This recent decision provides a good case study on software
development, licensing and copyright issues. This is a lawsuit
about copyright in certain software computer programs. Harmony
Consulting Ltd. ("Harmony") claimed that it was the owner
of certain software and sued G.A. Foss Transport Ltd. ("Foss
Transport") and its principals, for copyright
Software companies can learn some valuable lessons from this
case. Perhaps the most important lesson is that software licensing
and copyright law is a complex area. The next important point is
that well-drafted contracts can prevent or solve a lot of disputes.
Lastly, clear employment agreements can help clarify copyright
ownership. Here are five points to remember:
The court reminded us that computer programming that is
dictated by the operating system or reflects common programming
practices is not original expression and will not enjoy copyright
Remember: an assignment of copyright must be in writing. An
assignment in one's mind is not a valid assignment. In this
case, the retroactive written assignment was not accepted by the
Another important point: Copyright infringement does not arise
out of a breach of contract, but is violated only if the infringer
does something (such as copying) that only the owner can do within
the confines of the Copyright Act. For example, exceeding
user licenses does not constitute infringement.
An infringement of moral rights is not tantamount to an
infringement of copyright.
In this case, copyright ownership might have been determined
differently on the employment issue – in other words, a
different court might have decided that Mr. Chari was never
formally an employee of either of his companies, so he maintained
ownership himself. In which case, the entire case would have fallen
on that point.
Here, the software program in dispute was based on the Microsoft
Access platform, which contains a "design view" to view
code. In the court's opinion, using "design view"
simply allows a user to see the objects and programming. As the
court said, there is no copyright infringement in looking at the
programming. However, the result might have been much different in
the case of proprietary software that was not based on an
off-the-shelf platform such as Microsoft Access.
For more updates on the law of software licensing, visit ipblog.ca.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Federal Court dismissed a motion by Apotex seeking particulars from Allergan's pleading relating to the prior art, inventive concept, promised utility and sound prediction of utility of the patents at issue.
Last year we saw the Canadian Courts release trademark decisions that granted a rare interlocutory injunction, issued jailed sentences for failure to comply with injunctive relief, grappled with trademark and internet issues...
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).