In March 2009, the Ontario Superior Court of Justice had
occasion to consider the scope of the presumption under the
Copyright Act of an employer's ownership of copyright
in works created by an employee in the course of his
The case of Corso v. NEBS Business Products Limited
[(2009) 176 A.C.W.S. (3d)] involved a claim for wrongful dismissal
by Mr. Corso, and a counterclaim by the employer NEBS Business
Products Limited (NEBS), for a declaration that it was the owner of
copyright in certain materials created by Mr. Corso, largely on his
NEBS had dismissed Mr. Corso after it discovered that Mr. Corso
was secretly developing a product called eVault, which would be a
chequeless method of dealing with accounts payable. The Court found
that this product was competitive with his employer's PAYweb
business (which was a chequeless method of dealing with payroll),
and that the eVault product had the potential to undermine his
employer's larger cheque business. The Court found that it was
part of Mr. Corso's job to think of new ideas to expand the
functionality of the PAYweb software, and that the functionality of
the eVault system had been under active consideration by NEBS.
The Court found just cause for termination of Mr. Corso's
employment, given the fundamental breakdown in trust as a result of
the employee's willingness to put his own self-interest ahead
of his duty, in relation to a matter that went to the heart of his
The factual determinations of the Court in relation to the
finding of just cause for dismissal were key to its findings of
copyright ownership. Under section 13(3) of the Copyright
Act, where a copyrightable work is made by an employee, and
that work was made "in the course of his employment,"
then "the person by whom the author was employed shall, in the
absence of an agreement to the contrary, be the first owner of the
Although it appears that Mr. Corso had argued that copyright in
the eVault program remained with him, because it was a personal
project, and completed after work hours, the Court noted that
"it was part of Mr. Corso's duty to use his creative
skills to generate concepts such as eVault for the benefit of his
employer and it is immaterial that it was created largely on his
own time." Accordingly, the Court confirmed that it was NEBS
that was the ownership of all copyrights in the eVault program, as
well as related development materials, screen shots and source
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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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