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Copyright
Copyright in Canada is automatic (it’s magic! it just happens!), upon the creation of an original work and lasts from the moment of creation to 50 years after the death of the creator (or last surviving co-writer). Technically, then, it’s not necessary to formally "copyright" (i.e. register with the Copyright Office) your songs or compositions. However, if you’re ever accused of stealing someone else’s song, or someone accuses you of stealing their big hit, it is highly advisable to have evidence in place that establishes ownership and date of creation. There are a few common practices to safeguard your work:
Important Stuff to know about registering a copyright The Canadian Intellectual Property Office (CIPO) will register "titles" but not lead sheets, manuscripts or recordings. The U.S. copyright office (the Library of Congress) requires a lead sheet or manuscript for unpublished works, and a record or sheet music for published works. Because of lower fees and broader services, SOCAN recommends you use the Library of Congress if you require a formal registration. On all tapes, lead sheets and manuscripts containing your work, clearly identify yourself, your address and your telephone number. Be sure to use the standardized Universal Copyright Convention identification in its correct order: the copyright symbol ©, the name of the copyright owner, and the year of creation. In other words: © John Doe, 1998. The Canadian Copyright Act recognizes two separate rights that apply to music copyrights:
Performing and reproduction rights belong to the composer and/or lyricist of a musical work. Certain rights may be assigned to other parties, such as a music publisher. Generally speaking, the composer is also the publisher, until they get into the big world of publishing companies. The latest amendments to the Copyright Act will see the establishment of a new right: 3) The "neighboring" right: which will belong to the performer and the producers of the recording. In effect, this right will mean that the performers and record companies will be paid for the performances of their works through broadcast means. We’ll update this section later, when we have details and know what we’re talking about. COPYRIGHT: WHAT IT IS, WHAT IT ISN'T The federal agency responsible for registering copyright in Canada is the Copyright Office. Registration is official recognition of your copyright claim, recording details (author, dates) & providing a certificate. The Office maintains records of copyright for public use. However, staff will not interpret the Copyright Act for you - you should consult a lawyer for professional advice. The Office is part of an agency called the Canadian Intellectual Property Office (CIPO). "Copyright" means the right to copy. Only the owner (usually the creator) is allowed to reproduce or give per-mission to reproduce. This also applies to performances of the piece, including copying of cassettes for broadcast/ rental. Copyright applies to all musical works in material form - words & music, music, or lyrics only (then considered a literary work). It applies to all types of recordings, or "mechanical contrivances". There is a separate copy-right for the musical work (e.g. a song) & the device itself (i.e. a CD). The song and the recording are considered two different works. A work must be original to obtain copyright protection; as that can sometimes be hard to determine, cases often arise as to whether the work has been copied from someone else, in whole or part. Copyrights should not be confused with "trademarks". Trademarks are used to distinguish the goods or services of one person from those of another (i.e. slogans, product names). And "patents" protect new and useful inventions but do not cover any artistic qualities of an article. Titles, names, word combinations, and plots or characters are usually not protected by copyright. It is not possible to copyright an idea - i.e. a plot for a Broadway musical - until you have a recorded/written work. If you write a story or song using factual information, the expression of the information is what's protected, not the facts, which are considered part of the public domain (everyone's property). And you cannot hold a copyright for a work that is in the public domain, but you can adapt or translate it and hold a copyright of the adaptation. Copyright would apply to a song, a play, a novel; but not the title of the song, the idea for the plot, or the facts used in the novel. Copyright (in Canada) usually exists for the life of the author & the remainder of the calendar year in which the author dies, plus 50 years following the end of that calendar year. After that, the work becomes part of the public domain. However, for sound recordings (cassettes, CDs) copyright lasts for the remainder of the calendar year in which the master recording was created, plus 50 years. You do not have to register your copyright in order to have protection, but doing so will provide you with a certificate which can be helpful if your work is ever infringed. Registering does not guarantee that your claim will be recognized as legitimate - the Copyright Office does not check that your work is actually original. And the Office will not ensure that your copyright is not being infringed - it's totally up to you. If you choose to launch legal