Intellectual property

How BC law treats it

Patents and copyright are federal subjects under the Constitution Act, 1867, and trademarks are governed by the federal Trademarks Act. Registrations are handled by the Canadian Intellectual Property Office (CIPO), a federal agency. There is no British Columbia intellectual property office or provincial IP registry. Each right protects something different. Copyright protects original expression, including software code, which the Copyright Act treats as a literary work. It arises automatically and generally lasts for the author's life plus 70 years. A trademark protects a brand; registration gives a 10 year renewable national right, while unregistered marks are protected by passing off. A patent protects a new, useful and inventive invention for 20 years from filing in exchange for public disclosure. An industrial design registration protects the visual features of a product. Trade secrets and know-how cannot be registered and are protected by confidentiality agreements and breach of confidence (Lac Minerals Ltd v International Corona Resources Ltd). Ownership is where most business problems arise. Under the Copyright Act, an employer owns copyright in works created by an employee in the course of employment unless agreed otherwise (s. 13(3)), but an independent contractor keeps copyright unless it is assigned in writing signed by the owner (s. 13(4)). Moral rights cannot be assigned but can be waived (s. 14.1). Software is usually protected by a combination of copyright in the code, trade secret protection for source code, licence terms and, for some technical inventions, patents.

What it means for your business

For many BC startups, intellectual property is the most valuable asset on the balance sheet. Investors and buyers will check that the company, not a founder or contractor, owns its code, brand and content. Gaps in ownership or an unregistered brand that conflicts with someone else's mark can delay a financing, reduce a sale price or force a rebrand. A simple IP inventory and written assignments from everyone who built the product prevent most of these problems. Example: A Victoria software company preparing for a seed round discovers that its core platform was written by a freelance developer with no written agreement. Before closing, it obtains a written copyright assignment and moral rights waiver so the investors' due diligence is satisfied.

Risks and common mistakes

Assuming a business name registration or incorporation protects the brand as a trademark. Paying a contractor to build software or design a logo without a written assignment of copyright. Publicly disclosing an invention, such as at a trade show, before considering patent protection. Sharing confidential know-how with partners or employees without a confidentiality agreement. Believing there is a BC registry where intellectual property can be filed.