circuit product in an intermediate form.

The Copyright Act provides that it does not apply to any topography or to any design that is intended to generate all or part of a topography.


Endnotes

1. Copyright Act, R.S.C. 1985, c. 10, s. 3(1).

3. Feist Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340 (1991)

4. Canadian Copyright Act s.4(1).

5. Canada Gazette, 1923, p. 2157.

6. Copyright Act, s. 3(1.1).

7. A translation means a translation into another language, requiring a modification to the grammar and syntax. A transformation is a one-to-one correlation between two works in different languages and is merely a reproduction. Apple Computer v. Mackintosh (1987) 18 C.P.R. (3d) 129.

8. Copyright Act, s. 2.

9. International Business Machines Corporation et al v. Ordinateurs Spirales Inc./Spirales Computers Inc. et al(1984) 80 C.P.R. (2d) 187, 2 C.I.P.R. 56; Apple Computer v. Mackintosh Computers (1986), 10 C.P.R. (3d) 1 (F.C.T.D. per Reed J.); Mackintosh Computers Ltd. et al v. Apple Computer, Inc. et al (1987) 18 C.P.R. (3d) 129; affd (1990) 2 S.C.R. 209.

10. Apple Computer v. Mackintosh Computers (1986), 10 C.P.R. (3d) 1 (F.C.T.D. per Reed J.)

11. See Apple Computer Inc. et al v. MacIntosh Computers Ltd. (1985) 3 C.P.R. (3d) 34 where an interlocutory injunction was refused where the defendants led expert eveidence that the software was an implementation of the work and not a copy of it.

12. ibid, per Mahoney J.A.; MacGuigan, J.A.

13. ibid, Reasons of MacGuigan J., p. 22.

15. Apple Computer v. Mackintosh Computers (1986), 10 C.P.R. (3d) 1 (F.C.T.D. per Reed J.); (1988) 18 C.P.R. (3d) 129 (F.C.A.); Mackintosh Computers v. Apple Computer [1990] 2 S.C.R. 209, 30 C.P.R. (3d) 257,

16. Apple Computer v. Mackintosh Computers (1986), 10 C.P.R. (3d) 1, F.C.T.D. per Reed J. ibid.

16a. Canadian Cable Television Association v. Canada (Copyright Board)(1993), 46 C.P.R. (3d) 343 (F.C.A.).

17. Copyright Act, s. 36.

18. Copyright Act, s. 36, assuming the grant of a licence is the grant of a right, title or interest from the owner. White Rose Nurseries Ltd. v. Ashton-Potter Ltd.(1972), 7 C.P.R. (2d) 29 (F.C.T.D. per Kerr, J.) at p. 33-35; appeal allowed on an unrelated point [1972] F.C. 1442 (F.C.A. per Jackett C.J.) (1972), 9 C.P.R. (2d) 112.

19. Anton Pillar type orders, an order analogous to a search and seizure order, are discussed below in "Part II: Exercising Legal Remedies". The term "Anton Pillar" arises from the case of Anton Pillar KG. v. Manufacturing Processes Ltd. and others [1976] R.P.C. 719, where the order was first made.

20. unreported, Federal Court of Canada Action # T-7975-82.

21. unreported, Federal Court of Canada Action No. T-2658-82.

22. (1983) 46 N.R. 311, 69 C.P.R. (2d) 122.

23. Apple Computer, Inc. v. Computermat Inc., Software One Ltd. and Michael Stanford (1984) 75 C.P.R. (2d) 26.

24. Apple Computer Inc. v. Computermat Inc., (1985) 3 C.I.P.R. 209.

25. "All infringing copies of any work in which copyright subsists, or of any substantial part thereof, and all plates used or intended to be used for the production of the infringing copies, shall be deemed to be the property of the owner of the copyright, who accordingly may take proceedings for the recovery of the possession thereof or in respect of the conversion thereof."

27. Copyright Act s. 13(4).

28. Copyright Act s. 14(1).


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