Below is an excerpt from
John McKeown's November Mailer where he discusses two final
comments about protecting product packaging and
copyright: first consideration should be given to who was the
author of the work; second, although it may sound trite, there are
benefits associated with using the copyright notice although it is
not mandatory to do so.
The Author and Owner of Copyright
The Copyright Act provides that, subject to an exception for
works made in the course of employment, the author of a work shall
be the first owner of the copyright in the work. The copyright
owner is entitled to exercise the rights set out in the Act,
including the right to authorize others to exercise those rights.
In addition, the author is entitled to exercise the moral rights
associated with the work.
The term "author" is not defined, but generally the
author of a work is the person who actually creates it. In most
cases it will be readily apparent who is the 'author' of a
work but there are some situations which are unclear. In these
situations it must be determined who exercised the skill and
judgment resulting in the expression of the work in material
The exception provides that where the author of a work was in
the employment of some other person under a contract of service or
apprenticeship and the work was made in the course of employment by
that person, the author's employer is, in the absence of any
agreement to the contrary, the first owner of the copyright.
In order for the exception to apply:
a) the author must be in the employment of some other person
under a contract of service or apprenticeship;
b) the work must be made in the course of employment by that
c) there must be the "absence of any agreement to the
If these conditions are satisfied the author's employer will
be the first owner of copyright in the work without any assignment
being necessary. In all other cases the author is the owner of the
copyright. This means that if a work is created by an outside
agency or the like they will own the copyright and a written
assignment is required to change this.
A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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