Ownership, Licensing, Registration, and Infringement

AuthorCameron Hutchison
 
Ownership, Licensing, Registration, and
is chapter addresses the following practical questions about copy-
right ownership and matters related to it: Who is entitled to ownership
of a copyright? In what circumstances is it advantageous to register a
copyright interest? How may a copyright interest be licensed or sold
to others? To what extent can provisions in the Copyright Act be varied
by contract? And what is the nature of copyright infringement action?
Two further questions of particular relevance to the digital environment
will also be discussed: the nature and legality of open-source licensing,
and the rules pertaining to uncovering the identity of purported in-
fringers on the Internet.
e Copyright Act designates certain individuals or entities as f‌irst own-
ers of a copyright. In the case of neighbouring rights, the f‌irst owner is
the performer in the performance, the maker of the sound recording, or the
broadcaster of a communication signal. In the case of works, the f‌irst
1 Act, s 24. See discussion of “maker” of the sound recording, as well as “broadcaster,”
in Chapter 3.
  
owner of the copyright is the author (or authors). One major exception
to this rule for works is stipulated in section ():
Where the author of a work was in the employment of some other per-
son under a contract of service or apprenticeship and the work was
made in the course of his employment by that person, the person by
whom the author was employed shall, in the absence of any agreement
to the contrary, be the f‌irst owner of the copyright, but where the work
is an article or other contribution to a newspaper, magazine or similar
periodical, there shall, in the absence of any agreement to the contrary,
be deemed to be reserved to the author a right to restrain the publica-
tion of the work, otherwise than as part of a newspaper, magazine or
similar periodical.
ere are two propositions in this rule. First, there is a negative right of
restraint given to an employee journalist over the re-publication of her
article without permission. Second, an employer, under certain circum-
stances, may own the copyright of their employee author.
For an employer to gain ownership of an employee author’s copy-
right, three conditions must be met: () there is an employment con-
tract, () the work is made in the course of employment, and () there is
no agreement suggesting otherwise. e f‌irst requirement may be met
even though the employment contract is unwritten. Problems may
arise where the author claims to be an independent operator performing
a contract for service rather than an employee. e characterization of
employee versus independent operator arises in several legal contexts,
including vicarious liability in tort. In that context, the Supreme Court
held that such determinations are made after a highly contextualized
inquiry though generally courts should look to factors such as degree
of control, f‌inancial risk, and ownership of equipment to determine the
existence of an employment relationship. Second, the work must be
2 Section 13(1). See discussion of authorship in Chapter 2.
3 Century 21 Canada Limited Partnership v Rogers Communications Inc, 2011 BCSC 1196
[Century 21].
4 671122 Ontario Ltd v Sagaz Industries Canada Inc, 2001 SCC 59 at para 47:
The central question is whether the person who has been engaged to perform
the services is performing them as a person in business on his own account. In
making this determination, the level of control the employer has over the worker’s
activities will always be a factor. However, other factors to consider include
whether the worker provides his or her own equipment, whether the worker hires

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