Writing software takes skill, time, and plenty of coffee. But what happens if someone copies your code? Does Canadian law protect software developers and engineers when their precious code ends up in the hands of copycats? In this article, we will cover intellectual property rights for software, how to keep your code protected, and other topics you may want to discuss with an intellectual property lawyer.
What are intellectual property rights?
Under Canadian laws, there are five types of intellectual property rights that protect your creation, invention, or product. These are:
- copyrights
- industrial designs
- patents
- trade secrets
- trademarks
Each type has its own federal law governing its registration process, protection, and remedies against infringement or piracy. The only exception is trade secrets, which do not have a specific law and are protected under common law through contracts or other related laws.
What laws apply in protecting software as intellectual property?
In Canada, software is considered intellectual property, and it may be protected as a patent, industrial design, trademark, copyright, or trade secret. Knowing your intellectual property rights for software as a developer or inventor helps you fully protect your software according to its specifications and your needs.
If you register your software as intellectual property, this must be done with the Canadian Intellectual Property Office (CIPO). You may also talk to a Canadian intellectual property lawyer who can guide you through the process of registering your software as an intellectual property.
Below, we will discuss how each type of intellectual property right for software is used under the law.
Copyrighted software
A copyright is your right as an author or artist to produce or reproduce your original creation in any form and for any purpose (usually for profit). Under the Copyright Act, the software you invented may be protected as copyright in the form of a computer program. In this case, the software is considered as a literary or artistic work, where the protection extends to the:
- software itself or the code comprising it
- visual representation of the software or the code
When registered, you will have the sole right to reproduce or rent your software as intellectual property. Although a copyright protection automatically exists the moment you created your software, it is still important to register it with the CIPO for additional protection.
For more information about copyright, watch this video from the CIPO:
To have your software protected as a copyright, consult the best intellectual property lawyers in Canada as ranked by Lexpert.
Copyright infringement
Infringement of a copyright may be committed directly or indirectly. In either case, you can file a civil action for damages or a criminal case against the violator. A civil action must be filed within three years, or a criminal case within two years. These periods start from the date of the discovery of copyright infringement.
However, the Copyright Act provides exceptions to infringement of computer programs. Some examples are:
- when it is proved that the reproduction is only for personal use
- when the reproduced copy was destroyed immediately after the copyright registration
Patented software
Patents in Canada are protected under the Patent Act. Under this law, software is generally not patentable, as it is not strictly an “invention,” which is the subject matter of patents. However, there are other ways to protect your software under the law for patents.
According to the Manual of Patent Office Practice, a computer-implemented invention may be patentable, except for abstract ideas such as:
- methods of applying skills and judgments
- methods of evaluating mathematical formulas
When you’re granted a patent as a software developer, you will have the exclusive right to use and sell your new and useful invention (i.e., your software) to the exclusion of others for a period of 20 years. Since patents in Canada are based on a “first-to-file” system, you must apply to the CIPO as soon as possible to protect your software.
Read next: Patent office forms: A checklist for patent applicants
Patent infringement
When your invented software has been patented and an infringement occurs, the Patent Act provides that you can file before any provincial or federal courts for an action on infringement. This must be filed within six years after the discovery of the infringement.
Software as an industrial design
The Industrial Design Act (IDA) protects industrial designs in Canada. The IDA defines industrial designs as the visible features on a finished article or product. Industrial designs focus more on the visible appearance of the article or product, such as its shape, configuration, pattern, or ornament, rather than its use, which is protected by other types of intellectual property laws.
Your software may be registered as an industrial design if what you are protecting are its display screens, icons, or graphical user interfaces. In other words, industrial design is proper if you’re protecting the software’s visual representations.
Infringement of industrial designs
As with any intellectual property, industrial designs are registrable with the CIPO and are valid for 10 years. An industrial design infringement case can be filed in federal court and must be initiated within three years.
Trademarked software
You may also register your new software as a trademark under the Trademarks Act. A trademark typically protects the branding of your software, making it distinguishable from other similar software. You may also have your company name or brand protected as a trade name.
While waiting for your trademark registration, your software or brand can bear a trademark symbol (™) to distinguish it from others and to protect it informally. Once registered, your software or brand can now bear the ® symbol to signify that it has been officially registered with the CIPO. This registration is valid for 10 years and is renewable after that period.
Trademark infringement
An action for trademark infringement may be filed in federal court within two years of the discovery of the alleged infringement. In case of software, trademark infringement may include selling, manufacturing, or advertising the registered trademarked software without your consent.
What are the ways to protect software against infringement or piracy?
As a software developer or owner, protecting your original work is important, especially nowadays when piracy and infringement may be committed using technology. Here are the steps that you can take to protect your software:
Enforce your intellectual property rights
Registering your intellectual property rights for software is different from enforcing it once infringement or piracy occurs. Watch this video to learn more:
Looking for law firms to help you enforce your intellectual property rights for your software? Reach out to Lexpert-ranked best intellectual property law firms in Canada.
Hire an intellectual property lawyer
If you’re wondering if getting the services of an intellectual property lawyer is worth it, here are the ways that these lawyers can help you when it comes to protecting your software:
- know what laws are applicable: since software is primarily protected under copyright law but can also be protected under other laws, talking to a lawyer will help you understand which law is most appropriate for your code and your business
- assist in registration: after determining which law applies, lawyers can help with the registration process with the CIPO, including the steps to take, required documents, and whether international registration is necessary
- help when infringement happens: in case of intellectual property infringement, whether it is a registered as a patent, copyright, or anything else, lawyers can advise clients on what the legal remedies are
- represent clients: whether before the CIPO during registration or in court for infringement cases, a lawyer can represent clients in any legal matter
Use the law against software piracy
The applicable law against software piracy in Canada is the Copyright Act. Under this law, it is illegal to copy or distribute copyrighted material for profit without any authorization from the owner or copyright holder. This is why it is important to register your software for copyright or any other intellectual property rights for software to protect it against piracy or infringement.
Intellectual property rights for software: Smart steps for software protection
More than just lines of code, software is now a business asset worth guarding. In this technological age, intellectual property rights for software can help prevent your work from falling into the wrong hands. The right protection can mean the difference between growth and costly disputes. A quick chat with an intellectual property lawyer can help you pick the best way to protect your code and your business.
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