action, the courts will decide. The Copyright Act would then enact criminal remedies if infringement or piracy is found. In the case of a legal dispute, you do not have to prove ownership; your opponent must disprove it. To register your copyright through the Copyright Office, you must submit an application form and fee. The Office does not see a copy of your work or check if the title if already taken. Each song, recording, etc. is a separate work and would require a separate application and fee. You must, however, send a copy of your work (recording) to the National Library of Canada if it contains any Canadian content. You are not required, under the Copyright Act, to mark your work. But marking your work with a copyright notice (©, the name of the owner and the year of first publication) can remind others that it is copyrighted. (You do not need to be registered to use a copyright notice.) Performing rights societies are collectives dealing with musical works, collecting royalties on the behalf of composers, lyricists, songwriters & music publishers for public performance & broadcast of music. There is only one such organization in Canada - SOCAN (The Society of Composers, Authors and Music Publishers of Canada). A standard method of protecting your copyright is to mail your work to yourself via registered mail, with your copyright notice indicated on the lyric sheet. Don't open the envelope, but make a note on it as to what songs are enclosed, and put the envelope someplace safe. Should a question of copyright ownership ever arise, you will have a federal stamp indicating the date of creation. Another good idea is to keep records of industry people you send demos/CDs to. Demos often get passed around, so even your cassette labels should carry your copyright. While it is highly unlikely that someone who loves your song would decide to steal it rather than paying you a small fee for the use of it, it can't hurt to keep good records. That includes using your copyright notice on any of your scribbled lyrics or lead sheets. The point is to protect yourself by proving date of creation. A ROSE, BY ANY OTHER NAME...A LAYMAN'S GUIDE TO COPYRIGHT AND TRADEMARKS Please remember that this is for informational purposes only - retain your own legal counsel before making any major decisions! You've come up with a really cool band name. You love it, it fits your band perfectly, and you don't ever want to change it. Now what can you do to protect it? Make sure you are the first one to think of it. If you unwittingly choose the same name as a band who has achieved success, in or out of Canada, you may find yourself with a "cease and desist" notice. You also have to check for bands who may have used the name sometime in the past and, while they may not be performing anymore, have released recordings using the name. You will want to ensure that your chosen name is free of restrictions before you start to build a reputation or release albums. But don't limit yourself to one name. Before you begin your searches, come up with a list of alternates to check at the same time. You should also have a band agreement stating who owns the name, whether or not you trademark it. It's important to search all avenues before you apply for trademark. Once you apply, you don't get your money back - even if the name isn't available. Once you have completed all your searches and are convinced that you are the first band to invent this brilliant name, start by registering it on the internet, so other bands will know it's taken. If you find another band using the name in the future, contact them and let them know when you began using it. Obviously trademarking offers the best legal protection. But if you can establish "first use", you have "Common Law" rights (see below). And registering your name in every country would cost a fortune. Start with the markets where you will be visible (i.e. Canada). What
is a trademark? There are three basic categories of trademarks. The one applicable to bands is "words or symbols that distinguish the wares or services of a specific firm or individual." Trademarking in Canada does not protect you in other countries. If your services/products are sold in other countries, you should consider applying for foreign registration. Contact a trademark agent or the embassy of the country in question to find out about procedures. You cannot copyright a band name. The correct legal protection is a trademark. Within trademark law there is a category called servicemarks. A trademark identifies a product, while a servicemark identifies a service (duh). As a band's business is "providing entertainment services", a servicemark is the proper tool to protect a band name. The federal agency responsible for registering trademarks in Canada is the Trademarks Office (TMO), directed by the Registrar of Trademarks. The TMO is part of a larger agency called the Canadian Intellectual Property Office (CIPO), which is part of Industry Canada. CIPO handles other forms of intellectual property as well (remember "Copyrights" from the last Session?) The TMO receives applications for trademarks, issues registrations, keeps records and provides information to the public. To
