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Protecting Your Content Online

By: Christopher Heer, Annette Latoszewska | Last updated: March 23, 2020
In Canada, as in many other countries, copyright protection exists as soon as a work is created so long as the conditions set out in the Copyright Act are met (the work must be an original expression of an idea that is fixed in material form).

As soon as you create such a work, you have the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever. This gives the author (or owner) sole control over what may happen with their works - copies, adaptations and derivative works (for example) may not be produced without the author or owner’s permission.

Unfortunately, however, when operating online, some users fail to appreciate that permission is required to reproduce a work or find it all too easy to help themselves to original creations without first seeking permission.

Fortunately, further steps can be taken to maximize copyright protection while operating online.

Copyright Registation

A copyright registration provides a formal record of your ownership of copyright in a work that can be used as an important defence mechanism domestically, and in many instances beyond. Registration of copyright requires an application to be filed with your domestic intellectual property or copyright office.

This registration will protect your copyright at home but will also entitle you to protection around the world as a result of an international agreement on copyright called the Berne Convention.

The agreement dictates that countries party to it must give works originating in any of the other signatory countries the same protection they give to works originating in their own country without that protection being conditioned on any formalities. This means that your work is automatically protected not only in your country but also in the 176 other countries that are parties to the convention.

While registration is not a requirement for copyright to subsist in a work, registration is an enormously valuable asset and a wise part of a defensive copyright strategy. There are several reasons for this.

A copyright registration serves as evidence of your ownership of a work and of your copyright in said work. That evidence can play an important role in proving that your copyright has been infringed and lessens the burden on the copyright owner should they find themselves before a court.

A registration can also positively impact the amount in damages one may be able to recover. In a situation where a copyright owner alleges infringement in the form of a demand letter, appending a copy of a registration can serve as a powerful offensive tactic.

Ignorance of the existence of copyright is not a defence for infringement. One cannot photocopy a protected work and then claim that they did not know that it was protected by copyright as a defence to their actions.

However, the Copyright Act outlines a secondary form of infringement. In a case of secondary, or indirect infringement, individuals can be held liable for infringement even where they did not personally make the copies of the copyrighted subject matter.

In a case like this the copyright holder will have to prove that the infringing party knew or ought to have known that the work was protected by copyright.

If at the date of the infringement the copyright was duly registered under the Copyright Act, a defendant will be deemed to have had reasonable ground for suspecting that copyright subsisted in the work. Accordingly, having a registration provides the copyright holder with a significant advantage when faced with a case of secondary infringement.

Evidence of copyright may also shield you from a provision of the Copyright Act which limits the statutory damages recoverable from a defendant found to have infringed copyright if the defendant was unaware their conduct was infringing. Where a copyright registration exists, the argument that the defendant was unaware they were infringing that copyright becomes much more difficult to make.

Notice of Copyright

Whether or not you have registered your copyright, the copyright owner is entitled to mark his or her work with the copyright symbol: ©.

Your work is protected with or without the use of the symbol, but the use of a copyright notice acts as a valuable reminder to others that the work is protected by copyright. A copyright notice signals to the public that the author of the work has taken steps to protect it and may deter unauthorized use of that work out of fear that the author will enforce their rights.

Further, a visible copyright notice is additional evidence that a defendant knew what they were doing infringed copyright, as discussed above. To give notice of copyright, you should mark your work with the above symbol together with your name (the name of the copyright owner) and the year of first publication.

A common practice is to include this notice of copyright as a watermark – faint text superimposed on the copyrighted work. This watermark dissuades unauthorized use of a work and may be removed in the case of authorized use for which the author is compensated.

Terms of Use

If you are operating a website that contains original content that you want to protect you might also consider including a set of terms of use for your site. Terms of use, terms and conditions, or terms of service, all refer to a legal document which outlines the parameters of your relationship with the individuals accessing your online content.

You will find terms of use on most, if not all, of the websites you access today. The content of any given terms of use document will vary between websites as these terms are drafted to be responsive to the needs and potential risks and liabilities of the particular business. Generally, terms of use will serve to limit liability, expressly prohibit unauthorized use of content, assert ownership of intellectual property, etc.

Carefully drafted terms of use can be a legally effective contract between you and the users of your site. Where terms of use expressly prohibit reproduction of the site’s content, they may empower the site owner with a cause of action in breach of contract in addition to any claim that the site owner may have for copyright infringement.

In fact, a 2011 case decided in the Supreme Court of British Columbia, having established that the defendants were aware of the plaintiff’s terms of use, the terms were held to be binding on them. Canadian courts have held that where terms of use are present on a website and the infringing party was aware of the terms, the terms are, indeed, binding upon them.

Moreover, Canadian courts have not required that the site user expressly agree to the terms. Rather, the Courts in Canada have agreed that where terms of use exist on a site, stipulate that by continuing to use the site the user has agreed to the terms, and the users goes ahead, and continues to use the site, the user has, in fact, accepted the terms of use.

This type of agreement is commonly referred to as a browse wrap agreement and can be a powerful tool for owners of sites that contain copyrighted materials.

A "click wrap" agreement is an even more noticeable format for terms of use. A click-wrap agreement requires a user to click to indicate their agreement to the terms of use in order to proceed to navigate a webpage.

The clickwrap agreement often takes the form of a checkbox and a statement next to it indicating “I agree to the Terms & Conditions” or similar. The “click wrap” agreement is an excellent tool for providing notice of copyright because a defendant could not have accessed the webpage and the copyrighted content therein without having been informed of the copyright which subsists in that content.

The Walled Garden Approach

One of the most secure ways to limit access to copyrighted material is to use a “walled garden”. A walled garden is a form of restricted browsing environment.

Access to the browsing environment itself may be limited, or, the browsing environment may restrict access to content external to it. A simple example is a web portal requiring user login.

By storing your copyrighted content within the bounds of such a walled garden, you limit the accessibility of that content and can require a paid account or subscription to access it. This approach enables you to monetize your work and ensure that you are compensated for it.

While the walled garden approach may be preferred to making a work openly accessible on the web, it may remain difficult in either case to restrict an individual’s use of your work once they gain access to it.

Copyright Infringement Litigation and Outcomes

Protecting your intellectual property rights is a worthwhile investment. Failing to put effective and comprehensive protections in place can result in extensive litigation with issues of ownership, knowledge, and infringement of copyright all needing to be determined.

In a recent case out of the Quebec Court, the plaintiff alleged the defendant infringed their copyright in over one hundred photos of inflatable games by continuing use of the photos without permission after their business relationship was terminated. After a detailed investigation into the ownership of the photos, the copyright therein, and whether the defendant’s use constituted infringement, the plaintiffs were awarded a reduced sum of $10,800 in damages.

Conclusion

To be sure your work is effectively protected and to reduce the likelihood of expensive and time-consuming litigation down the road, contact us to discuss book a consultation or strategy session with one of our lawyers. We can help you develop a copyright strategy catered to your industry and circumstances that will help you protect your investment in and maintain control over your creative works.