BLG's Advertising, Marketing and Sponsorship Group recently
held a Continuing Legal Education session titled "Marketing
Law News Flashes: Recent Updates and Reminders". During
the CLE, one of our intellectual property partners, Hafeez Rupani,
mentioned the recent Agence France Presse/Daniel Morel case.
The case all began when a photojournalist took photos of the
aftermath of the 2010 earthquake in Haiti and posted them on
Twitter. The case illustrates the distinction between
retweeting a Twitter posting, which would be permissible, versus
using a tweeted photo on a website when there is no licence
permitting such use. It also reinforces that just because you
found something on the Internet, it doesn't mean that you can
use it freely. Hafeez noted that "unless you are the
owner of copyright, you likely need authorization or a licence to
use a copyright-protected work."
During the CLE Hafeez also reminded us that, with the recent
amendments to Canada's Copyright Act, the default rule is now
that the photographer is the author and owner of copyright in the
photo s/he has taken; however, absent an agreement to the contrary,
an employer would be the owner of copyright in the photo if it were
taken by a photographer who they employed and who took that
photograph during the course of his/her employment.
Previously, Canada's Copyright Act provided that a person who
commissioned a photograph was the owner of copyright in the
When talking about copyright in Canada, one cannot forget about
moral rights. Moral rights give the author of a work (e.g.
photograph), the right to the integrity in the work and, where
reasonable in the circumstances, to be acknowledged by name (or
pseudonym) as the author of the work. Moral rights cannot be
assigned, but may be waived by an author, including in favour of
another party. Accordingly, if a photographer assigns
copyright in a photo, s/he may still retain moral rights unless
they are specifically waived.
Before companies and organizations start using photos off the
Internet, they need to determine whether they have a licence or
authorization to use the photos. If there is no licence or
authorization granted for the desired purpose, a licence or
authorization will likely need to be obtained. It would also
be prudent to obtain a waiver of moral rights. Hafeez
recommended that agreements get executed to address copyright
ownership and waiver of moral rights from all photographers,
whether they are employees or independent contractors.
Software license agreements generally require the customer to pay fees for the software license and related services, which fees are usually based upon the duration of the license and the manner in which the customer is allowed to use the software, together with applicable taxes and withholdings.
In less than nine months, on July 1, 2017, persons affected by a contravention of Canada's anti-spam legislation will be able to invoke a private right of action to sue for compensation and potentially substantial statutory damages.
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