Register, or Not to Register Registration is direct evidence of ownership, and helps ward off potential infringers. The process of registration, with its checks for conflicting trademarks, will ensure that you are claiming a unique mark, and help you avoid infringing other parties' rights. In a dispute, the registered owner does not have to prove ownership; the onus is on the challenger. Use of an unregistered trademark can lead to a lengthy, expensive legal dispute over who has the right to use it. If you fail to use your mark for an extended period, your registration may be cancelled. Registration gives you the exclusive right to use the mark across Canada for 15 years, renewable every 15 years thereafter. Once registered, you may sell or otherwise transfer your rights to a trademark through a process called assignment. You may also license rights to your trademark. But
first, is your name original? Why do you need a preliminary search? It helps you determine whether your application has a chance for success. It helps you avoid infringing other people's trademarks. Before you apply for registration, your agent should conduct a thorough search of trademark records to see if your trademark could be confused with someone else's. This will determine if your application would be a waste of time and money in its present form. You may consult one of the companies licensed to use the electronic database, or hire a freelance trademark searcher or registered trademark agent. Fees may range from $250-1000. Freelance searchers & trademark agents are listed in your local yellow pages under "Searchers of Records" and "Trademarks". Most Sask. law firms have a trademark lawyer. To do a proper search, you will have to check for all possible versions of the mark. For a word mark, look for all conceivable spellings. The TMO cannot conduct the search for you, or advise you on whether your application will meet all criteria and be original. This can only happen in the examination process, after you've filed and pay the dues. *Trade
names Trademark
agents Who
can register a trademark? How
do you register? How
much does it cost? The process:
When the TMO receives your app, it:
Will
the TMO tell you during your preliminary search if your trademark can be registered? Things you can't register as trademarks:
Marking
Requirements Policing
your trademark What do I need to include in my application?
There are 175 countries that register trademarks and 60 which allow the registration of entertainment service-marks. Even if you focus on the five or so most important jurisdictions (Great Britain, Canada, Germany, Mexico and France), you are still talking about a great deal of money for trademark protection on a worldwide basis. Another option you should be aware of is incorporation. If you incorporate your band, there may be tax advantages; plus, they will automatically do a NUANS search (see above) before letting you incorporate. The cost is around $300, and it offers your name some legal protection (although not the same level as trademarking). In conclusion, you should: first, research the proposed name for conflicting uses; second, document the dates and territory where you use the band name; third, take steps to protect the name through servicemarks. Our website (saskrecording.ca) includes links to CIPO, or visit the sources below if you need further clarification. Places to start looking for other bands with your name or similar names…
and
to "register" your name so others know it's taken: Sources,
or for further info: Need
some ideas for names? Try these for fun: Brief descriptions of some of the main ones:: CIPO Canadian Intellectual Property
Office Library of Congress U.S. Registrar of Copyrights WIPO A substantial part of the activities and the resources of WIPO are devoted to developing cooperation between countries. The number of States members of WIPO was 159 on November 15, 1996. World Intellectual Property
Organization For more information regarding copyright, you should also check out SOCAN’s site, in their FAQ section, BMI: Songwriters & Copyright or the CMRRA site. Who are those people and what do they have to do with copyrights? The collection of performing rights royalties (from airplay and performances of the song) is generally assigned to an organization by the publisher, such as SOCAN in Canada, or ASCAP, BMI, or SESAC in the US. In plain English, these people get the money from radio stations for the airplay of songs, and then pay the songwriters or publishers. The collection of mechanical rights royalties, from reproduction of the work, is generally assigned to CMRRA (Canada) or SODRAC (Quebec) (the only agencies in Canada for this purpose), and The Harry Fox Agency (US). The mechanical royalty rate is usually an industry standard and not negotiable unless a separate agreement is made between the publisher and somebody evil, like a major label, for example. Again, the plain English, these people get the money from the record companies for records sold, and pay the songwriters or publishers. For more information on mechanical rights agencies, please click the MECHANICAL RIGHTS button on your left. For more information on the performing rights, and those agencies, please click the PERFORMING RIGHTS button on your left. Thank you, and have a nice day. Following are brief descriptions and contact information for some of the major publishing associations, who can also provide you with answers regarding the copyrights of music. CMPA CMPA SPACQ SPACQ MPA MPA NMPA NMPA |
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