Copyright in content
Many businesses, including medical clinics and dental offices, are re-opening after being forced to shut down by public health authorities during the COVID-19 pandemic. During the shut down, many professionals and small business owners published various articles, blog posts, informational, and educational materials in order to stay connected with their clients and patients. It may be worthwhile to consider some potentially thorny intellectual property issues surrounding all that content generated during the shut down.
Generally speaking, all content, including articles and blogs, is protected by copyright, which, among other things, prohibits the reproduction of the content without permission from the owner of the copyright. This raises the obvious question: who owns the copyright in all of the content generated before, during, or after the COVID-19 shut down?
Ownership of Copyright
By default, under subsection 13(1) of the Copyright Act, R.S.C. 1985, c. C-42, the author is the first owner of the copyright in any content they create. The default ownership rule changes in cases where the content is created in the course of employment, pursuant to subsection 13(3) of the Copyright Act. In these cases, the employer (not the author) is the first owner of the copyright.
The status of the author, as an employee (rather than an independent contractor, etc.), is essential for the employer to benefit from subsection 13(3) of the Copyright Act. Otherwise, a written assignment from the author is required to transfer ownership of the copyright in any content they create.
Dentists, physicians and other health care professionals conduct their practice in a variety of ways, including as employees, owners or co-owners of clinics, partnerships, and associate arrangements. If a professional is practicing as an employee of a clinic or hospital, any articles, pamphlets, or other informational and educational content would most likely be owned by the clinic or hospital, since this content was produced during the course of employment. However, if the professional is an independent contractor, this would not necessarily be the case.
Avoid a dispute (through clear ownership provisions)
Disputes often arise when an author of certain content leaves for a position with a competitor and the content later pops up on the competitor’s website. It is good practice to include an assignment of copyright in an employment agreement, independent contractor agreement, or any other agreement governing the working relationship between the parties. Ensuring that clear ownership provisions are included in a contract minimizes the likelihood that a dispute will arise surrounding ownership of copyright.
For more information regarding intellectual property considerations for professionals, please feel free to contact our Intellectual Property Group or our Professionals Practice Group.