Copyright protection in Canada does not depend on registration
or other steps such as marking. Protection is automatic.
Registration is permissive and is unnecessary for the subsistence
of copyright. However, the registration of copyright or an
assignment of copyright or a licence granting an interest in a
copyright does have a number of benefits.
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 the copyright. A certificate of registration of an
assignment of copyright is evidence that the right recorded on the
certificate has been assigned and that the assignee registered is
the owner of that right. A certificate of registration of a licence
granting an interest in a copyright is evidence that the interest
recorded on the certificate has been granted and that the licensee
registered is the holder of that interest.
The certificate of registration of copyright is prima
facie evidence that copyright exists. The matters set out
above will be presumed to be as described in the certificate and
the party seeking to dispute them will bear the onus of leading
credible evidence to the contrary.
In response to a statement of claim based on a certificate of
registration a defendant is not entitled to rely upon a simple
denial but must allege material facts which could, if proven, bring
into question the matters set out in the registration.
Under the CopyrightAct, a defendant who
alleges that they were not aware and had no reasonable ground for
suspecting that copyright existed in a work is not liable to any
other remedy against them other than an injunction.However, if at
the date of the infringement, the copyright in the work was duly
registered, the defendant is deemed to have had reasonable grounds
for suspecting that copyright subsisted in the work.
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.
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The Canadian Intellectual Property Office has issued a report entitled IP Canada Report 2016, discussing trends in IP use domestically, and by Canadians abroad, based on analysis of CIPO's internal data and those collected by the World Intellectual Property Organization.
The value of reliance on a trade-mark registration, as opposed to prior use, stands out sharply in the recent Federal Court of Appeal case of Pizzaiolo Restaurants Inc. v. Les Restaurants La Pizzaiolle Inc. ( 2016 FCA 256 October 28, 2016).
This is an appeal from the Federal Court's decision setting aside the Registrar of Trade-marks decision to the extent that it dismissed the applicant's opposition regarding the mark PIZZAIOLO and Design.
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