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Copyright vs. Trademark in Canada – A Brief Comparison and Overview

Folder with copyright trademark tabs

Creating something that is your own, whether it’s a piece of music or artwork or something more tangible like a new product or invention, is a source of great pride. However, if you decide that you want to publicize your new creation, you have to be careful to make sure you truly own it. Copyright law, trademark law, and patent applications will likely all come into play. By understanding how these areas of the law work, you can prevent creation theft.

What Is Copyright Law?

Copyright stamp

In Canada, copyrighted material is protected under the Copyright Act of Canada, which was enacted in 1921 and has since been updated, most recently in 1997. A similar, even more recent form of copyright protection is 2011 bill the Copyright Modernization Act or C-11. This bill updates protections, including protecting creations digitally through the Internet and other media.

Most materials, like photographed pictures, are only copyrighted for 50 years in Canada. Anonymous writing is also protected under that length of time unless someone discovers who the author is, in which case the copyright law changes. If the creator dies, they get an additional 50 years of copyright in most cases. Once a copyright expires, the content enters the public domain, meaning anyone can use it without crediting the original creator. To be protected under copyright law, you have to prove that your work is original. You can then perform it, display it, read it, share it, record it, translate it, and publish it.

What Is Trademark Law?

Trademark symbol

Trademarks protect the names of brands and products. A company itself may register as a trade name while registering its products as trademarks. If you are approved for a trademark in Canada, it’s only good for 15 years. If you want to continue trademarking your products, you have to apply again. There are certain things that cannot be trademarked, including similar logos and names to those that already exist, foreign language terms, locations, most adjectives, and common first and last names.

If your trademark is unregistered, you still have the same amount of protection for 15 years. Common law may also dictate that your unregistered trademark becomes yours. However, it is recommended that you do register a trademark to avoid legal repercussions. If someone tries to steal your idea and you never registered your trademark, it becomes much more difficult to prove in court that the intellectual or creative property is yours.

What Is a Patent Application?

If you have what you believe is original creative property, you may want to apply for a patent. A patent designates you as the sole owner of that creation. You mostly hear of patents when it comes to inventions, but they can cover any new creation. Before you fill out an application, you have to decide if your creation is an industrial design or a patent. An industrial design is an oftentimes 3D handmade item, although you can use other aids like tools to build it. A patent has to be completely original and new, but you can reinvent something as long as no one has done it before you.

To ensure that your creation is original, you can search Canada’s patent databases for creations similar to yours. If you can’t find anything exactly like your creation, Canadian government agencies recommend that you fill out your patent application immediately. After all, if someone happens to beat you to it, you have no legal recourse. The first creator of a new or reimagined product can get the rights to it, and anyone else who comes in second cannot.

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