Intellectual Property FAQs
Introduction
These Frequently Asked Questions about Intellectual Property (IP) cover some of the main IP topics that affect ESDC. If your questions remain unanswered, feel free to contact the Intellectual Property Centre of Excellence (IPCOE). At ESDC, the IPCOE is the main point of contact for IP-related questions.
1. General IP Questions
1.1 What is intellectual property (IP)?
For answers to general questions like this one, please refer to the Canadian Intellectual Property Office (CIPO, an agency of Innovation Canada) website as a key resource. You should also review the definitions in the ESDC IP Management Policy, section 7.
1.2 What is a license?
CIPO defines an IP license as a legal agreement granted by the owner of some IP (called the “licensor”) to someone (the “licensee”) that gives the licensee permission to use the IP. A strong license will state certain specific purposes and/or conditions for the use. It will often limit the use to certain location(s), language(s), media and time period(s).
A license does not transfer ownership of the IP, and therefore does not automatically grant the licensee the right to unrestricted use of the IP. That is why, even if you buy a piece of software or a photograph using a credit card, you may not be able to use it for commercial purposes. Often, these items are priced and licensed for personal use – if a big organization like ESDC wants to use them, we must negotiate to obtain the proper license and, often, pay a higher price. For help with procurement, contact the ESDC Procurement Team.
1.3 What documents do I need to keep on file about IP?
The IP Management Policy, section 8.5.2, sets minimum documentation requirements. These documents are required for good file management, and so that you can respond to the annual IP report request. We have posted guidance explaining how to document your requirement (purchasing) files and how to document your grants & contributions and transfer payment agreement files.
Overall, you must have enough documents to clearly show the ownership and licenses of any IP involved in the file. This includes documents to prove Crown ownership, or the terms and permissions of use (such as licenses) for any IP that the Crown does not own.
Failure to keep adequate documents could potentially put ESDC at legal and financial risk of “infringing” on the IP (breaking the IP rules).
2. Copyright Questions
2.1 What is copyright?
Copyright is one type of IP. It is defined in the Copyright Act. Copyright gives authors, artists, composers, and other creators a way to control, and profit from, the use of their works.
Copyright does not protect mere ideas. It begins when an idea is fixed in a tangible medium of expression for the first time, including electronic expression, such as books, drawings, presentations, reports, photographs, designs, videos, graphics, maps, music and software.
2.2 What does copyright protect?
Copyright commonly protects the following types of original work – and this is just a partial list. Protection applies whether or not anyone has registered the copyright.
- Literary works (books, pamphlets, computer programs, and other text-based works)
- Dramatic works (films, plays, screenplays, scripts)
- Musical works (songs, compositions)
- Artistic works (paintings, drawings, maps, photographs, sculptures, plans, architecture)
The Copyright Act grants performers certain rights in terms of their performances. These rights may have an impact on promotional or advertising or other external and even internal communications products, prepared by or for ESDC.
2.3 What does copyright mean for ESDC?
ESDC employees must consider copyright whenever they deal with external (non-ESDC) sources of media such as images, photographs, software and written documents. ESDC must respect the copyright owner’s legal rights. Generally, ESDC owns the copyright on works that ESDC employees (public servants) create in the course of their work-related duties. ESDC employees must treat work they prepare in the course of their duties as belonging to their employer.
2.4 Does the Copyright Act apply to materials on the Internet/Web?
Yes, because the Internet is really just another channel for publishing and distributing information: just because it is on the Internet/Web does not mean you can use it without regard for copyright. The legal rules still apply! Simply because the Internet provides easy access to the information does not mean that the information is available without limitations. Simply because somebody else shared a photograph or piece of music online does not mean that you can do anything you want with that photograph or piece of music.
To oversimplify: If you see a car that you do not own sitting unlocked with the keys in the ignition, is it OK for you to just drive off? No. For analogous reasons, as an ESDC employee you cannot take and use a work from the Internet without considering who owns the work and/or has a license and with what restrictions on the permitted use.
2.5 Can ESDC excerpt a copyrighted work without getting a license to it?
In some cases, the answer is yes. Legally, standards exist in Canada where if a person only uses some (and not a “substantial portion,” which is a legal notion) of an overall copyrighted work, this can be considered “fair dealing.” The “fair dealing” exceptions to infringement are complex and are identified in the Copyright Act.
For instance, you are generally allowed to quote a sentence or two taken from a long text and attribute the quote to the author. You are not allowed to copy-paste the whole or big chunks (a substantial portion) of an article; an author might be able to claim payment or infringement for this type of use, if ESDC did not have the appropriate permission.
In addition, you should be careful not to take the words out of context, or you might infringe on other legal rights. For instance, if you make it sound like the author supports a position that he or she publicly opposes you may have infringed on the author’s moral rights. Moral rights protect the author in several areas, including against having their work distorted.
For all questions about fair dealing, infringement, substantial portions and moral rights, contact the IPCOE.
3. Learning More
3.1 Where can I learn more and who can I contact about IP at ESDC?
The ESDC IP Management Policy and the Intellectual Property Centre of Excellence site offer extensive resource links, and the Policy has a list of key responsibilities. Please review the policy and contact the groups listed there as needed.
For matters related to IP under contracts, contact the ESDC Procurement Team (contact the individual Procurement Specialist assigned to your file) before you contact the IPCOE.
To access photographs that suit your group’s needs, you may contact the Photo Bank team (Public Affairs and Stakeholder Relations Branch).
You may also find the Canada School of Public Service offerings, including the C282 course on Intellectual Property procurement or purchasing, to be helpful.
Note: All Legal Services requests about IP are coordinated through the IPCOE, as per the IP Management Policy. If you have a legal question about IP, send it to the IPCOE, not to Legal Services.