Services : Worldwide Enforcement Checkup
Want to make sure that the copyrights you acquire will be enforceable worldwide? Read on!
Business people know that the real danger is not that you can make wrong decisions based on what you know but that you can make catastrophic decisions based on what you don’t know.
If you are an owner of a business in Canada or the United States, your lawyers may have pacified you into believing that they drafted a first-class agreement providing for the worldwide assignment of copyrights and a worldwide waiver of moral rights in favour of your company. This covers both the dealings with your employees (for example, software developers, copywriters or designers) and unrelated third parties.
You may have a great agreement from the perspective of Canadian or American laws. But when the contract says “worldwide” you probably expect it to give you the worldwide protection. You can’t settle for less when your products are distributed all over the world on the Internet.
Well, guess what?
This “worldwide” protection is very often merely an illusion, and a very dangerous one, at that.
It’s like relying on a website that only works in Internet Explorer 6.
Did you know that some countries protect matter that is not subject to copyright protection in Canada (and that is normally not taken into account in contracts under Canadian laws)? Did you know that some countries do not allow assignment of copyright, plain and simple? Did your lawyers tell you that unlike in Canada and the U.S., in most countries moral rights cannot be waived? If you answered ‘no’ to any of these questions, ask yourself if there is anything else you don’t know about legal fundamentals of your most important assets, your intellectual property.
Copyright laws are different across the globe, and even though most countries respect copyrights in works created in other countries, they treat them differently. Copyright is often referred to as a “bundle of rights”, meaning that the owner of copyright has the sole right to use the work in many different ways. In fact, copyright is not just one bundle of rights, it is as many bundles of rights that there are countries that are parties to international treaties for the protection of copyright.
What this means is that even if France recognizes copyright in the works created by Canadians in Canada, the scope of protection that it grants to such works (and owners) is not defined by Canadian laws, but rather by French laws and international treaties. A contract governed by Canadian (or any other national) law does not trump mandatory rules that exist in various countries.
The classic example is the decision of a French court in Turner Entertainment Co. v. Huston. There, the heirs of an American film director sued a U.S. producer in France for unauthorized colourization of a 1950 movie. The French court held that although the director had waived his moral rights by virtue of an agreement governed by American laws, such moral rights were inalienable in accordance with French laws (and so could not be waived with respect of France). Thus, the colourized version of the film was banned in France and the heirs were awarded monetary compensation.
Have a look at the international comparative survey of copyright laws. Notice that no country is like any other. Notice how many countries have laws pursuant to which moral rights are perpetual and inalienable.
What does this mean for you?
Now think about the situation where you may have a disgruntled employee. They may have received less pay when they were laid off. Or they may have been offered a better deal by your competitors. Do you always indicate the names of each of the authors with respect to each use of the works that they have created for you? What if they were to sue your company somewhere in Europe? Will your agreement protect you?
Your lawyers may have told you that if you need true worldwide protection, you need to seek legal advice in every jurisdiction to which your products may be exposed. And this is precisely what large businesses like Apple and Microsoft are doing. Most businesses cannot afford or justify such expenses.
According to the famous 80/20 principle, 80% of the results usually come from 20% of the effort. Conversely, the remaining 20% of the results usually require 80% of the effort. The closer you get to the goal of 100% of the results, the more effort you need to expend, exponentially.
In case of worldwide copyright transfers, the ratio is even higher. You may spend hundreds of thousands of dollars obtaining legal advice in every single country of the world, but even then no lawyer will ever give you a 100% guarantee.
You need to have your agreements reviewed by a lawyer with international copyright experience, by someone who understands that your market extends beyond North America. I have over 15 years of experience with copyright licenses and assignments from various jurisdictions. I have drafted and revised agreements to the satisfaction of such companies as Apple, Microsoft, Dell, Motorola, Sony and Dreamworks. See for yourself: List of former clients and List of representative matters.
Granted, it will not replace legal advice from a lawyer working in a specific jurisdiction, and if you are focusing on several specific markets, it is still a good idea to obtain such legal advice.
What I can do is to review your agreement from the perspective of Canadian law, and to suggest revisions that will significantly reduce your risks outside Canada. Reduce, not eliminate.
This is a unique offer not only because of its substance, but also because of the terms on which I offer it.
Forget hourly fees and uncertain budgets. Forget about vague and evasive responses primarily tailored to protect the lawyer, not to benefit the client. Try Outside-the-Box Legal Solutions offered by Mincov Law Corporation!
Here is how it works:
1. Contact me expessing the interest in taking advantage of the “Worldwide Enforceability Checkup” offer.
2. If I do not have a conflict of interest, I will sign and send you a retainer agreement pursuant to which I will review one agreement purporting to grant your company exclusive copyright worldwide.
3. You will sign the agreement and return it to me with a cheque for $2,500 payable to Mincov Law Corporation in trust.
4. You will send me a copy of the contract* that you would like me to review, and we will discuss it so that I can put it into your business’ perspective. I guarantee complete confidentiality.
5. If I find less than 3 serious problems with worldwide enforceability of the agreement, I will provide my revisions FOR FREE and issue a FULL REFUND. If I find 3 or more serious problems, I will keep the retainer as full consideration for my services. Period.
It is always cheaper to hire a lawyer to prevent problems than to fix them.
Successful businesses attract lawsuits. It comes with the territory. Litigation, especially litigation abroad, can be prohibitively expesive. A mere $2,500 is a very good investment in reducing the risks of a court in a distant jurisdiction ruling that you don’t own what you thought you did.
* This offer only covers agreements that have been specifically drafted by lawyers for you. Thus, it does not cover agreements that you or your accountant may have customized using a sample your assistant found on the Internet. I will gladly review these for you as well, or draft them from scratch if you need it, but I cannot guarantee my fees for such projects the way I do for this offer.